8. Scope of Proceeding
In Resolution ALJ 176-3022, dated September 2, 1999, the Commission categorized this application as ratesetting. In D.00-01-022, dated January 6, 2000, we determined that hearings were necessary in Phase II of this proceeding. By Scoping Memo dated March 9, 2000, Phase II of this proceeding was recategorized as adjudicatory. The scope of this proceeding was set forth in the Scoping Memo of March 9, 2000. Our order today confirms these determinations and confirms that Administrative Law Judge (ALJ) Walker is the presiding officer.
1. PFL on June 17, 1998, filed for a certificate of public convenience and necessity to operate in California as an NDIEC.
2. PFL planned construction of a fiber optic project between Portland and Sacramento.
3. PFL filed under a simplified registration process that in 1998 was used for carriers filing only as NDIECs.
4. PFL informed the Commission of its plans for installation of a fiber optic system at the time of its registration.
5. PFL was told by Commission staff to use the registration process to register as an NDIEC.
6. The great majority of NDIEC applicants intend to use the facilities of other carriers and are not themselves facilities-based.
7. In its registration, PFL identified itself as a facilities-based NDIEC.
8. Operating authority was granted to PFL in D.98-07-057 on July 20, 1998.
9. PFL did not as part of the registration process seek Commission review for compliance with the Commission's CEQA rules.
10. PFL was advised by Commission staff that the Commission had no procedure in place at that time for CEQA review of NDIEC applications.
11. In October 1998, PFL retained the services of Foster Wheeler Environmental Corporation to establish environmental rules for the planned construction.
12. PFL reviewed its environmental plans and its construction plans with the Commission's CEQA staff.
13. On December 2, 1998, PFL began trenching and installing its fiber optic cable in Yolo County.
14. During construction, PFL called and met with Commission staff on numerous occasions to seek CEQA review by the Commission.
15. The Commission's CEQA staff told PFL to continue the environmental safeguards that PFL had put in place for construction.
16. In April 1999, PFL was told to prepare a Proponent's Environmental Assessment as the first step in formal CEQA review by the Commission.
17. In May 1999, the Commission retained Entrix to conduct an initial study of the PFL project under CEQA guidelines.
18. On June 17, 1999, a project review meeting was conducted at the Commission, and PFL was advised to file a petition to modify its earlier operating authority.
19. On June 25, 1999, the California Department of Fish and Game urged the Commission to issue a stop-work order on the PFL project until CEQA review was complete.
20. A stop-work order was issued by the Commission's Executive Director on July 6, 1999.
21. On August 11, 1999, PFL applied for modification of its operating authority to include compliance with CEQA.
22. The Commission's CEQA staff issued a Final Mitigated Negative Declaration and Initial Study for the PFL project on November 24, 1999.
23. The Commission in D.00-01-022, issued on January 6, 2000, granted modification of applicant's operating authority and lifted the stop-work order.
24. The Commission kept this proceeding open to investigate whether sanctions should be assessed against PFL for starting construction prior to CEQA review.
25. CSD conducted an investigation and recommended that sanctions should be imposed.
26. Five days of hearings were conducted January 8-12, 2001, and final briefs were filed on March 26, 2001.
1. The evidence does not support a finding that PFL violated Rule 1, Rule 18 or D.97-06-107 in using the registration process instead of an application for its initial filing.
2. PFL began construction of its fiber optic conduit project at a time when it knew or should have known that Commission approval under CEQA was required and had not yet been obtained.
3. PFL violated Rule 17.1 and Pub. Util. Code § 702 in starting construction of its project prior to receiving approval from the Commission under CEQA.
4. Uncorrected environmental damage from the construction has not been shown.
5. Factors in mitigation include PFL's cooperation with Commission staff, its efforts to comply with the substantive requirements of CEQA, and the Commission's own uncertainty in 1998 in dealing with CEQA requirements for an NDIEC applicant.
6. Based on the record as a whole, assessment of sanctions against PFL for the violations noted in Conclusion of Law 3 is not warranted.
7. The scope of this proceeding is set forth in the Scoping Memo dated March 9, 2000; ALJ Walker is the designated as the presiding officer.
IT IS ORDERED that:
1. The recommendation of Consumer Services Division that sanctions be imposed on Pacific Fiber Link, L.L.C. is denied.
2. Application 99-08-021 is closed.
This order is effective today.
Dated , at San Francisco, California.
