4. Discussion

4.1 CEQA

CAUSE asserts that the change in the location of the undergrounding from the Underground District to the 29th Street and Dale Street route rendered the project ineligible for exemption from the requirements of CEQA, under Guidelines section 15302(d). CAUSE also asserts that the entire enterprise of undergrounding the 30th Street overhead 138 kV transmission line has been improperly divided into phases, and should be considered as one project for CEQA purposes.

SDG&E responds that the project remains eligible for the CEQA exemption, regardless of where it is located and how it is phased. SDG&E relies on Dehne v. County of Santa Clara (1981) 115 Cal.App.3d 827 to argue that the location of the undergrounding a block or more away from the overhead line is still encompassed within the CEQA "same site" exemption.9

We do not have the benefit of any determination by the City, as lead agency, on this issue. SDG&E notified City personnel of its change to the route, but the City did not amend Resolution R-293141 to reflect the change. Nor, apparently, did the City consider whether the CEQA "same site" exemption was still applicable to the re-routed project.

SDG&E's reliance on Dehne is nevertheless misplaced. In that case, a large cement facility was proposing to replace existing buildings with other structures on the same facility site, on the same piece of property, owned by the same owner, as the buildings to be replaced. The court found that the requirements of then-section 15102 of the Guidelines,10 that "the new structure will be located on the same site as the structure replaced," were satisfied when the facility was "reconstructed within the area bounded by the existing plant." 115 Cal.App.3d at 838. We applied this principle in D.00-07-044, which allowed the relocation of a 60 kV line 100 feet away from the original location, on the same farm. Our conclusion that the power line relocation was exempt under Guidelines § 15302 is consistent with that of the Dehne court, which interpreted "same site" to mean the boundaries of the property in which the existing cement facility was located.

By contrast, SDG&E built the Undergrounding Project on streets that did not have any of the overhead line that was being replaced. These streets are also outside the boundaries of the Underground District adopted by the City for the purpose of undergrounding the 30th Street overhead transmission line. The court in Dehne clearly stated that "[t]he exemption category does not permit applicants to move the site." 115 Cal.App.3d at 838. In the Undergrounding Project, SDG&E did "move the site," from the original route of the overhead line and boundaries of the Underground District to a different set of city streets, and thus is not able to benefit from the exemption.11

CAUSE also claims that the undergrounding of the 30th Street overhead line has been improperly phased or segmented. For CEQA purposes, a government agency must consider the "whole of an action,"12 which CAUSE asserts is the underground conversion of the entire overhead line. SDG&E responds that the linear segments of the overhead line can be separately undergrounded, as demonstrated by the work giving rise to the complaint, and thus can be considered separate projects for CEQA purposes. The phasing determination is made, in the first instance, by the City as lead agency.13 Our record in this proceeding is not complete on the issues of phasing, since the City was dismissed as a party and we lack information about its process for setting phases for undergrounding. We therefore cannot conclude that any improper segmentation occurred with respect to the Undergrounding Project.

Our conclusion that the exemption found in Guidelines § 15302(d) does not apply to the Undergrounding Project does not end our inquiry. We must also decide what remedy, if any, to apply. The City is the CEQA lead agency for the Undergrounding Project. Even if we view the City's determination of exemption as erroneous, our remedial actions are limited both by Guidelines § 1505214 and by practical considerations. As we noted in D.04-07-023, where the Commission was the lead agency,

CEQA requires an environmental review to occur before an activity takes place. Here, all of the activities. . . have already occurred. Consequently, conducting a CEQA review at this time would serve no practical purpose. Mimeo., at p. 17.

When we are the responsible agency, as we are for the Undergrounding Project, the reasons not to conduct an after-the-fact CEQA review-even if the requirements of Guidelines § 15052 were met-are all the stronger. We therefore decline to require any further action under CEQA for the Undergrounding Project. We note, however, that any further phases of the 30th Street undergrounding effort must be conducted in accordance with the appropriate CEQA requirements.

4.2 GO 131-D

CAUSE claims that SDG&E failed to comply with both the permit to construct (section IX.B.)15 and public notice (section XI.A)16 provisions of GO 131-D. SDG&E responds that the project, being exempt from CEQA, is not subject to the notice requirements of GO 131-D; even if it were, the project has no adverse environmental impacts. SDG&E relies on § III.B.1.d of GO 131-D, which provides that "[c]ompliance with Section IX.B is not required for. . . the conversion of existing overhead lines to underground."17 If the Undergrounding Project is exempt from the PTC requirement pursuant to § III.B.1, then it is also exempt from the notice requirements of § XI.A and subject only to the notice requirements of § XI.B.

When we adopted the PTC process in D.94-06-014, we noted that "[n]o permit to construct is required for projects that are exempt from CEQA." (55 CPUC 2d 87, 103.) We also made clear that the determination of exemption from the PTC requirement was based on the determination that the project was exempt from CEQA. Since, as explained above, the Undergrounding Project was not properly exempt from CEQA, it was not exempt from the PTC requirements and associated notice requirements of GO 131-D.

As with our analysis of remedies available for the CEQA violation, however, we conclude that no useful purpose would be served by requiring SDG&E to pursue a PTC and give notice under Sec. XI.A several years after the Undergrounding Project was completed. We expect SDG&E to comply with the PTC requirements, when applicable, in future underground conversion work.

4.3 EMF

Finally, CAUSE alleges that SDG&E failed to take appropriate steps to mitigate EMF emissions in the Undergrounding Project.18 SDG&E defends the steps it has taken to mitigate EMFs. It argues that it has met its obligations under D.93-11-013 by following the procedures in its EMF Design Guidelines for Transmission, Distribution, and Substation Facilities (May 23, 1994) (EMF Design Guidelines) and that, both legally and factually, it cannot be required to do more.

Although the parties did not focus on this issue, we first must decide whether we have jurisdiction over the EMF portion of the CAUSE complaint. Our complaint procedure is limited by Pub. Util. Code § 1702 to "any act or thing done or omitted to be done by any public utility. . . , in violation or claimed to be in violation, of any provision of law or of any order or rule of the commission." With respect to EMFs, CAUSE makes two claims. The first is that SDG&E did not adhere to its EMF Design Guidelines. The second is that, regardless of whether SDG&E complied with the EMF Design Guidelines, the level of EMF exposure in the vicinity of the Undergrounding Project is dangerous and should be abated.

In D.93-11-013, we concluded that the scientific information on the effects of EMF exposure was sufficiently uncertain that we would not set any EMF standards, but would require the utilities to implement EMF mitigation measures that are no-cost or low-cost (with a benchmark of four per cent of the project cost) for each project. We also required the utilities to develop, distribute, and implement EMF design guidelines to carry out the EMF policy announced in the decision. SDG&E's EMF Design Guidelines are the result of the process set forth in D.93-11-013.19

CAUSE's claim that SDG&E has failed to adhere to its EMF Design Guidelines is therefore within the scope of our jurisdiction, as it is a claim that SDG&E has failed to comply with D.93-11-013, which established the EMF design guidelines requirement. The claim that EMF exposure in the vicinity of the Undergrounding Project is too high, however, is outside the scope of § 1702. We have established no standards for EMF exposure and none have been established by any other California agency. Therefore, CAUSE cannot show that any particular level of EMF exposure is in violation of "any provision of law or of any order or rule of the commission," as required by § 1702.20

SDG&E demonstrated through the testimony of William V. Torre, the lead design engineer on the Undergrounding Project, that it complied with its EMF Design Guidelines in the design and construction of the Undergrounding Project. Torre explained that the EMF Design Guidelines specify that a "noticeable reduction" of EMF intensity must be achieved in order for "low-cost" expenditures to be made. SDG&E's EMF Guidelines define "noticeable reduction" as being greater than or equal to 15%, after applying no-cost measures. Torre used computer simulation models to calculate that in order to have achieved a 15% reduction of EMF fields beyond the "no-cost" field reductions at the nearest property line, three additional trench depths of 2.25 - 5 feet (about 7.25 - 11 feet to the top of the duct package) would have been necessary. The additional cost of such trenching would have been more than 19% of the totaled budgeted cost for the Undergrounding Project, well beyond the benchmark of 4%.

CAUSE focused its efforts on attempting to demonstrate that the modeling used by SDG&E did not accurately predict post-construction EMF exposure, and that the construction methods used by SDG&E did not result in actual mitigation of EMF exposure at the levels predicted by the modeling. These issues, while potentially important, are outside our jurisdiction over this complaint. We therefore do not address them. On the issue that is within our jurisdiction-SDG&E's compliance with its EMF Design Guidelines-CAUSE did not demonstrate that SDG&E failed to follow the EMF Design Guidelines.

9 SDG&E also cites Better Government v. City of Palos Verdes Estates, 2002 Cal.App.Unpub. LEXIS 9349. Although we are not bound by the California Rules of Court, with Rule 977 prohibiting reliance on unpublished cases, we decline to consider this case.

10 Now section 15302.

11 We note also that Guidelines § 15302 (d) addresses "[c]onversion of overhead electric utility distribution system facilities to underground including connection to existing overhead electric utility distribution lines. . ." (emphasis added). Section I of GO 131-D defines a distribution line as a line intended to operate at 50 kV or less. It thus appears that the range of projects exempted by Guidelines § 15302(d) is narrower than the range of projects covered by GO 131-D.

12 Guidelines section 15378(a).

13 The lead agency concept is explained and rules for determining lead and responsible agencies are set out in Guidelines §§ 15050-15052.

14 Guidelines section 15052 provides:

   (a) Where a responsible agency is called on to grant an approval for a project subject to CEQA for which another public agency was the appropriate lead agency, the responsible agency shall assume the role of the lead agency when any of the following conditions occur:

(1) The lead agency did not prepare any environmental documents for the project, and the statute of limitations has expired for a challenge to the action of the appropriate lead agency.

(2) The lead agency prepared environmental documents for the project, but the following conditions occur:

(3) The lead agency prepared inadequate environmental documents without consulting with the responsible agency as required by Sections 15072 or 15082, and the statute of limitations has expired for a challenge to the action of the appropriate lead agency.
(b) When a responsible agency assumes the duties of a lead agency under this section, the time limits applicable to a lead agency shall apply to the actions of the agency assuming the lead agency duties.

15 Section IX.B., titled "Power Line Facilities Between 50 kV and 200 kV and Substations Designed to Operate Over 50 kV Which Are Not Included in Subsection A of this Section," provides in relevant part:

16 Section XI.A, applicable to applications for a certificate of public convenience and necessity and to projects requiring a PTC, contains more extensive and more individualized notice requirements than Sec. XI.B.

17 A second possible exemption, "the minor relocation of existing power line facilities up to 2,000 feet in length. . .," found in Sec. IX.B.1.c, is inapplicable to the Undergrounding Project, which is more than a mile in length.

18 CAUSE also alleged that SDG&E failed to use appropriate shielding for the underground cable as required by GO 128, but abandoned that claim at the PHC.

19 In R.04-08-020, we are considering possible improvements to our existing EMF policy and its implementation.

20 This conclusion also leads us to deny the request made by CAUSE to take official notice under Rule 73 of our Rules of Practice and Procedure of the California Department of Health Services report, "An Evaluation of the Possible Risks from Electric and Magnetic Fields (EMFs) from Power Lines, Internal Wiring, Electrical Occupations, and Appliances" (June 2002). We also will not consider CAUSE's request that we decide whether or how our decision in D.04-08-046 on EMF mitigation measures in Pacific Gas and Electric Company's Jefferson-Martin project should be applied to the construction of the Undergrounding Project.

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