9. Comments on Proposed Decision
The proposed decision of the ALJ in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed by SCE on December 5, 2008 and by Protestant Leonhardt on December 6, 2008,40 and reply comments were filed by SCE on December 15, 2008.
SCE's comments addressed two main concerns. First, SCE requested minor non-substantive modifications to the discussion of the environmental documents for clarity and completeness, which have been incorporated herein. Second, SCE raised concerns about proposed mitigation measure HAZ-10, requiring notice to property owners when the line is energized. Since the line is now, and is expected to remain, energized with the adoption of the Proposed Project, there is no need for HAZ-10, it is infeasible, and it is eliminated herein.
Leonhardt addressed three main concerns. None rise to the level of requiring substantive revision of the decision.
First, he noted that the Commission's adoption of a "low-cost/no-cost" mitigation policy was not absolute, and that the Commission in D.04-08-046 stated that SCE's Jefferson-Martin Project had a 4% EMF mitigation budget as a target and not a cap.41
While 4% is not a hard cap, even in the cited decision 4% is discussed as a target. While each project has its mitigation plan established specifically for that project, those plans must operate within the constraints of existing policies, absent a showing of some compelling reason to deviate from those policies. Nothing in the record regarding the El Casco Project demonstrates a need to deviate from our stated policy regarding EMF mitigation.
Second, Leonhardt objected to the statement that no party had formally requested evidentiary hearings. He notes that he included in his comments in response to the Recirculated Draft EIR a request for hearings. Such a request was not formally filed in the docket of this proceeding in accordance with Commission rules or in accordance with prior ALJ rulings, and so no evidentiary hearing was requested.
If we were to consider Leonhardt's Comments as a formal request for evidentiary hearings, we would deny the request. Nothing in Leonhardt's Comments in either the formal proceeding or the environmental process raise evidentiary disputes relevant to the two questions relevant to the approval of the PTC: the adequacy of the environmental review and the overriding considerations for approving a project with environmental impacts that cannot be mitigated.
Finally, Leonhardt contends that the proposed decision failed to adequately address the cumulative visual impacts of the construction of the Proposed Project as well as the Devers-Valley segment of Devers-Palo Verde No. 2 Transmission Line Project approved in D.07-01-040. This is incorrect. The cumulative environmental impacts were considered in the CEQA Findings of Fact on page A-75 of Attachment A. Due to the large number of issues raised in the environmental review, not all are individually addressed in the discussion above. However, all have been carefully considered. Furthermore, this decision recognizes that there are environmental impacts that cannot be mitigated, and the statement of overriding considerations in Section 6.10 addresses those impacts.
40 Protestant Friedman electronically served, but did not file, a statement expressing his disagreement with the choice of the Proposed Project and reiterated his support for the PUA.
41 Leonhardt Comments, page 3.
