(March 17) Noting that Ontario officials had been aware of the Tehachapi Renewable Transmission Project and its local impacts since 2007 but waited nearly seven years to file a petition to have the project’s power lines buried, administrative law judge Jean Vieth denied the city of Ontario’s request that Southern California Edison’s erection of 197-foot high power towers at the extreme south end of the city be halted.
Essentially, Ontario is seeking to replicate the rather improbable success the city of Chino Hills had in persuading the California Public Utilities Commission to force Southern California Edison to underground the 500 kilovolt electrical lines that are part of its Tehachapi Renewable Transmission Project traversing that city. Last fall, Ontario officials filed with the commission a petition and an amended petition to modify the massive utility corridor through the portion of the city annexed from the former Chino Agricultural Preserve, where the city intends to complete the so-called New Colony retail and residential subdivisions. The New Colony project will entail the addition of roughly 12,000 residents once it is completed.
The 173-mile Tehachapi line is intended to connect what is planned as the world’s largest windfarm, consisting of hundreds of electricity-producing windmills in Kern County, with the Los Angeles metropolitan basin.
The Public Utilities Commission in 2009 over the city of Chino Hills’ protest granted Southern California Edison clearance to erect high-tension power transmission towers through the 44.7-square mile city at the extreme southwest corner of San Bernardino County along a long-existing power corridor easement owned by the utility.
In 2011, after Southern California Edison (SCE) had already expended millions of dollars in erecting 18 of the 197-foot high transmission towers within the Chino Hills city limits, the California Public Utilities Commission issued an order to SCE to halt work on the project while the commission’s staff looked into the possibility of bringing the towers down and instead having Edison bury the transmission lines beneath the power corridor running through Chino Hills.
In July 2013, the California Public Utilities Commission voted 3-2 in favor of requiring Southern California Edison to underground high-voltage power lines for the 3.5 miles of the five miles they run through Chino Hills.
Well over a year after commissioners Michael Peevey, Mark Ferron and Catherine Sandoval effectively undid a four-year standing vote of the Public Utilities Commission that gave Edison go-ahead to string 500 kilovolt cables from the towers running through the heart of upscale Chino Hills, Ontario on October 31, 2014 filed a petition for modification of the Tehachapi line design in its jurisdiction with the public utility commission.
But in prelude to the California Public Utilities Commission initiating hearings as early as April 9 on Ontario’s request, Vieth, who routinely considers matters brought before the utilities commission prior to that panel making its decisions, on March 6 refused to accede to Ontario’s request that Southern California Edison be enjoined from proceeding with the project as previously approved.
Vieth dismissed outright Ontario’s contention that it had not been adequately informed of the towers’ potential impact on the city. Beginning in 2007 and running through 2013, Vieth said, the city of Ontario had communicated in writing with the California Public Utilities Commission five times, and never raised objections to the towers or requested that the line be undergrounded. Those letters were signed by individuals with both administrative and land use authority and responsibility, Vieth pointed out, in four of the cases the city manager and in the fifth case the city’s planning director.
Moreover, Ontario neglected entirely to indicate how many miles of the line it wanted to see vaulted below ground.
According to Joshua Nelson and John Brown of the law firm Best Best & Krieger, who represent the city of Ontario, “The actual impacts of the line are greater than anticipated [and] the impacts to the city of Ontario are the same or worse than those in Chino Hills,” such that “fundamental fairness and equal protection requires treating the city of Ontario and Chino Hills the same.”
Southern California Edison, through its attorneys, Beth Gaylor, Angela Whatley and Laura Zagar of the San Diego-based law firm of Perkin Coie, responded, saying Ontario’s delay in making its protest to the above-ground design of the utility corridor through its territory, seven years after Edison previewed the design and more than five years after the public utilities commission held hearings on the proposal, is requesting too much too late.
“In July 2009, the commission held ten days of evidentiary hearings with over 25 witnesses, which involved numerous parties, extensive witness testimony, hundreds of pages of briefing, and oral argument,” Gaylor, Whatley and Zagar wrote in their December 5, 2014 response. “Ontario did not participate in these proceedings. Ontario’s petition for modification is procedurally defective and attempts to relitigate issues already decided by the commission. There are no new facts or evidence warranting the extraordinary relief Ontario requests.”
Furthermore, according to Gaylor, Whatley and Zagar, the commission’s rule pertaining to protests of commission decisions and rehearings “requires a petitioner to file a petition for modification within one year of the effective date of the decision it seeks to modify. Ontario does not provide a compelling reason for its failure to participate in the commission’s initial review of the Tehachapi Renewable Transmission Project or the commission’s reevaluation of Chino Hill’s petition for undergrounding. A party that has not engaged in the proceedings should not be able to derail this crucial project at such a late stage in development.”
According to Nelson and Brown, however, “the city of Ontario’s delay was justified as the facts supporting its petition for modification were unknown. The actual effects of the line were not known until they [i.e., the towers] began to be constructed. Construction began within the city of Ontario after April this year [i.e., 2014]. Once these facts were known, the city promptly filed its undergrounding petition. Moreover, the city was not aware that similar communities would be treated differently until [the commission’s July 2013 decision] provided an undergrounding exemption for Chino Hills.” Nelson and Brown assert that “while the city of Ontario did not participate in [the 2009 decision to approve the Tehachapi line] as a formal party, it submitted numerous California Environmental Quality Act comment letters throughout the process. The adverse impacts of this line, which only became clear after its partial construction, occur within the city of Ontario. In addition, the city previously limited its participation in this proceeding for economic reasons.”
Nelson and Brown continued, “Chino Hills spent $1.8 million during the initial proceeding with another $2 million on the petition. While the city of Ontario appreciates that jurisdiction’s decision to participate fully in the proceeding and the result it obtained, $3.8 million is a significant sum of money that the city of Ontario simply could not spend at that time. However, now that the true impacts of the lines are apparent and an effort to ensure equal treatment for its residents, the city will spend the public resources necessary to achieve a similar result. Undergrounding [the transmission line] through Chino Hills without undergrounding portions through the city of Ontario is fundamentally unfair and raises concerns that similarly situated communities have been treated fundamentally differently by the commission. There is simply no reasonable rationale basis for requiring Southern California Edison’s ratepayers (i.e., the community at large) to share the cost of undergrounding through the city of Chino Hills while requiring the city of Ontario’s residents to solely bear the impacts of the aboveground portions of [the transition line].”
According to Nelson and Brown, the positive outcome Chino Hills obtained in its petition to the California Public Utilities Commission must be replicated in Ontario.
The towers are located south of Archibald Ranch and continue toward Chino Avenue, then head east before going into the Mira Loma Electrical Station. Archibald Ranch lies within an area east of Archibald Avenue and south of Riverside Drive. The power lines lie at the southernmost boundary of Archibald Ranch. There are 36 homes lying along the pathway of the power lines.
In her finding, Vieth asserted that a public utility commission order to underground the lines would significantly delay the Tehachapi Renewable Transmission Project, meaning the timetable for its completion would be set back by as much as five years. Vieth said redoing the already approved plans would entail tearing down, reconstructing or redesigning roughly ten miles of the Tehachapi Renewable Transmission Project line.