DGX/KLM/dhn 4/7/2006
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
In the Matter of the Application of San Diego Gas & Electric Company (U 902 E) for a Certificate of Public Convenience and Necessity for the Sunrise Powerlink Transmission Project. |
Application 05-12-014 (Filed December 14, 2005) |
RULING OF ASSIGNED COMMISSIONER AND ASSIGNED ADMINISTRATIVE LAW JUDGE DENYING THE MOTION OF SAN DIEGO GAS & ELECTRIC COMPANY AND SETTING FURTHER PROCEDURAL STEPS
Summary
This ruling denies the motion of San Diego Gas & Electric Company (SDG&E) to initiate an evaluation of the need for its proposed Sunrise Powerlink project in this proceeding prior to SDG&E's filing of its Proponent's Environmental Assessment (PEA) and related information required by General Order (GO) 131-D, Rule 17.1 of the Commission's Rules of Practice and Procedure (Rules), and Public Utilities Code Section (§) 1003. Based on recent filings by SDG&E indicating that they will be amending their application in July 2006, we are unable to proceed absent such amendments and the motion is effectively moot.
We remain committed to issuing a timely decision in this proceeding. To that end, we list herein specific actions that we direct be taken to attempt to process the case consistent with the aggressive timeline SDG&E has proposed in its application and to avoid delay in the projected online date for the project, were it to be approved.
Background
SDG&E filed this application for authority to construct a 500 kilovolt (kV) transmission line omitting some of the information required by § 1003,
GO 131-D, and Rule 17.1 of our Rules.1 SDG&E stated its intent to provide the Proponent's Environmental Assessment and other required information after it had determined a precise project path and conducted the necessarily environmental review, which it expects will be ready in July 2006. SDG&E's application included a motion seeking Commission approval to defer filing of the required information, asking the Commission to explore the issue of project need in advance of SDG&E's providing the outstanding project information, and requesting issuance of a Commission decision on need before completion of the Commission's California Environmental Quality Act (CEQA) analysis.
On February 10, 2006, the Assigned Commissioner issued a ruling (Ruling) in this proceeding following a prehearing conference on January 31, 2006. The Ruling sought briefs addressing SDG&E's motion and solicited responses to eight questions, four factual questions for SDG&E and four questions for all parties, including SDG&E, to address.2
The following parties filed responses to the Ruling on February 24, 2006: SDG&E, the Division of Ratepayer Advocates (DRA), the Center for Biological Diversity and the San Diego Chapter of the Sierra Club (CBC/Sierra Club), the City of San Diego (City), Coral Power, Duke Energy North America (Duke), PPM Energy, Imperial Irrigation District (IID), and Ramona Alliance Against Sunrise Powerlink (RAASP). Generally, Coral Power and PPM Energy support SDG&E's motion, while the remaining parties oppose it.
On March 22, 2006, SDG&E submitted to the Commission, and to the service list for this proceeding, a letter from a corporate officer dated March 21st, an IID press release dated March 20th, and a press clipping dated March 17th, indicating that they had entered into a memorandum of agreement (MOA) with IID to form a partnership for building a portion of the proposed Sunrise project and were open to whatever regulatory process and procedural schedule the Commission deemed necessary, with SDG&E's focus on meeting their proposed mid-2007 target date for a final Commission decision. These documents are attached to this ruling as Appendix A.
On April 5, 2006, SDG&E submitted to the Commission, and to the service list for this proceeding, a second letter dated April 4th and a copy of the MOA referenced in the March 21st letter. This second letter stated that SDG&E expects to amend its application in July 2006, including updates to the economic analysis of the project included in the application and the completed PEA. In addition, SDG&E states that that the California Independent System Operator (ISO) will have completed its review by July, allowing the ISO's analysis and determination to be considered by the Commission after that time. These documents are attached to this ruling as Appendix B.
SDG&E's Response to the Ruling & Responses in Support of SDG&E's Motion
In its response to the Ruling, SDG&E explained that it is proposing that the Commission consider the issue of project need in a Phase 1 of the proceeding and adopt a decision on need by the 3rd quarter of 2006. Under SDG&E's proposal, this decision would be interim for the purposes of considering rehearing and court challenges but irrevocable and not subject to re-litigation in a Phase 2, absent new factual information, when CEQA review would be conducted. Both Phase 1 and Phase 2 would consider project alternatives, including the no-project alternative, and the Phase 1 record would inform the Phase 2 record. SDG&E believes consideration of project need concurrent with the CEQA review could delay the issuance of a final decision on the project.3
In response to concerns that SDG&E's procedural proposal is unlawful, SDG&E argues that that the courts have granted the Commission great deference in statutory interpretation and procedural matters. SDG&E states the Commission has issued a finding of need in advance of its CEQA review in several cases, including the Mission Miguel transmission project, the Otay Mesa Power Purchase Agreement transmission project, and the Devers-Palo Verde 2 transmission project.
PPM Energy and Coral Power, which state their desire to utilize the proposed line to provide access to newly developed projects or to relieve congestion between San Diego's load center and their existing projects, support SDG&E's motion.
Responses in Opposition to SDG&E's Motion
The parties opposing SDG&E's motion, including DRA, the City, CBC/Sierra Club, Duke, IID, and RAASP, emphasize different concerns but share a common view that the Commission does not have discretion to make a finding of need before completing its review of the environmental aspects of the project, and that it cannot conduct a reasonable need assessment without the project information required by GO 131-D, Rule 17.1, § 1003, and CEQA. Some raise concerns that the issue of need cannot be evaluated until all affected parties receive official notice of the project, which the utility cannot provide until it has determined a specific route. Several observe that although the Commission has considerable flexibility to craft its procedures, it does not have discretion to waive statutory requirements.
Discussion
After review of all filings, we deny SDG&E's motion because it is moot. SDG&E's two recent letters to the Commission and the recently completed MOA with IID demonstrate that the Sunrise Powerlink, as currently proposed in this application, has and will be altered in the future, making initiation of our review at this time unnecessary. In particular, SDG&E has indicated that the evidence it will present with regard to project need will change. It would be imprudent for the Commission to undertake a factual consideration of the application in this proceeding when the applicant has indicated that they expect to significantly alter that filing in four months time.
Consistent with Rule 7(c), parties making written ex-parte communications are required to file formal notices of those communications within three days, in addition to simultaneously serving such communication on the service list. Future letters and electronic communications to decision-makers should be reported consistent with our rules and we herein direct SDG&E to file notices for the letters it has sent to the Commission's decision-makers thus far, consistent with our Rules. In addition, we remind SDG&E that the Commission's processes are formal and that letters to the Commission are not the required form of communication on procedural matters and SDG&E should adhere to these requirements.
Next Steps
For purposes of administrative convenience and to keep the proceeding on track, we will keep this docket open, and permit SDG&E to amend its application with the additional required information, including the PEA. Pursuant to
Rules 44.1 and 2.6, parties will have 30 days to protest the amended application, and, pursuant to Rule 44.6, the applicant has 10 days to reply to any protests or responses. The rights of parties that have already protested the application and choose not to protest the amended application will be preserved. We commit the Commission to reviewing the application expeditiously once SDG&E provides the required information. In order to proceed expeditiously, we direct parties to follow the seven steps listed below:
1. SDG&E shall continue its public outreach process in advance of filing its completed CPCN application and shall give the required legal notice to the affected residents and businesses when the PEA is submitted.4
2. SDG&E shall contact all potentially affected local, state, and federal agencies to commence all necessary discussions concerning the effect of the Sunrise Powerlink on governmental entities, including officials representing Anza-Borrego Desert State Park, if it has not done so already.
3. On June 20, 2006, SDG&E shall formally file a status report on its expected July 2006 filing of the update and completion of its CPCN application. If SDG&E expects any delay, SDG&E shall provide an explanation of the delay and the new expected filing schedule.
4. SDG&E shall work with the Commission's Energy Division staff before filing the PEA to assure that the PEA is complete and adequate by the time of filing.
5. DRA shall commence, if it has not already, the state contracting process to ensure that it has in place a consultant, per Public Utilities Code
§ 631, that will allow DRA to commence a timely review of SDG&E's project proposal once the application is complete.
6. The Commission's Energy Division shall contact the California Independent Systems Operator to coordinate the ISO's review schedule for this project with the schedule set forth herein.
7. We will schedule a second prehearing conference in the San Diego area at 1:00 pm on September 13th, at a place to be determined. This date is dependant upon a timely filing by SDG&E of the update and completion of its CPCN application, and allows 30 days for protests and responses to the amended application and 10 days for applicant responses to any such filings, per our Rules and as discussed previously. At the prehearing conference, we will consider outstanding procedural matters, including the schedule for this proceeding, the need for evidentiary hearings, public participation hearings, and any other matters. Although the Commission recognizes SDG&E's view that there is an urgent need for this project, and intends to process this application without delay, the Commission cannot make any commitments with regard to a schedule in this proceeding until it has received all information relevant to the project from the applicant.
IT IS RULED that
1. The December 14, 2005, motion of San Diego Gas & Electric Company (SDG&E) to Set Procedures and Defer Certain Filing Requirements is denied as moot.
2. The Commission intends to consider project need after SDG&E amends its application to include the Proponent's Environmental Assessment and other information as required by law and the Commission's Rules of Practice and Procedure and General Orders.
3. SDG&E shall make any outstanding formal filings with the Commission with regard to the two written ex-parte communications discussed herein.
4. SDG&E shall continue its public outreach process in advance of filing its completed CPCN application and shall give the required legal notice to the affected residents and businesses when the PEA is submitted.
5. SDG&E shall contact all potentially affected local, state, and federal agencies to commence all necessary discussions concerning the effect of the Sunrise Powerlink on governmental entities, in particular officials representing Anza-Borrego Desert State Park.
6. SDG&E shall formally file a status report on June 20, 2006, on the pending update and completion of its CPCN application with the Commission and serve it on all parties. If SDG&E believes it will be unable to provide the PEA and information required by § 1003,
GO 131-D, and Rule 17.1 by July 2006, SDG&E shall include in that status report an explanation of the reasons for its delay and indicate the new expected filing date.
7. SDG&E shall work with the Commission's Energy Division staff before filing its PEA to assure that the PEA is complete and adequate at the time of filing.
8. DRA shall commence, if it has not already, the state contracting process to ensure that it has in place a consultant, per Public Utilities Code
§ 631, that will allow DRA to commence a timely review of SDG&E's project proposal once the application is complete.
9. The Commission's Energy Division shall contact the California Independent Systems Operator to coordinate the ISO's review schedule for this project with the schedule set forth herein.
10. The Commission hereby schedules a prehearing conference in this proceeding at 1pm on September 13, 2006, at a precise location to be determined and assuming SDG&E will have filed by July 31st its amended application to include all required information.
Dated April 7, 2006, at San Francisco, California.
/s/ DIAN M. GRUENEICH |
/s/ KIM MALCOLM | |
Dian M. Grueneich Assigned Commissioner |
Kim Malcolm Assigned Administrative Law Judge |
CERTIFICATE OF SERVICE
I certify that I have by mail, and by electronic mail, served a true copy of the original attached Ruling of Assigned Commissioner and Assigned Administrative Law Judge Denying the Motion of San Diego Gas & Electric Company for the Commission to Investigate and Rule on Project Need in Advance of Receiving Project Information Required by Statute and Commission Rules to all parties of record in this proceeding or their attorneys of record.
Dated April 7, 2006, at San Francisco, California.
/s/ DAVID NG |
David H. Ng |
NOTICE
Parties should notify the Process Office, Public Utilities Commission, 505 Van Ness Avenue, Room 2000, San Francisco, CA 94102, of any change of address to insure that they continue to receive documents. You must indicate the proceeding number on the service list on which your name appears.
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The Commission's policy is to schedule hearings (meetings, workshops, etc.) in locations that are accessible to people with disabilities. To verify that a particular location is accessible, call: Calendar Clerk (415) 703-1203.
If specialized accommodations for the disabled are needed, e.g., sign language interpreters, those making the arrangements must call the Public Advisor at (415) 703-2074,
TTY 1-866-836-7825 or (415) 703-5282 at least three working days in advance of the event.
APPENDIX A
1 This ruling does not restate the informational requirements of each of these laws and rules because the parties do not at this time dispute the types of information required, only whether SDG&E must or should provide them prior to the Commission's analysis of project need.
2 See Ruling at http://www.cpuc.ca.gov/PUBLISHED/RULINGS/53531.htm, pp. 1-2.
3 Brief of SDG&E in Response to Assigned Commissioner's Ruling, pp. 5-6.
4 General Order 131-D, Section XI.A
