5. Comments on Draft Decision
The draft decision of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on ____________________, and reply comments were filed on ________________.
1. PPS owns two crude oil pipelines in California. The first pipeline, the Pacific System, extends 120 miles from Kern County in Southern California to the Los Angeles basin. This Commission approved the Pacific System tariff and the certification of EIS/SEIR on April 10, 1996.
2. In addition to carrying oil, the Pacific System pipeline contains fiber optic cable that is used for communications purposes. PPS seeks to grant access to this fiber to third parties, including Qwest, for use in the construction of fiber optic telecommunications networks in California.
3. PPS' application was not complete until April 28, 2000, when its counsel submitted an executed copy of the USFS Project Stipulations.
4. PPS did not disclose in its initial application that the proposed project would require the installation of 60 additional pullboxes; it made this disclosure on February 7, 2000 in response to an ALJ ruling.
5. PPS did not reveal that Qwest would be the primary user of the new fiber optic lines until March 7, 2000 when it furnished a copy of a report it had provided to the USFS in September 1999 describing the project. That report revealed that the Pacific Pipeline fiber optic cable ultimately would form part of Qwest's 18,815-mile, 150-city nationwide network platform.
6. The Commission's Energy Division had issued a "stop work" order to Qwest prohibiting it from further work in California on its fiber optic network because of alleged CEQA violations. The Commission initiated an investigation into these alleged violations on March 2, 2000.
7. PPS did not disclose that any of the work would occur on private land adjacent to the Angeles National Forest until March 7, 2000.
8. The USFS issued PPS a permit to perform the proposed activity on April 7, 2000. It conditioned the permit on a series of Project Stipulations focused on mitigating the environmental impact of the proposed work.
9. PPS, through its counsel, disclosed to the assigned ALJ for the first time in July 2000 that all of the construction discussed herein had been completed without Commission review.
10. This Commission conducted environmental review of the Pacific System pipeline in 1996.
1. The work applicant proposes is a "project" not exempt from CEQA review.
2. Even if a project will occur entirely on federal land, it is not exempt from CEQA review. This Commission's jurisdiction over such projects stems from its regulatory authority over the applicant, not the land.
3. Under the unique circumstances present here, we need not conduct a duplicative environmental review of the project.
4. PPS should have sought environmental review by this Commission of the project.
5. The USFS Project Stipulations in Appendix A adequately protect the environment, and should be incorporated herein as conditions. We rely on the USFS conditions under the special circumstances presented in this case, and our decision here shall not be precedential in subsequent cases.
6. The conditions in the Qwest Fiber Optic Project Cultural Resources Protocols (Appendix B) bind Qwest and its agents, and should be binding on the work approved here to the extent it is performed for Qwest's fiber optic network.
7. PPS should be authorized pursuant to Pub. Util. Code § 851 to grant third-party access to fiber optic cable located in PPS' crude oil pipelines. All such access shall be subject to the conditions we impose in this decision.
8. We affirm the assigned ALJ's January 26, 2000 ruling granting PPS' Motion for Limited Protective Order seeking confidential treatment of the Indivisible Right to Use Agreement, as amended, between PPS and PPS Holding and attached as Exhibit G to the Application.
9. We will direct the assigned ALJ to issue a ruling commencing a second phase of this proceeding designed to determine whether PPS should be sanctioned for completing the construction referred to herein without prior Commission approval.
IT IS ORDERED that:
1. Pacific Pipeline System LLC (PPS) is authorized pursuant to Pub. Util. Code § 851 to grant third-party access to fiber optic cable located in PPS' crude oil pipelines to the extent set forth in the Application, and to perform construction activities necessary to that access, subject to the conditions set forth herein.
2. PPS and all third parties installing fiber optic cable in PPS' pipelines shall be bound by the conditions set forth in the United States Forest Service Project Stipulations contained in Appendix A hereto. This decision shall not be precedential.
3. The conditions in the Qwest Fiber Optic Project Cultural Resources Protocols (Appendix B) bind Qwest Communications International, Inc. (Qwest) and its agents and affiliates, and shall be binding on the work approved here to the extent it is performed for Qwest's fiber optic network.
4. The ruling of the assigned Administrative Law Judge (ALJ) granting PPS' motion for protective order is affirmed.
5. PPS shall notify the Director of the Energy Division, in writing, of any substantial amendments to, extension of, or terminations of the agreements attached as Exhibits A-G to the Application within 30 days following the execution of such amendments, extensions or terminations.
6. This proceeding shall remain open so that a second phase may commence. That phase, which the assigned ALJ shall initiate by ruling, will examine whether PPS should suffer a penalty or other sanction for commencing construction on the fiber optic project without Commission approval.
This order is effective today.
Dated , at San Francisco, California.
(See Formal Files for Appendixes.)
