7. 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. Wild Goose filed timely comments on November 22, 2010, and reply comments on November 27, 2010. WGC timely served its comments but tendered them for filing late (after 5:00 p.m.); no harm appearing, the assigned ALJ directed that the comments be filed. Late on November 23, 2010, WGC served "revised" comments. By email ruling the same day, the assigned ALJ directed WGC to file, no later than 1 p.m. on November 24, 2010, a motion explaining why the revised (i.e. amended) comments should be filed and attaching a "redlined" version to show the difference between its initial and revised comments. WGC complied, explaining that its initial comments contained several inadvertent errors and contending that its prompt effort to correct those errors should not be deemed prejudicial. By email ruling on November 24, 2010, the assigned ALJ directed that the amended comments be filed.
Wild Goose supports the proposed decision. Its comments identify two typographical errors and we have corrected both, along with several others we detected. WGC focuses on the noise level analysis in the Final SEIR, contends that analysis is erroneous, and urges us to make changes. Wild Goose challenges the WGC comments on procedural and substantive grounds.
As already noted in Section 5.4.5 above, the Final SEIR requires Wild Goose to monitor noise levels at full build out (or when fewer than 20 wells are operating) and to undertake appropriate mitigation measures to prevent noise levels from exceeding 55 dBA Lmax at a distance of 100 yards from the well pad site berm.
Procedurally, Wild Goose is correct that the WGC amended comments include new, extra-record information in the form of an October 27, 2010 study on noise levels by WGC's consultant, Brown Buntin Associates (BBA). Rule 14.3(c) of the Commission's Rules requires that comments "focus on factual, legal or technical errors . . . and in citing such errors . . . make specific reference to the record or applicable law . . . or be accorded no weight." WGC's amended comments purport to provide additional support for a more stringent significance threshold of 48 dBA to protect waterfowl, based on the BBA study. Further, WGC's amended comments attempt a procedural end run around the requirement to submit timely comments on the substance of the Draft SEIR. If WGC had desired to submit the analysis of an acoustic engineering consultant for use in preparation of the Final SEIR, WGC could have done so -- that opportunity was provided during the comment period on the Draft SEIR. WGC did not play by those rules, though it was fully aware of them at the time - or should have been.
Substantively (were we to excuse the significant procedural defects), nothing in WGC's November 24 motion, amended comments, or in the BBA report provide substantial evidence to support WGC's contention that 48 dBA should be the appropriate significance threshold in this case, and we accordingly decline to adopt WGC's recommendation.
However, independently of WGC's November 24 motion and amended comments, and based on updated information provided by our environmental consultant, Ecology and Environment, we have determined that in the interests of clarity, it would be prudent to revise Measure NOI-2 in the Mitigation, Monitoring and Reporting Program to provide more detailed guidance on the specific noise monitoring activities that Wild Goose will be required to carry out during the first year after full build-out of the Phase 3 expansion. Revised Measure NOI-2 is shown in Appendix A-1 to today's decision, entitled Revisions to the Final SEIR, which includes the revised Mitigation, Monitoring and Reporting Program and all supporting discussion of revised Measure NOI-2 in the SEIR (i.e., pages 2-1 through 2-23, 5-1 through 5-21, and Appendix A,
page A.8-13).
The ALJ's proposed decision first appeared on the agenda for the Commission's December 2, 2010 public meeting. We held the matter for further review and subsequently, on December 7, 2010, WGC filed a motion for leave to file (late) a reply to Wild Goose's timely comments on the proposed decision. The lengthy reply comments that WGC proposes to file include several attachments that concern the pending complaint in the superior court of Butte County, a matter that is beyond our jurisdiction. Rule 14.3 does not contemplate extended rounds of reply comments and we deny WGC's motion. We several times already have liberally construed our rules to ensure WGC's participation; WGC has had a lawful opportunity to weigh in on the SEIR.
