HomeMy WebLinkAboutD_HEX_Reconsideration_Decision_2003241
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BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
RE: Puget Sound Energize Eastside
Conditional Use Permit
LUA18-000055, CU-H, SME
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DECISION UPON RECONSIDERATION
SUMMARY
The Final Decision dated February 6, 2020 approving the Energize Eastside conditional use
permit has been subject to three requests for reconsideration. Overall, other than correction of a few
scrivener level errors, the requests have not resulted in any substantial changes to the Final Decision.
The most significant changes are to the conditions of approval. The conditions of approval from the
EIS consistency report requiring coordination between Olympic Pipeline and PSE have been enhanced
by mandating the filing of a mitigation report that verifies that PSE has notified Olympic of all actions
it must take to mitigate against the impacts of the proposal. The mitigation report must also document
whether such action has or will be done. Condition No. 10, requiring art wraps, has not been modified
as requested by the City of Renton except as agreed upon by PSE because aesthetically based conditions
are often dependent upon the acquiescence of the developer to be legally enforceable. Given the FEIS
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conclusions that the proposal will not create any significant aesthetic impacts, acquiescence is
particularly important for this project. Condition No. 11, requiring the two transmission lines to operate
at 230kv, has been modified to allow the transmission lines to run at any equivalent voltage. The
condition has an exception for emergencies. In response to CENSE concerns about accountability on
the emergency exception, any uses of the emergency exception will have to be reported to the City of
Renton in an annual report.
PSE raised various concerns with the relevancy and/or authority of the examiner to address
specified issues. All of the analysis identified by PSE was found to be relevant and necessary. PSE
also requested clarification on whether its geotechnical report was admitted into the record. For the
reasons discussed in detail below, it is unclear whether the geotechnical report should be considered
admitted. The outcome of the Final Decision was not dependent upon admission of the geotechnical
report. For this reason, the sole reference to the geotechnical report has been stricken from the Final
Decision.
CENSE’s request for reconsideration largely repeated the arguments it made during the hearing
in chief. It asserts that project need is relevant to the permit review and that the examiner had the
authority to require an SEIS. Although not expressly stated by CENSE, it apparently was advocating
the use of SEPA authority as opposed to conditional use permitting criteria to address project need.
This Decision Upon Reconsideration determines that project need cannot be addressed as a SEPA issue
since need impacts are limited to utility rates (all other impacts are separately addressed), and impacts
would likely be considered economic as opposed to environmental and thus outside the scope of
environmental review. Further, even if rate impacts were a valid environmental issue, the rate authority
of the UTC is still found adequate to mitigate this impact.
BACKGROUND
A Final Decision for the above-captioned matter was issued with a signature date of February 6,
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2020. The final decision was subject to three requests for reconsideration, as follows:
1. City of Renton Request for Limited Reconsideration dated February 14, 2020.
2. Puget Sound Energy, Inc.’s Request For Correction [RMC 4-8-100.H.7] And Response To
Renton’s Request For Limited Reconsideration dated February 27, 2020
3. Motion for Reconsideration by CENSE dated February 28, 2020.
The above motions were subject to the following responses:
1. PSE February 27, 2020 correction/response identified above.
2. City of Bellevue’s Response to Motion for Reconsideration by CENSE dated March 6,
2020.
3. Response of CENSE to PSE Motion for Clarification Or Reconsideration dated March 9,
2020.
4. Puget Sound Energy, Inc.’s Response to CENSE’s Motion for Reconsideration dated March
9, 2020.
In reply to the PSE and Bellevue responses identified above, the following replies were filed:
1. Cense Reply To Responses Of PSE And Bellevue To Cense Motion For Reconsideration
dated March 16, 2020.
2. Puget Sound Energy, Inc’s Reply On Motion For Reconsideration dated March 16, 2020.
No other documents other than previously admitted exhibits were reviewed for these
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reconsideration requests. Reconsideration review was conducted without oral argument.
ANALYSIS
The three requests for reconsideration will each be separately addressed below:
A. Renton Request for Reconsideration
Renton’s reconsideration request focused on enhancements to Condition No. 10 and identified
an error in the Final Decision in the name of a Bellevue official. The name will be corrected. Condition
No. 10 will remain as is except for an expansion of the security requirements.
As noted in the City’s reconsideration request, Page 31 of the Final Decision references
testimony from “Carol Hellend from the Development Services Department of the City of Bellevue.”
The audio recording of the hearing reflects that it was instead Liz Stead, Land Use Director for the City
of Bellevue. The final decision will be corrected accordingly.
Condition No. 10 requires PSE to install art wraps upon transmission line poles to reduce
aesthetic impacts. Condition No. 10 was a staff recommended condition that was revised pursuant to
the Ex. 22 PSE prehearing brief, which asserted that “PSE previewed this language with the City’s
planning staff and understands that they have no objections to the slight modifications.” Staff did not
object to the proposed revisions at hearing and the revisions were found acceptable and so adopted into
the Final Decision. Condition No. 10 is quoted as follows:
Individual art wraps for the transmission line poles shall be submitted to the Current
Planning Project Manager for review and approval prior to the issuance of a Construction
Permit. PSE will install art wraps at up to 12 transmission line pole locations (including
those previously discussed and identified by the City at the Renton Technical College and
on publicly visible PSE-owned property). Artwork shall be installed prior to the energizing
of the transmission line, or as otherwise approved by the Current Planning Project
Manager, but at no point will art installation delay the transmission lines from being
energized. The Current Planning Manager may require a cash security bond for
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completion of the artwork if it is not installed prior to energizing.
In their reconsideration request, staff requested several revisions to Condition No. 10. First, it
requested that the number of art wraps required be increased from “up to 12” poles to “up to 15” poles.
PSE did not object to this increase in its reply. Condition No. 10 will be modified to require “up to 15”
poles.
Second, staff requested that language referencing a prior discussion at Renton Technical
College be deleted as overly vague. Specifically, the language subject to deletion provides as follows:
“(including those previously discussed and identified by the City at the Renton Technical College and
on publicly visible PSE-owned property).” PSE did not object to this removal in its reply. Condition
No. 10 will be modified to remove the language referencing a Renton Technical College discussion.
Third, staff requested deletion of the language that provides that “but at no point will art
installation delay the transmission lines from being energized.” PSE contests this request, asserting
that the timely completion of the project is too important to be delayed for art wraps. The City’s request
to delete the language is denied. As previously argued by PSE, the FEIS concluded that the proposal
would not create any significant adverse aesthetic impacts without including a consideration o f
mitigation by art wraps. The findings of the FEIS, coupled with the subjective nature of mitigation
based upon aesthetics alone, puts the City in a very legally tenuous position in justifying delay of the
project for art wraps. Further, the authority for the planning manager to require bonding provides the
City with reasonable assurance that the art wraps will in fact be installed as required, without the need
for additional leverage by empowering the City to delay the project. To further strengthen the
enforcement position of the City, the bonding in Condition 10 will be required to cover the costs of
enforcement.
B. PSE Request for Reconsideration.
Overall, PSE had seven items it wished revised or clarified in the Final Decision. There was
no need found for any major revision or deletion resulting from these requests. Most significant for
PSE, Condition No. 11 will be revised from requiring that the two transmission lines operate at 230kv
to simply the same voltages. A Final Decision statement that PSE’s geotechnical report was not
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admitted into the record will be stricken since (1) the record is unclear whether the report was admitted,
and (2) the reference to the geotechnical report is not necessary to support the Final Decision conclusion
that the project will not adversely affect pipeline safety due to earthquake. An erroneous Final
Decision statement that the Richards Creek substation will be located in Renton will be corrected to
state the substation will be located in Bellevue.
Beyond the changes identified above, the remaining reconsideration requests made by PSE will
not be granted. In its reconsideration request, PSE claimed that the EDM risk analysis was not pertinent
to the proposal because it assessed the risks of a different transmission corridor route than that finally
proposed. This contention is rejected because the change in route, for a small segment more than 1.5
miles north of the Renton segment, has no material bearing upon the Final Decision conclusion that the
EDM establishes a negligible risk of injury or death in the Renton segment. Similarly, PSE claims that
the EDM analysis was not pertinent because it was based upon an operational parameter of a
115kv/230kv line, whereas PSE proposal is to operate at 230kv/230kv. As discussed below, this was
factored into the Final Decision’s use of the EDM analysis.
PSE wanted clarification on a Final Decision statement that no response was made to comments
submitted into the Renton hearing regarding pipeline safety. The Final Decision simply stated that no
responses were made to these comments by PSE or the City. Many of the issues raised in the comments
duplicated concerns raised and responded to during environmental review, but some concerns were
new and had not been previously addressed.
PSE also contested the relevancy of Olympic Pipeline’s leak detection system. As discussed
below, the PSE leak detection system is pertinent to the accuracy of the EDM risk analysis and for that
reason is pertinent to the review of the PSE proposal.
PSE contested the City’s request to modify Condition No. 10, the condition requiring art wraps.
For the reasons identified above in the City’s request to modify that condition, the condition will only
be revised to the extent agreed upon by PSE.
Each request by PSE is addressed in more detail below in the order presented in PSE’s
reconsideration request:
1. EDM Analysis Relevant. PSE claims that the Final Decision should not have
included an assessment of the EDM risk analysis because that analysis evaluated the pipeline safety of
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a transmission corridor route that differs from that ultimately proposed by PSE. The EDM analysis
was in part based upon an AC interference study that modelled impacts to what the SEPA documents
called the “Willow 2” route, which was a route that partially diverted from the existing transmission
corridor in south Bellevue. Instead, the current proposal utilizes the “Willow 1” route, which doesn’t
divert from the PSE existing transmission corridor through south Bellevue. In its reconsideration
briefing, PSE noted that the EDM report doesn’t apply to the Renton segment because “[a]s was
presented at hearing and stated in the HE Decision, this is not the route or operational parameters
that PSE proposed to construct in Renton in its permit application to Renton.” PSE’s reference to
“operational parameters” alludes to the fact that the AC interference modelling was based upon a
115kv/230kv transmission line configuration as opposed to a 230kv/230kv configuration.
Neither of PSE’s concerns, both in terms of route and operational parameters, has merit.
Neither Willow 1 nor Willow 2 are located in the Renton segment. The fact that the modelled route
was slightly different in the south Bellevue segment of the corridor does not undermine the ultimate
conclusion in the Final Decision that the risk of death or injury caused by the co-location is negligible.
At the outset it must be understood that the EDM risk analysis was done for the transmission corridor
as a whole, from the Sammamish substation down to the Talbot substation. The Renton segment is
only a small part of the entire transmission corridor, so the risk for the entire transmission segment as
computed in the EDM segment will be more, probably substantially more, than the small portion of
risk attributable to the relatively small length of collation in the Renton segment. As depicted in Table
4.9-1 of the Final EIS, the entire proposed transmission line through all affected cities is collocated for
a total of 12 miles along the Olympic Pipeline. In the City of Renton, the corridor only has 0.4 miles
of colocation.
The Willow 1 and Willow 2 routes are separated from the Renton segment by the Newcastle
segment, which has a transmission corridor length of 1.5 miles. The Willow routes are not in Renton
as suggested in PSE’s motion quoted in the preceding paragraph. To the extent that the change in the
modelled Bellevue route would have an impact on the Renton segment, that change would likely reduce
the amount of AC interference and hence risk of death or injury in the Renton segment. As shown in
Table 3.9-5 of the Phase 2 EIS, the Willow 1 option results in 0.9 miles less of colocation than the
Willow 2 option. As testified by Mr. Kemp at hearing, AC interference increases along with increases
in length of colocation, at least up to a point. Consequently, if the change in route from Willow 2 to
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Willow 1 more than 1.5 miles away would have any effect on the AC interference in the Renton
segment, it would be to lower it. It is conceivable that site constraints in Willow 1 route would prevent
a pole configuration that is less optimal for purposes of AC interference than that possible in the Willow
2 route, but given the amount of space available in the transmission corridor to configure poles and the
fact that DNV was able to find a configuration within the rest of the corridor that eliminated AC
interference, that appears very unlikely.
As to the fact that the EDM report used 115kv/230kv operational parameters and PSE has
committed to 230kv/230k, that was factored into the Final Decision’s analysis as follows:
PSE had originally proposed to operate its two transmission lines at 115kv for one line and
230kv for the other line for the initial stages of operation but agreed to operate both lines at
230kv to avoid the corrosion and voltage risks identified in the DNV study. In the absence of
any increase in corrosion risk under 230kv/230kv conditions, employing the methodology of
the EDM study, there would be no increase in pipeline release incidents by the proposed co -
location of the transmission lines since there would be no addition to risk caused by AC
interference. In fact, the risks under the EDM analysis would be lower for the proposal since
the currently existing transmission line creates AC interference whereas the proposed
transmission lines will not. From this information it must be concluded that according to the
methodology of the EDM risk assessment, operating the lines at 230kv/230kv will not increase
risk of pipeline release.
In short, the issues that PSE had with use of the EDM report are already factored i nto the
analysis of the Final Decision. It was implicit in the Final Decision that the risk in the Renton segment
was less than the EDM risk analysis for the entire transmission corridor. The change in route from
Willow 2 to Willow 1 only made the risk even less in the Renton segment. As to the change in operating
parameters from 115kv/230kv to 230kv/230kv, the Final Decision used the methodology1 of the EDM
1 The “methodology” of the EDM report as regards impacts of co -location was not that complicated. The methodology
was limited to the informed professional judgment that the primary source of risk from colocation of pipelines with
electrical transmission corridors was (1) External Corrosion; (2) Fault Damage; and (3) Arc Damage. See Section
3.9.5.1 of the Phase 2 EIS. As outlined at page 3.9‐39 of the Phase 2 EIS, Fault and arc damage were effectively
nullified and/or reduced by PSE’s proposed use of sh ield wires. The only remaining issue was external corrosion,
which was nullified by the DMV configuration of the transmission poles and change in operational parameters from
a 115kv/230kv line to a 230kv/230kv line. Ultimately, it wasn’t necessary to ref erence the EDM study to reach this
conclusion, as the salient point was that external corrosion and fault and arc damage were the primary sources of risk
from co-location and all three of these risk factors were nullified by the shield wire, DMV configuration of
transmission poles and change in operational parameters. Perhaps that is what PSE meant to point out in its request
for reconsideration. However, the EDM analysis was heavily referenced in all three EISs prepared for the project and
was heavily criticized by project opponents. For this reason, the EDM served as an appropriate analytical foundation
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report to conclude that colocation would likely result in no change in risk from current conditions.
Given these factors, the Final Decision accurately assessed the relevance and significance of the EDM
study to the risk analysis of the PSE proposal and there is no reason to change that analysis upon
reconsideration.
2. Record Lacking PSE Response to Pipeline Safety Comments. PSE’s next
concern in its request for reconsideration was clarification of the following comment in the Final
Decision:
The EDM risk analysis was subject to extensive criticism by several project opponents, at
least a couple of whom appear to have engineering backgrounds and some experience in
pipe corrosion issues. Most of the concerns raised by those commentators were addressed
in the FEIS comment response section of the FEIS, Appendix K. However, some were not…
The comment above is fairly clear. For purposes of the Renton hearing, project opponents spent
considerable time writing detailed and sometimes well-founded and compelling critiques of the EDM
risk analysis. These comments were submitted well after the environmental review process was
completed, including the comment responses prepared by PSE and the Bellevue EIS team. Many of
the pipeline safety comments submitted into the Renton hearing duplicated concerns raised and
responded to in the environmental review process. Some were not. PSE didn’t respond to any of the
pipeline safety comments prepared for the Renton hearing beyond the responses made previously
during environmental review. The Final Decision identifies when prior environmental review
responses addressed pipeline safety concerns raised in the Renton comment letters and delineates the
examiner’s own analysis when PSE did not respond.
3. Reference to PSE’s Geotechnical Report Deleted from Final Decision. PSE
requests that the Final Decision be revised to identify that its geotechnical report was admitted into the
record. It is unclear whether the geotechnical report can be considered admitted. To avoid the issue,
reference to the geotechnical report will be removed from the Final Decision, since whether or not it
was admitted does not affect the outcome of the Final Decision.
Page 14, lines 14-15 of the Final Decision states that “the geotechnical report for the Renton
to assess the risks generated by the proposal.
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section was not submitted into the record.” Admission of the geotechnical report into the record is
dubious because hearing participants were not clearly apprised of whether the geotechnical report was
presented for admission. The admission of the geotechnical report is uncertain because PSE submitted
it as part of a thumb drive containing hundreds of pages of documents and hearing participants were
not advised that the geotechnical report was included in the thumb drive. The thumb drive was
submitted for admission 62 minutes into the hearing by Jill Ding from Renton planning staff as follows:
Jill Ding: Mr. Examiner, if I may, so the expert testimony and the exhibits that were
provided to you, could we enter those into the record as Exhibit No. 22?
Hearing Examiner: This is the notebook you’re talking about?
Jill Ding: Notebook or we will probably take the thumb drive.
Hearing Examiner: Any objection over the uh, this is the notebook that contains the written
comments of the expert witnesses plus the attachments they had to it. Ok
hearing none, then that’s admitted as Ex. 22.
The notebook referenced in the dialogue above included the geotechnical report, as did the thumb drive.
However, staff posted Ex. 22 on its website along with all other hearing exhibits during the hearing
and Ex. 22 did not include a copy of the geotechnical report. The Examiner used Ex. 22 as posted on-
line to write the Final Decision. The reference to “expert witnesses” made by the examiner was to
experts who had just testified on behalf of the applicant. The notebook contained the scripts used by
the experts to present their testimony. Those witnesses did not include the geotechnical engineer who
wrote the report. At no point during the hearing did PSE or anyone else identify that Ex. 22 included
the geotechnical report.
Overall, the examiner should have been more precise in his inquires as to the contents of the
notebook and thumb drive, Ms. Ding should have been more clear in identifying the contents and PSE
should have interjected and clarified the contents of its exhibit when it was presented by Ms. Ding.
None of that happened. From the information outlined above, hearing participants could have
reasonably understood that the contents of the notebook and the thumb drive were the same and that
the contents were limited to the written form of the expert testimony just presented on behalf of PSE
in addition to supporting documentation referenced by the experts. No hearing participants requested
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to see the exhibit before it was admitted. Given the absence of objection to any prior exhibit it is
unlikely that anyone would have objected to admission of the geotechnical report if they had known it
was admitted. From these factors, it is somewhat dubious whether the geotechnical report should be
considered admitted into the record.
Ultimately, the issue of whether the geotechnical report was admitted need not be addressed
since its admission would not change the results of the Final Decision. The Final Decision’s page 14
reference to the absence of the geotechnical report in the record was made in response to a project
opponent claim that pipeline safety was jeopardized by transmission poles toppled by earthquakes. The
Final Decision then used other information in the record to conclude that the proposal did not increase
pipeline safety risks due to earthquake activity. Since the conclusions on earthquake impacts were
reached without the geotechnical report, reference to the geotechnical report will be stricken from the
Final Decision.
4. Leak Detection Relevant to EDM Risk Analysis. PSE claimed that references to
Olympic Pipeline’s leak detection system should be stricken because Olympic Pipeline’s leak detection
system is not part of the PSE application and PSE has no control over the leak detection system. That
is beside the point. Project opponents asserted that the EDM risk analysis for the proposal was flawed
because its estimates of the magnitude of pipeline leaks didn’t take into account delays in discovering
the leaks caused by inadequate leak detection systems. In this regard, the adequacy of leak detection
was relevant to assessment of pipeline safety. The Final Decision correctly noted that delays in
detection were already factored into the EDM analysis because the baseline data was based upon the
average size of all pertinent pipeline leaks from 2010 through 2015, which included all delays in
response caused by leak detection systems. The Final Decision further found that there was no
reasonable basis to conclude the that the Olympic Pipeline leak detecti on system was materially
different from the systems involved in the baseline data collected between 2010 and 2015. All of this
information was pertinent to validating the accuracy of the EDM risk analysis. There is no reason to
remove this analysis as requested by PSE.
5. Richards Creek Substation in Bellevue. PSE identifies that page 33 of the Final
Decision incorrectly identifies the location of the Richards Creek substation as Renton. The correct
location is Bellevue and the Final Decision will be corrected accordingly.
6. Transmission Lines Authorized to Operate at Any Voltage. In its final reconsideration
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request, PSE requests Condition No. 11 of the Final Decision to be “corrected” to read the same as
Bellevue’s analogous condition, specifically that instead of requiring that PSE operate its two
transmission lines at 230kv, that they simply be required to operate at equivalent voltages. The record
was never entirely clear that the benefits of wave cancellation at 230kv similarly operate at all lower
voltages. This is why Condition No. 11 was limited to operating at 230kv. However, the Bellevue
CUP condition can be taken as evidence that the same benefits arise from wave cancellation at lower
voltages. For this reason, PSE request for reconsideration on this issue will be granted and Condition
No. 11 will be revised accordingly.
The revised condition requested by PSE contains an exception for times of emergency. In its
response to PSE’s motion, CENSE raises a concern that what constitutes an emergency is left to the
unbridled discretion of PSE. To account for this problem, the condition will require PSE to report all
periods of nonequivalent voltage in an annual report to the City of Renton Planning Manager, including
duration and basis for the times the lines are not run at equivalent voltages. The current planning
manager will be authorized to waive the reporting requirements to the extent necessary to protect (1)
national security; or (2) legally protected proprietary information.
7. Art Wrap Condition to Largely Remain As Presented by PSE at Hearing. PSE also
contested the City’s request to modify Condition No. 10 in its reconsideration motion. For the reasons
identified previously in this Decision Upon Reconsideration, PSE’s request is largely granted. The one
exception is that PSE offered to further modify Condition No. 10 to make security mandatory instead
of discretionary on behalf of the City should PSE need to proceed with energizing the new lines prior
to installation of the art wraps. Keeping the security option discretionary will maintain some flexibility,
enabling the City to work out mutually agreeable alternatives to the posting of security. Given this
added benefit of keeping the security language “as is,” the language will not be made mandatory.
C. CENSE Request for Reconsideration
The CENSE reconsideration request largely repeats the arguments made in the legal briefing
submitted by its attorney during the January 8, 2020 hearing. CENSE’s reconsideration motion doesn’t
raise anything significantly new that compels any change to the analysis of the Final Decision. Each
of the legal points raised in the CENSI motion are addressed separately below in the order presented
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in CENSE’s motion:
1. Proposal has not Changed from What Was assessed in FEIS. CENSE maintains the
position it took at hearing that the proposal has changed from what was evaluated in the FEIS and that
the impacts of the modified proposal must be addressed in an FEIS. As determined in the Final
Decision, the proposal has not changed.
CENSE takes the position that the project has changed because the transmission corridor was
assessed in the FEIS as an 16-mile transmission line stretching from the Talbot Substation in Renton
to the Sammamish substation in Redmond to the north. CENSE notes that to this point PSE has only
applied for local permits to build the transmission line between the Talbot station at the south end to
the new Richards Creek substation located roughly in the middle of the transmission line, not filing
any permit applications for the transmission line planned between the Richards Creek substation and
the Sammamish substation on the northern end of the project. CENSE takes great stock in the fact that
PSE had initially characterized the entire line as essential to meeting its power demands and then later
during review of permits for construction within the Bellevue, the Bellevue staff report identified that
the line from Renton to Bellevue could run independently of the line from Bellevue to Redmond and
that the Bellevue to Redmond line was needed for redundancy. See CENSE Motion, p. 2. CENSE
also pointed out that PSE had stated that permits for the Bellevue to Redmond portion would be filed
in 2017-2018 and no permits had been filed yet. CENSE motion, p. 6.
As pointed out in both Bellevue’s response to CENSE’s motion and CENSE’s own materials,
the phasing of the project and its need for redundancy has been identified in the environmental review
of the project since the early stages of review. In p. 4 of Appendix A to i ts reconsideration motion,
CENSE identifies some language added to the proposal description for the Phase 2 EIS that identified
the need for an upgraded transmission line in the center of the eastside, with the sentence underlined
that “[t]his would need to be fed by new 230kv transmission lines from the north to the south.” In
underscoring this sentence, PSE effectively made the point that the EIS analysis for the project was
based upon the understanding that a complete transmission line from Renton to Redmond was
necessary to effectively meet the power needs of the eastside. However, CENSE didn’t underscore the
next sentence in that description, that identified why a complete line was necessary, which provided as
follows: “[b]y having lines from two different directions, a substation can continue to be supplied even
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if one line goes down.” This second line identifies the need for redundancy.
CENSE is certainly correct that the proposal as evaluated in the FEIS was evaluated upon the
premise that the entire line from Renton to Redmond was necessary to serve the power needs of the
eastside. However, CENSE is incorrect in its position that later statements made during the Bellevue
permitting review on independence and redundancy are inconsistent with how the proposal description
during environmental review. In point of the fact, the reason why a complete line is necessary is in
order to provide for redundancy and associated independence. There is nothing inconsistent about
these positions and the comments made in the Bellevue staff report identifying the need for redundancy
simply reflect what was already expressly stated in the Phase 2 proposal description.
CENSE also asserts that the phasing of construction of the two north and south sections is not
consistent with what was evaluated in the FEIS. But as pointed out in Bellevue’s response to CENSE’s
motion, the phasing of the project was also identified in the FEIS analysis. Page 2-37 identified that
the construction of the north and south lines would have be phased so that the Lakeside substation
located near the center of the corridor could remain energized during construction. Page 2-37 even
identified that the south line would be constructed first, then once completed, construction would begin
on the north line. In short, the transmission line is being constructed in exactly the same manner and
phased sequence as identified in the FEIS. There has been no significant change in how the project
was described and assessed in the environmental review.
2. Since Proposal Has not Changed, there is No Change in Impacts to Renton. CENSE
asserts in its reconsideration motion that since the proposal has changed from a complete Renton to
Redmond line to a fully independent Renton to Bellevue line that the impacts to Renton have changed,
since the City could apparently require the Bellevue to Redmond line to be constructed instead of the
Renton to Bellevue line. However, as previously concluded, the FEIS identified that the entire
transmission line from Renton to Redmond is necessary to effectively meet the development objectives
of PSE. Further, as concluded in the Final Decision and re-affirmed in this Decision Upon
Reconsideration, project need is not relevant to Renton’s conditional use permit in any event. Even if
the transmission line could effectively meet the needs of the Renton community by being built between
Bellevue and Renton as opposed to Renton and Bellevue, the City still would have no authority to
require the line to be built in another jurisdiction so long as the project meets the City’s development
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standards.
3. Examiner Has no Authority to Order an SEIS. Ordering an SEIS would require the
preliminary determination that the FEIS prepared by the Bellevue EIS team and supplemen ted by the
EIS Consistency Analysis (December 13, 2019, Exhibit 2) was inadequate to meet SEPA
environmental review requirements. For the reasons identified in the Final Decision, the examiner
does not have jurisdiction to rule upon the adequacy of the FEIS. To add to the reasoning of the Final
Decision, CENSE’s position that the Examiner has such authority violates the rule of statutory
construction that statutes should be construed so that no clause, sentence, or word is made superfluous,
void, or insignificant. State v. Evergreen Freedom Foundation, 1 Wash.App.2d 288, 299 (2018). WAC
197-11-680(3) grants cities and counties the authority to adopt administrative appeal processes for
appeals of the adequacy of a FEIS. Such provisions would be rendered unnecessary if the adequacy of
an FEIS could simply be challenged during the hearing or other review of a project permit application.
In addition to rendering the WAC 197-11-680 appeal provisions superfluous, CENSE’s
position on examiner authority would also render the WAC 197-11-680 procedures unworkable. The
Final Decision concludes that the SEPA responsible official is tasked with issuing an FEIS, which
includes the determination whether an FEIS is adequate for issuance. The Final Decision’s conclusion
in this regard was based upon WAC 197-11-460, which provides that “[a] final EIS (FEIS) shall be
issued by the responsible official…” CENSE asserts that “[a]ll Subsection 460 does is address the
mechanics of distribution and timing issues of the FEIS…” That is correct, but those “mechanics” also
include who makes the decision. CENSE identifies no other regulation that assigns the decision on
adequacy to the hearing examiner or anyone else. Indeed, it would nonsensical to take the position that
the hearing examiner instead of the SEPA responsible official makes the initial decision on adequacy.
WAC 197-11-680(3)(a)(v) requires the hearing on an appeal of the adequacy of an FEIS to be
consolidated with the public hearing on the underlying permit application. If a hearing examiner were
the decision maker on FEIS adequacy, he or she would be tasked with holding a consolidated hearing
appealing his or her own decision on the adequacy of the FEIS. Further, in order for it to be possible
to consolidate an appeal hearing with the permit hearing, the examiner’s decision on adequacy would
have to be made prior to the permit hearing so that planning staff could schedule a consolidated hearing
in advance of the hearing date. That isn’t possible under CENSE’s interpretation, as it asserts that an
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examiner can evaluate EIS adequacy during the hearing before any consolidation has occurred.
In short, CENSE’s interpretation of examiner authority over FEIS adequacy renders the WAC
197-11-680 appeals process both superfluous and inoperable. For these reasons alone it cannot be
sustained. The appeals process contemplated in WAC 197-11-680 was premised on the fact that WAC
197-11-460 delegates the decision on the adequacy of an FEIS to the SEPA responsible official. That
is the way it should be construed.
CENSE also refers to WAC 197-11-535, which requires that public hearings held on projects
subject to SEPA review must be open to consideration of environmental impacts. CENSE believes this
provision authorizes the Examiner to consider the adequacy of an FEIS and thereby order an SEIS
when necessary. Nothing in the language of WAC 197-11-535 expressly or impliedly grants this
authority. WAC 197-11-535 simply requires the consideration of environmental impacts. The Final
Decision contains 26 pages of findings evaluating the environmental impacts of the proposal. No one
at the hearing was prevented from presenting information on environmental impacts. For these reasons,
the hearing was held in accordance with the requirements of WAC 197-11-535.
A final SEPA regulation cited by CENSE on the issue of FEIS adequacy was WAC 197 -11-
680(3)(a)(iv), which limits appeals on the adequacy of an FEIS to one hearing. CENSE finds it
significant that an exception to this rule is that it does not apply to “admi nistrative appeals before
another agency.” The exception cited by CENSE has no relevance to Renton’s review of the FEIS. As
acknowledged by CENSE in footnote 4 of its reconsideration brief, Renton has no administrative
appeal process to challenge the adequacy of an environmental impact statement. If it did, CENSE
would have had the opportunity to use it even if an administrative appeal had been filed in Bellevue as
well, as authorized by WAC 197-11-680(3)(a)(iv).
In its assertion that an SEIS is necessary, CENSE further takes the position that its alleged
change in proposal from a full transmission line to a half transmission line between Renton and
Bellevue will result in power distribution changes that need to be further assessed. However, there is
nothing to suggest that this change in distribution characteristics would have any adverse impacts on
the Renton community beyond issues related to whether the proposal effectively meets the power needs
of the Renton community. As determined in the Final Decision and re-affirmed below, the need for the
proposal is not relevant to Renton’s conditional use permit review.
4. Needs Assessment Beyond Scope of Conditional Use Permit Review. Conclusion No.
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8 of the Final Decision determined that project need is not relevant to conditional use permit review.
CENSE disagreed with the reasoning of Conclusion No. 8 based upon two arguments: (1) the
environmental review for the proposal evaluated project need so for that reason it should have been
addressed in the decision; and (2) Conclusion No. 8 overstates the jurisdiction of the Washington State
Utilities and Transportation Commission (UTC) to regulate rates. These arguments are not found
persuasive as the UTC authority to regulate project need is construed as the legislatively adopted
standard for adequate need.
It is acknowledged that the inclusion of project need analysis in the SEPA environmental
documents for the project is pertinent to the authority of a hearing examiner to assess project need.
RCW 43.21C.060 authorizes a decision maker to condition a project based upon environmental impacts
identified in SEPA environmental documents if those conditions are based upon adopted SEPA
policies. As outlined in Conclusion of Law No. 5, the City of Renton has comprehensive plan policies
that encourage the availability of efficient electrical infrastructure. RMC 4 -8-070M2b adopts the City
of Renton Comprehensive Plan as a SEPA policy.
Although there is the potential for mitigation under SEPA even if project need is not pertinent
to permitting criteria, additional analysis and associated mitigation is not authorized in this case either
because (1) the “need’ impacts are not environmental impacts subject to environmental review; and (2)
if they are subject to environmental review, they are adequately addressed by UTC rate review.
In assessing whether project need is an environmental impact subject to SEPA review, it must
first be understood what impact is under consideration. As previously mentioned, the environmental
impacts of the proposal have been exhaustively analyzed in three separate EISs and a lengthy hearing
examiner decision. The only impact that hasn’t been addressed that could conceivably result from
unnecessary utility infrastructure would be the rate impact to utility consumers. As this is purely an
economic impact, it is dubious that such an impact would qualify as an environmental impact subject
to environmental review. The operative question, therefore, is whether impacts to utility rates qualify
as environmental impacts subject to SEPA review.
In answer to this operative question, the starting point is WAC 197-11-444, which lists the
elements of the environment subject to SEPA review. WAC 197-11-444(2)(d) includes “public
services and utilities,” which further includes “[o]ther government services or utilities.” It is important
to recognize that utilities under both descriptions is qualified by either “public” or “governmental.”
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This qualification is important because PSE is a private company and it is entirely plausible that the
drafters of WAC 197-11-444 found it reasonable to assess the business plans of public entities but not
private ones. But even if it’s possible to get past the public/private distinction in WAC 197 -11-444,
the fact that the impacts of the utility are narrowed down to rate impacts are still problematical, as the
courts have not shown a willingness to extend SEPA review to purely economic impacts. See Indian
Trail Prop. Ass’n v. Spokane, 77 Wn. App. 430, 444 (1994)( “We agree that if the probable effect of
[economic] competition is such that the "built environment" is affected, review is called for by WAC
197-11-444(2). However, economic competition, in and of itself, is not an element of the environment
under WAC 197-11-448(3)”)(citations omitted).
Ultimately, whether or not project need is validly subject to SEPA review and mitigation need
not be addressed because as concluded in the Final Decision, the Washington State Utilities and
Transportation Commission (UTC) adequately addresses rate impacts resulting from project need
issues. CENSE takes issue with this position because the UTC can only control rates after the fact, by
denying rate increases for completed projects that the UTC finds unnecessary. See WAC 480-100-
238(6). Although not ideal, UTC’s after-the-fact ability to deny rate increases to fund projects it finds
unnecessary serves as powerful incentive for utilities such as PSE to work with the public and the UTC
to ensure that it efficiently uses rate revenues in an efficient and effective manner. The fact that the
UTC doesn’t take a more proactive approach in regulating project need is likely a recognition of the
fact that companies like PSE are private and some deference is due private business operations.
Certainly, a city does not regulate the business plans of major retail stores under the guise of land use
review to ensure that the retailer provides the lowest prices possible to city consumers. The public
interest in regulating private utilities, of course, is higher and more justifiable due to the monopoly
enjoyed by the utility and the fundamental need of the service provided. The UTC’s regulatory process
for PSE rates represents a balancing of avoiding undue government encroachment into private business
decision making and the high public interest in ensuring fair and reasonable utility rates. That balancing
of private verses public interest is found to adequately minimize rate impacts for purposes of SEPA
review.
5. Olympic Pipeline Actions Effectively Mitigated Through Conditions Requiring
Coordination and Disclosure. In the final portion of its reconsideration motion, CENSE points out that
the City of Renton has no authority to regulate Olympic Pipeline. CENSE posits that the record should
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be re-opened to see if Olympic Pipeline has conducted AC interference studies it stated it would
conduct in 2017 to assess the need for additional AC interference protection measures necessitated by
the proposal.
CENSE is correct that the examiner has no authority to regulate the actions of Olympic Pipeline.
PSE can implement most of the mitigation measures necessary to ensure that it’s proposal doesn’t
jeopardize pipeline safety. Specifically, the installation of shield wires and the proper design and
configuration of transmission poles can reduce the adverse impacts of electrical interference down to
safe levels. However, there are measures that Olympic Pipeline can take to further minimize risk,
including installation of grounding systems. Coordination between Olympic and PSE is particularly
important during the construction phase of the proposal, to ensure that construction activities don’t
damage the pipeline.
Although the examiner cannot compel Olympic Pipeline to do anything, the coordination and
disclosure requirements of the conditions of approval will likely provide as much incentive for Olympic
Pipeline to act as any direct authority to impose conditions. This is because if Olympic is put on notice
of a hazardous situation and fails to act, it’s resulting potential liability and/or that of PSE would be
substantial. As repeatedly asserted by PSE and noted in the EISs prepared for the proposal, PSE and
Olympic Pipeline have a long history of working cooperatively within the PSE transmission corridor.
The conditions of approval build upon this working relationship by requiring disclosure of these efforts
to the City of Renton to enhance accountability, transparency and incentives to avoid any actions that
could increase pipeline safety risk.
In order to enhance the function and utility of the disclosures required by the conditions of
approval, the second paragraph of Condition No. 7 of the Pipeline Safety section of Ex. 2 is replaced
with the following:
PSE will file a mitigation and monitoring report with the City of Renton prior to
energization that documents consultations with Olympic and mitigation measures to
address safety-related issues. The report shall verify that PSE has notified Olympic of
all actions that Olympic must take to assure that the proposal does not materially
jeopardize pipeline safety. The report shall further identify whether Olympic has or will
take the actions necessary to present any material increase in risk. The current
planning manager shall waive this requirement to the extent necessary to protect
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national security or legally protected proprietary business information.
DECISION
The Final Decision of the above-captioned matter is supplemented with the analysis in this
Decision Upon Reconsideration. In addition, corrections and revisions to the Final Decision resulting
from this Decision Upon Reconsideration are listed below:
1. Page 31 of the Final Decision references testimony from Carol Hellend on behalf of the
City of Bellevue The reference is changed to Liz Stead, Land Use Director for the City
of Bellevue.
2. Condition No. 10 is replaced with the following:
Individual art wraps for the transmission line poles shall be submitted to the Current
Planning Project Manager for review and approval prior to the issuance of a
Construction Permit. PSE will install art wraps at up to 15 transmission line pole
locations. Artwork shall be installed prior to the energizing of the transmission line, or
as otherwise approved by the Current Planning Project Manager, but at no point will
art installation delay the transmission lines from being energized. The Current
Planning Manager may require a security bond in a form specified by the Manager for
completion of the artwork if it is not installed prior to energizing. The security amount
shall include the estimated costs of enforcement.
3. The second full paragraph of page 14 of the Final Decision is replaced with the following:
From the comments made by the EIS team as outlined above, it is clear that the
transmission poles have been designed to withstand earthquake events and that they will
not be located within any earthquake hazard area. However, earthquakes could still
trigger landslides in the project area and it’s not clear from the environmental impact
statements whether the impacts of landslides to the pipeline could be exacerbated by the
proximity of the proposed transmission line to the pipeline.
4. Page 33 of the Final Decision incorrectly identifies the location of the Richards Creek
substation as Renton. The correct location is Bellevue and the Final Decision is corrected
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accordingly.
5. Condition No. 11 is replaced with the following:
PSE shall operate both transmission lines at equivalent voltage ratings, except as
necessary to respond to emergency situations. PSE shall submit an annual report to the
current planning manager detailing the number, type and duration of emergencies. The
current planning manager will be authorized to waive the reporting requirements to the
extent necessary to protect (1) national security; or (2) legally protected proprietary
information. The current planning manager may waive the requirement for annual
reporting entirely any time after five years if the report is no longer in the public interest.
6. The first paragraph of page 3-12 (beginning with “If requested…”) of the Pipeline Safety
section of Ex. 2, Environmental Consistency Analysis, is replaced with the following:
PSE will file a mitigation and monitoring report with the City of Renton prior to
energization that documents consultations with Olympic and mitigation measures to
address safety-related issues. The report shall verify that PSE has notified Olympic of all
actions that Olympic must take to assure that the proposal does not materially jeopardize
pipeline safety. The report shall further identify whether Olympic has or will take the
actions necessary to present any material increase in risk. The current planning manager
shall waive this requirement to the extent necessary to protect national security or legally
protected proprietary business information.
DATED this 24th day of March 2020.
City of Renton Hearing Examiner
Appeal Right and Valuation Notices
RMC 4-8-080(G) classifies the application(s) subject to this decision as Type III application(s)
subject to closed record appeal to the City of Renton City Council. Appeals of the hearing examiner’s
decision must be filed with the Renton City Clerk within fourteen (14) calendar days from the
issuance of the decision as outlined in RMC 4-8-110C2.
Affected property owners may request a change in valuation for property tax purposes
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notwithstanding any program of revaluation.
Reconsideration
As this application has already been subject to reconsideration review, no further
reconsideration requests are allowed. See RMC 4-8-100I52
2 RMC 4-8-100I5 limits reconsideration requests to one per party of record. The deadline for requesting
reconsideration is construed as prior to the expiration of the appeal period from issuance of the original decision, not
the Decision Upon Reconsideration. Consequently, any new reconsideration requests by any other party of record
would be rejected as untimely.