HomeMy WebLinkAboutPSE Response to CENSE's Motion for Reconsideration
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 1
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
The Honorable Phil Olbrechts
BEFORE THE HEARING EXAMINER
FOR THE CITY OF RENTON, WASHINGTON
In re: Renton Land Use Matter
LUA18-000055
Puget Sound Energy, Inc.
Energize Eastside Conditional Use Permit
File
No. Renton Land Use Matter
LUA18-000055
PUGET SOUND ENERGY, INC.’S
RESPONSE TO CENSE’S MOTION FOR
RECONSIDERATION.
The Coalition of Eastside Neighbors for Sensible Energy’s (“CENSE’s”) motion
for reconsideration should be denied as it is premised on issues beyond the Renton
municipal code (“RMC”) (e.g., project need, alternatives, and adequacy under the State
Environmental Policy Act (“SEPA”)) and a project not proposed by Puget Sound Energy,
Inc. (“PSE”). As correctly held by the Hearing Examiner, not only are CENSE’s questions
beyond his review,1 but CENSE’s arguments are based on a CENSE-designed “deadend
project” which asks the Hearing Examiner to assume that PSE will only build half of the
1Revised Finding of Fact, Conclusions of Law and Final Decision at 2 (“CENSE’s need
issues are not pertinent to the review criteria of the conditional use permit under review.”);
id. at 31 (“The hearing examiner has no jurisdiction to address the adequacy of the EIS.”).
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 2
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
project proposed by PSE.2 “There is no reasonable basis to conclude that PSE will not
follow through on constructing the entire proposal.”3 Indeed PSE has been consistent: PSE
is working to construct the full Energize Eastside project, a 16-mile transmission line
upgrade from the Sammamish substation in Redmond to the Talbot substation in Renton,
and a recently approved new substation in the city of Bellevu (“Project”). The entire
project proposed by PSE is needed to comply with mandatory federal transmission
planning criteria. CENSE’s attempt to redefine the project and Renton’s code does not
provide a basis for reconsideration and should be rejected.
I. RESPONSIVE STATEMENT OF FACTS
The background information provided by CENSE challenges the operational need
for PSE’s proposal. This inquiry is not relevant to the Hearing Examiner’s review of
conditional use permit (“CUP”) criteria in Renton.4 Nonetheless, PSE provides a limited
response to address material inaccuracies in CENSE’s statement of facts.
As consistently stated, PSE proposes an approximately 16-mile transmission line
upgrade from Redmond to Renton to bring PSE’s transmission system into compliance
with mandatory federal planning criteria.5 Because the Project (and the existing
transmission line corridor) traverses four cities, PSE must seek approval from each
2 Id. at 31; id. at 32 (“there is no evidence that PSE will not follow through on the
complete transmission line between the Talbot and Sammamish substations.”).
3 Id. at 31.
4 See 4-9-060(D)(1)-(8).
5 PSE, Hearing Memorandum at 1; Ex. 18 at 1-1 (Final Energize Eastside Environmental
Impact Statement (“EIS”) explaining that the proposed facilities “address a deficiency in
electrical transmission capacity during peak periods that PSE has identified through its
system planning process”); Ex. 14 (PSE’s Conditional Use Justification) at 1.
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 3
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
jurisdiction independently.6 In addition to sequential project permitting, PSE plans to
phase project construction because “[t]he existing electrical system is not robust enough to
maintain reliable service if the entire 18-mile facility is taken out of service at one time.”7
Phasing construction “will allow PSE to keep the existing 115 kV facilities partially in
service during construction, which will ensure the continuation of reliable service to
customers.”8 PSE is proceeding with the permitting and construction of the south half of
the project first and then will proceed with north end permitting.9
PSE’s plan to phase construction has been a matter of public records since at least
March 2018 (almost two years before the Renton CUP hearing), when it was fully
described in the Final Environmental Impact Statement (“EIS”):
The project is expected to be built in phases, with the south end (from the
Talbot Hill substation to the proposed Richards Creek substation) being
the first phase, followed by the north phase as soon as design, permitting,
and energization of the south phase would allow. The project needs to be
built in two construction phases to keep the Lakeside substation energized,
thereby keeping the transmission system on-line to serve customers.
During the construction of the south phase, the Lakeside substation will be
served from the north and likewise, once the south phase is complete, it
will be used to serve the Eastside while the north half is constructed.10
6 PSE, Hearing Memorandum at 14-15 (explaining the legal and practical constraints that
resulted in phased permitting and construction); Ex. 14 at 1. PSE disagrees that EFSEC
has jurisdiction to permit the entire Energize Eastside project.
7 Ex. 14 at 1. We note that the proposed alignment identified in the EIS is 16 miles rather
than 18 miles (the length of a previously preferred transmission line route).
8 Id.; Ex. 18 at 2-37 (“The project needs to be built in two construction phases to keep the
Lakeside substation energized, thereby keeping the transmission system on-line to serve
customers.”).
9 Ex. 14 at 1.
10 Ex. 18 at 2-37 (construction sequencing).
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 4
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
PSE’s plan to sequentially permit the project is also detailed in the EIS.11 As correctly
found by the Hearing Examiner, PSE has not deviated from this plan and continues to
work towards the completion of the entire 16-mile line.12 CENSE’s unfounded assertions
in its statement of facts (and all legal arguments based on this assertion) are unsupported
by the record.13
PSE has been equally clear that the entire 16-mile transmission line upgrade is
required to comply with federal transmission planning criteria, which is confirmed in the
EIS and PSE’s application materials.14 Shorter segments are not viable project alternatives
because they do not solve the transmission capacity deficit that drives project need and,
contrary to CENSE’s representations, PSE has never represented that the independent
functioning of the southern half of the project (i.e., the fact that once constructed the
transmission lines can be energized to serve customers prior to construction of the north)
in any way undermines the need for the full 16-mile project. Rather, as explained in the
11 Ex. 18 at 1-15 (Figure 1-3 summarizing permits required for the Project).
12 Revised Findings of Fact, Conclusions of Law and Final Decision at 31 (finding that
“there is no reasonable basis to conclude that PSE will not follow through on constructing
the entire proposal.”); PSE, Hearing Memorandum at 1.
13 See, e.g., CENSE, Motion for Reconsideration at 2-3.
14 See, e.g., Ex. 18 at p. 1-6, Sect. 1.1 (describing facilities required to address PSE’s
electrical transmission deficiency), and Sect. 2.1.2; Ex. 17 (Phase I, Draft EIS) at 2-15-21
(explaining that PSE’s system requires a new 230kV transformer to address the identified
transmission deficiency and identifying the Sammamish and Talbot substations as the
closest sources of 230kV electricity to power that substation); Ex. 1 (Renton, EIS
Consistency Analysis; “Based on federally-mandated planning studies, PSE has determined that
upgraded transmission lines and a new substation are needed to address deficiencies in electrical
transmission capacity in peak periods.”); CENSE, Motion for Reconsideration at 6 (citing
PSE’s statement in its CUP Bellevue application that “[t]he transmission component of
the project must run between the Sammamish and Talbot Hill substations.”).
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 5
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
EIS, constructing the south segment first means that it can be energized during the
construction of the north segment thereby increasing electrical reliability to PSE’s
customers.15 CENSE’s mischaracterization of PSE’s project and viable project
“alternatives” lack a factural basis and should be rejected.
II. ARGUMENT
a. The Hearing Examiner Should Reject CENSE’s Invitation to Engage
Subject Matters beyond the City’s CUP Criteria.
The bulk of CENSE’s arguments lack any relevance to the Renton Hearing
Examiner’s application of RMC 4-9-030(D)(1)-(8) to PSE’s proposal and the record
developed during the City’s permitting review process. CENSE first asks the Hearing
Examiner to direct PSE to evaluate whether Renton could be “avoided entirely.”16 Beyond
resting on the false premise that only half of PSE’s proposal addresses the transmission
line deficiency (it does not17), the City of Renton’s code does not require an alternatives
analysis nor does it authorize the Hearing Examiner to require consideration of entirely
new project “alternatives” offered up at the CUP hearing. Rather, the code asks whether
PSE has demonstrated compliance with RMC 4-9-030(D)(1)-(8). Here, applying this
code, the Hearing Examiner correctly determined that PSE has fulfilled its burden and that
PSE’s CUP should be approved subject to conditions.
15 See Ex. 18 at 2-38 (EIS); Ex. 14 at 1 (“The existing system is not robust enough to
maintain reliable service if the entire facility is taken out of service at one time.”).
16 CENSE, Motion for Recondsideration at 6.
17 CENSE itself cites PSE’s conclusion (following extensive review and alternatives
analysis) that the transmission line upgrade “must run between the Sammamish and
Talbot Hill substations.” CENSE, Motion for Reconsideration at 6. There is no “deadend”
project. See also, note 14 supra.
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 6
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
The code also does not, as CENSE suggests, give the Hearing Examiner authority
to remand PSE’s proposal based on untested, late breaking allegations that PSE’s project
could go somewhere else.18 PSE, as the permit applicant, defines the project it seeks to
permit and that project (not CENSE’s deadend project) is subject to the Hearing
Examiner’s review under applicable code.
PSE’s proposal was developed following a two-phased EIS and full community
engagement on technological and routing alternatives and reviewed over the course of
years by the City of Renton’s planning staff.19 In this review, the planning staff took the
voluminous record, including CENSE's comments and PSE’s CUP application, and
reviewed it for compliance with RMC 4-9-030(D)(1)-(8) prior to issuing a
recommendation for approval.20 To accept CENSE’s newly identified deadend
“alternative” at the hearing would upend the entirety of this multi-year project review
process with a proposal not proposed by PSE and which does not fix the transmission
deficiency addressed by the full Energize Eastside project.21
CENSE’s proposition also flips the question before the Hearing Examiner from
asking whether substantial record evidence demonstrates compliance with RMC 4-9-
030(D)(1)-(8) to whether a third party opponent, at hearing, can propose a new, different
project proposal. Such a standard would turn every contentious Renton CUP hearing into
18 See RMC 4-9-030(D)(1)-(8).
19 See Ex. 17 and 18; Ex. 3 at 4 (summarizing Renton’s multi-year project review).
20 Ex. A (Renton Staff Report recommending approval).
21 CENSE, Motion for Reconsideration at 6 (citing PSE’s statement that “[t]he
transmission component of the project must run between the Sammamish and Talbot Hill
substations.”).
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 7
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
an opponent-led brainstorming session rather than a record-based adjudication of the
permit applicant’s proposal. This approach should be rejected.
b. The Hearing Examiner Lacks Jurisdiction to Require Additional
Review under SEPA.
Continuing to focus on its deadend “alternative,” CENSE argues that the Hearing
Examiner should order the preparation of a supplemental EIS to consider an alternative
(building half of PSE’s proposal) that does not fulfills PSE’s purpose and need.22 The
Hearing Examiner properly recognized that 1) CENSE is already adjudicating the
Energize Eastside EIS in King County Superior Court, 2) the Renton municipal code does
not provide for an EIS adequacy appeal23, and 3) the Renton Hearing Examiner lacks
jurisdiction over any EIS adequacy appeal or request for supplementation.24
As an initial matter, where a local code does not provide for procedureal SEPA
appeals, a decision to require supplementation (or not) is an intermediate SEPA
determination cognizable only through a constitutional writ of certiorari.25 The Hearing
Examiner lacks jurisdiction to entertain this question. Moreover, CENSE’s manufacturing
of a “deadend” alternative and a “change” in PSE’s proposal does not make it so; PSE’s
proposal remains what is proposed in the Final EIS, PSE’s Renton CUP application, and
22 The project analyzed by CENSE’s “expert” to analyze its new “alternative” does not
increase the validity of its case. The “deadend” project is not what PSE has proposed nor
is it sufficient to address the transmission line deficiency that drives project need.
23 RMC 4-9-070.R.2 (“…when any proposal or action is challenged as to a SEPA
procedural determination, there shall be no administrative appeal.”).
24 Revised Findings of Fact, Conclusions of Law and Final Decision at 31 (“The hearing
examiner has no jurisdiction to address the adequacy of the EIS.”).
25 See Saldin Sec. v. Snohomish Cty, 134 Wn.2d 288, 294-95 (1996).
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 8
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
the City’s staff report.26 Beyond being outside the Hearing Examiner’s purview, CENSE
has failed to identify a factual basis for its request.
c. The Hearing Examiner Lacks Jurisdiction to Review Project Need
Without any citation to the City of Renton’s code, CENSE also asks the Hearing
Examiner to determine whether the Energize Eastside project is needed.27 The Hearing
Examiner is correct: “CENSE’s need issues are not pertinent to the review criteria of the
conditional use permit under review.”28 Renton’s code is unambiguous and limits the
Hearing Examiner’s review to project impacts (e.g., impacts to lighting, traffic) and
compatibility with adjacent uses.29 No Renton CUP criteria require a demonstration of
project need nor does the code define what such a review would entail. The Hearing
Examiner properly executed his duty by refusing to engage analysis of project need and
CENSE fails to identify an appropriate basis for reconsideration.
CENSE attempts to resuscitate the lack of any Renton CUP criteria on need by
pointing to the “extensive discussion of need in the SEPA analysis for the project.”30 It is
axiomatic that a project EIS does not amend or expand a local jurisdiction’s land use code.
26 See note 5 supra.
27 As CENSE is well aware, the cities of Bellevue and Newcastle require that PSE
demonstrate an operational need for the project. A rejection of CENSE’s arguments here
by no means prevents them from raising these issues elsewhere.
28 Revised Findings of Fact, Conclusions of Law and Final Decision at 2; see also RMC 4-
9-030(D)(1)-(8) (lacking any requirement that PSE demonstrate an operational need for its
proposal).
29 RMC 4-9-060(d)(1)-(8).
30 CENSE, Motion for Reconsideration at 10.
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 9
719 Second Avenue Suite 1150
Seattle, WA 98104
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The land use code speaks for itself.31 Additionally, the scope of a project EIS (particularly
a two-phased project EIS that evaluates technological alternatives) is not defined by a
jurisdiction’s land use code, but rather evaluates defined “elements of the environment.”32
Accordingly, a project EIS may contain many topics lacking relevance to Renton’s CUP
criteria. Here, for example, the EIS contains information on impacts in Bellevue,
Redmond and Newcastle.33 The EIS informs the City’s CUP decision-making, but does
not, by any means, augment the scope of the Hearing Examiner’s review based solely on
its topical content. CENSE’s arguments should be rejected.
d. The Hearing Examiner’s Determinations on Pipeline Safety are
Supported by Substantial Evidence.
Responsive to public comment, the Hearing Examiner made extensive and detailed
findings on the substantial record confirming that the Energize Eastside project does not
increase pipeline safety risks.34 As presented at hearing, this record evidence includes
content from PSE’s in-house experts as well as third party experts on both construction in
a collocated corridor and on potential interactions between the proposed high voltage
transmission lines and pipeline facilities (i.e., fault potential and A/C interference). As the
Hearing Examiner found, PSE is implementing DNV-GL’s recommendations on design
(using the existing transmission line corridor and a delta line configuration) and
31 Messer v. Board of Adjustment, 19 Wn. App. 780, 787, 578 P.2d 50 (1978)) (“The scope
and nature of an administrative appeal or review must be determined by the provisions of
the statutes and ordinances which authorize them.”).
32 WAC 197-11-444 (defining elements of the environment).
33 Project need is also not an element of the environment under SEPA, but rather this
content in the EIS provides additional information relevant to the cities of Bellevue and
Newcastle’s codes.
34 Revised Findings of Fact, Conclusions of Law and Final Decision at 4-17; see PSE,
Hearing Memorandum at 11-12 (summarizing record on pipeline safety).
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 10
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
operational parameters (operating both lines at equivalent voltages). Applying this
mitigation, the transmission line upgrade “will not increase risk of a pipeline release.” 35
The effectiveness of these mitigation measures were independently validated by EDM and
Stantec, i.e., Renton’s EIS consultants, during the EIS process.36 The record on pipeline
safety is complete and there is no basis for reconsideration.
CENSE quotes Olympic Pipeline’s statement that it will continue to monitor and
assess the need for mitigation along the pipeline, and then asks for additional materials
from Olympic Pipeline. PSE regularly consults with Olympic Pipeline and coordinates on
the Energize Eastside project and the conditions in Renton’s CUP require additional
coordination. PSE’s CUP is also conditioned by the City and the Hearing Examiner to
continue this coordination prior to, during, and after Project construction.37 The record
confirms that pipeline safety has been extensively studied and that PSE’s proposal has
eliminated the risk of causing additional interaction between PSE’s transmission lines and
Olympic’s pipelines. No more is required.
III. CONCLUSION
In conclusion, and for the foregoing reasons, CENSE has failed to identify any
tenable legal basis for reconsideration. Their motion for reconsideration should be denied.
///
3535 Revised Findings of Fact, Conclusions of Law and Final Decision at 6; id. at 10 (“No
increase in risk was assigned to the 230kv/230kv configuration because no AC
interference was found to occur under this configuration as determined in the DNV
report”).
36 See Ex. 18 at Ch. 4.9 and Exhibit F (Stantec, Technical Review− Energize Eastside AC
Interference Analysis (May 2, 2017)).
37 Ex. 1 at 3-11-15 (Renton, EIS Consistency Analysis conditions regarding pipeline
safety).
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PUGET SOUND ENERGY’S RESPONSE TO CENSE
MOTION FOR RECONSIDERATION - 11
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
DATED this 9th day of March, 2020.
VAN NESS FELDMAN LLP
s/ Sara A. Leverette
Erin Anderson, WSBA #23282
Sara A. Leverette, WSBA #44183
719 Second Avenue, Suite 1150
Seattle, WA 98104
Tel: (206) 623-9372
Fax: (206) 623-4986
E-mail: ela@vnf.com; sal@vnf.com
Attorneys for Puget Sound Energy, Inc.
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719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623 -9372
CERTIFICATE OF SERVICE
I, I’sha Wilis, declare as follows:
That I am over the age of 18 years, not a party to this action, and competent to be a
witness herein;
That I, as a Legal Assistant in the office of Van Ness Feldman, caused true and
correct copies of the following documents to be emailed to the Hearing Examiner and
counsel of record as set forth below:
1. Puget Sound Energy, Inc.’s Resposne to CENSE Motion for Reconsideration;
2. Certificate of Service;
and that on March 9, 2020, I addressed said documents and deposited them for delivery as
follows:
City of Renton Hearing Examiner
City of Renton
Leslie Clark – lclark@rentonwa.gov
Jill Ding – jding@rentonwa.gov
Citizens for Sane Eastside Energy (CSEE)
Larry G. Johnson larry.ede@gmail.com
Coalition of Eastside Neighbors for Sensible Energy (CENSE)
Rick Aramburu rick@aramburu-eustis.com
Carol Cohoe carol@aramburu-eustis.com
I certify under penalty of perjury under the laws of the State of Washington that
the foregoing is true and correct.
EXECUTED at Seattle, Washington on this 9th day of March, 2020.
s/ I’sha Willis
I’sha Willis, Declarant