VI. Comments on Draft Decision of the ALJ
The draft decision of ALJ Thomas in this matter was mailed to the parties in accordance with Section (311(g)(1) of the Pub. Util. Code and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on , and reply comments were filed on .
1. The environmentally superior route, as set forth in the FEIR, is the appropriate choice for this project.
2. The environmentally superior transmission line route, in its entirety, poses less harm to the environment than do the alternate routes proposed by PG&E and other parties to this proceeding.
3. The substation location we select (and that PG&E advocates) poses equivalent environmental impacts to the location US Dataport proposes, but with fewer cost, logistical, land acquisition and other barriers than the US Dataport choice.
4. Much of the proposed transmission line will be located near significant wildlife areas populated primarily by birds, including endangered, threatened, and other special concern species.
5. The project is needed to maintain reliability of the electric transmission system in and near the northeast San Jose area south of San Francisco.
6. The environmentally superior route meets the ISO's reliability criteria.
7. We agree with the ISO's determination that the project is needed to meet projected demand for electricity in the northeast San Jose area. We do not, however, defer entirely to the ISO's determination of need. The ISO deferred to PG&E's assertions in many cases rather than testing PG&E's conclusions.
8. PG&E's cost justification for the project is not adequate. New cost information as required with regard to the route we select in this decision.
9. PG&E's estimates of land acquisition costs for overhead vs. underground construction are not reliable and require revision.
10. It is unclear from the hearing record whether overhead and underground construction costs differ because of PG&E's inadequate cost showing, especially related to land acquisition costs.
11. We are not obligated to choose the least costly route if that route causes greater environmental harm than more costly routes.
12. The ISO did not analyze the costs of PG&E's proposed route or any other route.
13. An ISO reviewer for the project worked on the project while employed by PG&E immediately prior to joining ISO staff.
14. There is no substantial evidence of harm to the Bayside Business Park - or any other party - from EMFs caused by the proposed project.
15. There is no substantial evidence that the proposed project will adversely affect property values.
16. The Commission is the lead agency under CEQA with respect to the environmental review of the project and preparation of the FEIR.
17. The Commission has conducted an environmental review of the project pursuant to CEQA.
18. The FEIR consists of the DEIR and SDEIR, revised to incorporate comments received by the Commission from the proponent, agencies, and the public, and the responses to comments.
19. The FEIR has been completed in accordance with CEQA Guidelines, Sections 15120 through 15132.
20. The Commission has reviewed and considered the information in the FEIR before approving the project.
21. The FEIR identifies significant environmental effects of the environmentally superior route that can be mitigated or avoided to the extent that they become not significant. The FEIR describes measures that will reduce or avoid such effects.
22. The mitigation measures identified in the FEIR are reasonable.
23. As lead agency under CEQA, the Commission is required to monitor the implementation of mitigation measures adopted for this project to ensure full compliance with the provisions of the monitoring program.
24. The Mitigation Monitoring, Compliance, and Reporting Plan in Section C of the FEIR conforms to the recommendations of the FEIR for measures required to mitigate or avoid environmental effects of the project that can be reduced or avoided.
25. The Commission will develop a detailed implementation plan for the Mitigation Monitoring, Compliance, and Reporting Plan.
26. The FEIR identifies the route identified as the environmentally superior route, and depicted in Appendix C to this decision, as the environmentally superior alternative to PG&E's proposed route.
27. The FEIR identifies significant environmental effects of the environmentally superior route that cannot be mitigated or avoided, as follows: (a) potential bird collision with the new overhead transmission line between Mileposts 4.1 and 6.7, and (b) the conversion of Prime Farmland to non-agricultural use at the proposed substation site; and (c) inconsistency of the McCarthy Boulevard Alternative segment with the City of Milpitas' Open Space/Conservation policy.
28. For significant effects where no feasible mitigation exists to reduce the environmental effects to less than significant, the specific overriding benefits of the environmentally superior route outweigh the significant effects on the environment. The benefits of the transmission line and substation project, provision of increased electric supply, and increased reliability to the cities of San Jose, Santa Clara and Milpitas, outweigh the potential environmental impacts.
29. We have considered and approve of the discussion in the FEIR covering parks and recreation, cultural and historic resources, environmental impacts generally, and the public comment and response section, and find that it adequately reflects our consideration of the Section 1002 factors.
1. The Commission has jurisdiction over the proposed project pursuant to Pub. Util. Code § 1001 et seq.
2. The Commission has authority to cap project costs pursuant to Pub. Util. Code § 1005.5.
3. We do not have authority to impose a "hard" cost cap that may never be increased in view of Pub. Util. Code § 1005.5(b)'s provision for increases in the cost cap.
4. The ISO has responsibility to ensure the reliability of the State's electrical system pursuant to Pub. Util. Code § 345. However, ensuring reliability and deciding that a particular transmission project should be built are two separate issues.
5. This Commission's cost cap set pursuant to Pub. Util. Code § 1005.5 has bearing on the amount of cost recovery PG&E may seek from the FERC.
6. The Commission's EMF Mitigation decision, D.93-11-013, required low - and no - cost mitigation for perceived (but unproven) health effects from EMFs. It did not require such mitigation for non-health effects.
7. The EMF Mitigation Decision's guidelines setting mitigation at 4% of project cost and 15-20% mitigation levels are not hard and fast rules. The actual low - and no - cost mitigation may deviate from these amounts in individual cases. Mitigation that creates more environmental harm than it purports to solve is not consistent with the EMF Mitigation Decision.
8. Commission approval of PG&E's application is in the public interest.
9. The processing of the DEIR, the SDEIR, and the FEIR, in this proceeding comply with the requirements of CEQA.
10. The contents of the FEIR comply with the requirements of CEQA and represent the Commission's independent judgment.
11. The FEIR should be certified for the project in accordance with CEQA.
12. The approval of the application as provided herein should be conditioned upon construction according to the environmentally superior route and the completion of the mitigation measures identified in the FEIR.
13. After considering and weighing the values of the community, benefits to parks and recreational areas, the impacts on cultural and historic resources, and the environmental impacts caused by the project, we conclude that the CPCN should be approved.
14. Based on the completed record before us, we conclude that the alternatives identified in the FEIR are infeasible, or pose more significant environmental impacts than the environmentally superior route we select in this decision.
IT IS ORDERED that:
1. A Certificate of Public Convenience and Necessity is granted to Pacific Gas and Electric Company (PG&E) to construct an approximately 7.3 mile 230 kV double circuit transmission line from near PG&E's Newark substation in Alameda County to a new substation to be constructed on property known as Los Esteros; a new 24-acre combined distribution and transmission substation with 21 kV connections, at Los Esteros; a connection of the new Los Esteros substation to the 115 kV system, via the Los Esteros to Kifer 115 kV circuit, the Los Esteros to Trimble 115 kV circuit, the Los Esteros to Montague 115 kV circuit, and the Agnews 115 kV tap circuit; and the replacement of a segment of the existing Newark to Trimble single circuit 115 kV wood pole line located along Trimble Road and Montague Expressway with a 1.4 mile double circuit steel pole line to complete a 115 kV circuit between the Los Esteros substation and the existing Montague substation.
2. The Final Environmental Impact Report (FEIR) is certified as the EIR for the project which is the subject of the application and is certified for use by responsible agencies in considering subsequent approvals for the project, or for portions thereof.
3. PG&E shall, as a condition of approval, build the project in accordance with the environmentally superior route specified in Appendix C to this decision and detailed in Section B.3 of the FEIR. In addition, PG&E shall comply with all mitigation measures specified in Section C of the FEIR (which is reproduced in Appendix E attached hereto) as directed by the Commission's Executive Director or his designee(s).
4. PG&E shall perform a detailed cost estimate of the environmentally superior route we select in this decision. It shall complete and file by Advice Letter the estimate no later than 30 days from the date this decision is mailed. No later than 15 days from the date PG&E submits the cost estimate, other parties to this proceeding may file comments on PG&E's proposed estimate.
5. PG&E's cost estimate provided for in the preceding paragraph shall not be filed under seal unless each aspect of the estimate conforms to California Rule of Court 243.1(d), relating to sealed records.
6. PG&E's land value estimates shall be supported by current, expert appraisals of the actual land it must acquire in accordance with the environmentally superior route. The estimate shall also comply with Pub. Util. Code § 1005.5(a).
7. We will use PG&E's cost estimate, and the comments on it, to set the cost cap for the project. However, if, once PG&E has developed final, detailed engineering design-based construction estimate for the environmentally superior route, this estimate is one percent or more lower than the cost estimate PG&E must submit within 30 days, PG&E shall show cause why we should not lower the Pub. Util. Code § 1005.5 cost cap to reflect the final estimate.
8. The Executive Director shall supervise and oversee construction of the project insofar as it relates to monitoring and enforcement of the mitigation conditions described in Appendix E to this decision. The Executive Director may delegate his duties to one or more Commission staff members or outside staff. The Executive Director is authorized to employ staff independent of the Commission staff to carry out such functions, including, without limitation, the on-site environmental inspection, environmental monitoring, and environmental mitigation supervision of the construction of the project. Such staff may be individually qualified professional environmental monitors or may be employed by one or more firms or organizations. In monitoring the implementation of the environmental mitigation measures described in Appendix E, the Executive Director shall attribute the acts and omissions of PG&E's employees, contractors, subcontractors, or other agents to PG&E. PG&E shall comply with all orders and directives of the Executive Director concerning implementation of the environmental mitigation measures described in Appendix E.
9. The Executive Director shall not authorize PG&E to commence actual construction until PG&E shall have entered into a cost reimbursement agreement with the Commission for the recovery of the costs of the mitigation monitoring program described in Appendix E hereto, including, but not limited to, special studies, outside staff, or Commission staff costs directly attributable to mitigation monitoring. The Executive Director is authorized to enter into an agreement with PG&E that provides for such reimbursement on terms and conditions consistent with this decision in a form satisfactory to the Executive Director. The terms and conditions of such agreement shall be deemed conditions of approval of the application to the same extent as if they were set forth in full in this decision.
10. PG&E's right to construct the project as set forth in this decision shall be subject to all other necessary state and local permitting processes and approvals.
11. PG&E shall file a written notice with the Commission, served on all parties to this proceeding, of its agreement, executed by an officer of PG&E duly authorized (as evidenced by a resolution of its board of directors duly authenticated by a secretary or assistant secretary of PG&E) to acknowledge PG&E's acceptance of the conditions set forth in Ordering Paragraphs 1 through 11 and 13, inclusive, of this decision. Failure to file such notice within 75 days of the effective date of this decision shall result in the lapse of the authority granted by this decision.
12. The Executive Director shall file a Notice of Determination for the project as required by the California Environmental Quality Act and the regulations promulgated pursuant thereto.
13. Upon satisfactory completion of the project, a notice of completion shall be filed with the Executive Director by the Energy Division.
14. Application 99-09-029 is closed.
This order is effective today.
Dated , at San Francisco, California.
SEE FORMAL FILE FOR APPENDICES
