HomeMy WebLinkAboutPSE - Letter with Recon Decision - 3-26-2020 LET Y O.r
Armondo Pavone + 1
Mayor
of � �
41.FNT j
City Clerk Jason A.Seth,MMC
March 25, 2020
Re: Notice of Decision Upon Reconsideration: Puget Sound Energy Energize Eastside Conditional Use
Permit, File# LUA18-000055, CU-H, SME
INCLUDES INFORMATION REGARDING APPEAL PROCESS;PLEASE READ CAREFULLY
Dear Parties of Record:
Please Note regarding Appeal Process:
Due to Governor Inslee's"Stay Home, Stay Healthy" order(Proclamation 20-25),the City Clerk's Office is
working remotely. For that reason, appeals must be submitted electronically to
cityclerk@rentonwa.gov.The appeal fee, normally due at the time an appeal is submitted,will be
collected at a future date.
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, notwithstanding
any program of revaluation.
Reconsideration:
As this application has already been subject to reconsideration review, no further reconsideration
requests are allowed.See RMC 4-8-100152.
Please contact me at iseth@rentonwa.gov if you have questions,
Sincerely,
Jason A.Seth, MMC
City Clerk/Public Records Officer
425-430-6502
1055 South Grady Way,Renton,WA 98057 • 425-430-6510 • Fax 425-430-6516• rentonwa.gov
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BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
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10 RE: Puget Sound Energize Eastside )
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12 Conditional Use Permit ) DECISION UPON RECONSIDERATION
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LUA18-000055, CU-H, SME )
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17 SUMMARY
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19 The Final Decision dated February 6, 2020 approving the Energize Eastside conditional use
20 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.
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The most significant changes are to the conditions of approval. The conditions of approval from the
22 EIS consistency report requiring coordination between Olympic Pipeline and PSE have been enhanced
23 by mandating the filing of a mitigation report that verifies that PSE has notified Olympic of all actions
24 it must take to mitigate against the impacts of the proposal. The mitigation report must also document
25 whether such action has or will be done. Condition No. 10, requiring art wraps, has not been modified
26 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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1 conclusions that the proposal will not create any significant aesthetic impacts, acquiescence is
2 particularly important for this project. Condition No. 11,requiring the two transmission lines to operate
3 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
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the emergency exception, any uses of the emergency exception will have to be reported to the City of
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Renton in an annual report.
6 PSE raised various concerns with the relevancy and/or authority of the examiner to address
7 specified issues. All of the analysis identified by PSE was found to be relevant and necessary. PSE
8 also requested clarification on whether its geotechnical report was admitted into the record. For the
9 reasons discussed in detail below, it is unclear whether the geotechnical report should be considered
10 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
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Decision.
12 CENSE's request for reconsideration largely repeated the arguments it made during the hearing
13 in chief. It asserts that project need is relevant to the permit review and that the examiner had the
14 authority to require an SEIS. Although not expressly stated by CENSE, it apparently was advocating
15 the use of SEPA authority as opposed to conditional use permitting criteria to address project need.
16 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
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would likely be considered economic as opposed to environmental and thus outside the scope of
18 environmental review. Further,even if rate impacts were a valid environmental issue,the rate authority
19 of the UTC is still found adequate to mitigate this impact.
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22 BACKGROUND
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A Final Decision for the above-captioned matter was issued with a signature date of February 6,
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CONDITIONAL USE - 2
1 2020. The final decision was subject to three requests for reconsideration, as follows:
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3 1. City of Renton Request for Limited Reconsideration dated February 14, 2020.
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2. Puget Sound Energy, Inc.'s Request For Correction [RMC 4-8-100.H.7] And Response To
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Renton's Request For Limited Reconsideration dated February 27, 2020
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7 3. Motion for Reconsideration by CENSE dated February 28, 2020.
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9 The above motions were subject to the following responses:
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1. PSE February 27, 2020 correction/response identified above.
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12 2. City of Bellevue's Response to Motion for Reconsideration by CENSE dated March 6,
13 2020.
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15 3. Response of CENSE to PSE Motion for Clarification Or Reconsideration dated March 9,
16 2020.
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4. Puget Sound Energy, Inc.'s Response to CENSE's Motion for Reconsideration dated March
18 9, 2020.
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20 In reply to the PSE and Bellevue responses identified above, the following replies were filed:
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22 1. Cense Reply To Responses Of PSE And Bellevue To Cense Motion For Reconsideration
dated March 16, 2020.
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24 2. Puget Sound Energy; Inc's Reply On Motion For Reconsideration dated March 16, 2020.
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26 No other documents other than previously admitted exhibits were reviewed for these
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1 reconsideration requests. Reconsideration review was conducted without oral argument.
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4 ANALYSIS
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The three requests for reconsideration will each be separately addressed below:
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7 A. Renton Request for Reconsideration
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9 Renton's reconsideration request focused on enhancements to Condition No. 10 and identified
10 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.
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As noted in the City's reconsideration request, Page 31 of the Final Decision references
12 testimony from "Carol Hellend from the Development Services,Department of the City of Bellevue."
13 The audio recording of the hearing reflects that it was instead Liz Stead, Land Use Director for the City
14 of Bellevue. The final decision will be corrected accordingly.
15 Condition No. 1.0 requires PSE to install art wraps upon transmission line poles to reduce
16 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
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planning staff and understands that they have no objections to the slight modifications." Staff did not
18 object to the proposed revisions at hearing and the revisions were found acceptable and so adopted into
19 the Final Decision. Condition No. 10 is quoted as follows:
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21 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
22 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
23 on publicly visible PSE-owned property). Artwork shall be installed prior to the energizing
24 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
25 energized. The Current Planning Manager may require a cash security bond for
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CONDITIONAL USE- 4
1 completion of the artwork if it is not installed prior to energizing.
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In their reconsideration request, staff requested several revisions to Condition No. 10. First, it
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requested that the number of art wraps required be increased from"up to 12"poles to "up to 15"poles. -
4 PSE did not object to this increase in its reply. Condition No. 10 will be modified to require"up to 15"
5 poles.
6 Second, staff requested that language referencing a prior discussion at Renton Technical
7 College be deleted as overly vague. Specifically,the language subject to deletion provides as follows:
8 "(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
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No. 10 will be modified to remove the language referencing a Renton Technical College discussion.
10 Third, staff requested deletion of the language that provides that "but at no point will art
11 installation delay the transmission lines from being energized." PSE contests this request, asserting
12 that the timely completion of the project is too important to be delayed for art wraps. The City's request
13 to delete the language is denied. As previously argued by PSE, the FEIS concluded that the proposal
14 would not create any significant adverse aesthetic impacts without including a consideration of
mitigation by art wraps. The findings of the FEIS, coupled with the subjective nature of mitigation
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based upon aesthetics alone, puts the City in a very legally tenuous position in justifying delay of the
16 project for art wraps. Further, the authorityfor the planning manager to require bonding provides the
17 City with reasonable assurance that the art wraps will in fact be installed as required, without the need
18 for additional leverage by empowering the City to delay the project. To further strengthen the
19 enforcement position of the City, the bonding in Condition 10 will be required to cover the costs of
20 enforcement.
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B. PSE Request for Reconsideration.
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23 Overall, PSE had seven items it wished revised or clarified in the Final Decision. There was
24 no need found for any major revision or deletion resulting from these requests. Most significant for
25 PSE, Condition No. 11 will be revised from requiring that the two transmission lines operate at 230kv
26 to simply the same voltages. A Final Decision statement that PSE's geotechnical report was not
CONDITIONAL USE - 5
1 admitted into the record will be stricken since(1)the record is unclear whether the report was admitted,
2 and(2)the reference to the geotechnical report is not necessary to support the Final Decision conclusion
3 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
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state the substation will be located in Bellevue.
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Beyond the changes identified above, the remaining reconsideration requests made by PSE will
6 not be granted. In its reconsideration request,PSE claimed that the EDM risk analysis was not pertinent
7 to the proposal because it assessed the risks of a different transmission corridor route than that finally
8 proposed. This contention is rejected because the change in route, for a small segment more than 1.5
9 miles north of the Renton segment, has no material bearing upon the Final Decision conclusion that the
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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
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115kv/230kv line, whereas PSE proposal is to operate at 230kv/230kv. As discussed below, this was
12 factored into the Final Decision's use of the EDM analysis.
13 PSE wanted clarification on a Final Decision statement that no response was made to comments
14 submitted into the Renton hearing regarding pipeline safety. The Final Decision simply stated that no
15 responses were made to these comments by PSE or the City. Many of the issues raised in the comments
16 duplicated concerns raised and responded to during environmental review, but some concerns were
new and had not been previously addressed.
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PSE also contested the relevancy of Olympic Pipeline's leak detection system. As discussed
18 below, the PSE leak detection system is pertinent to the accuracy of the EDM risk analysis and for that
19 reason is pertinent to the review of the PSE proposal.
20 PSE contested the City's request to modify Condition No. 10, the condition requiring art wraps.
21 For the reasons identified above in the City's request to modify that condition, the condition will only
22 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
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reconsideration request:
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25 1. EDM Analysis Relevant. PSE claims that the Final Decision should not have
26 included an assessment of the EDM risk analysis because that analysis evaluated the pipeline safety of
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1 a transmission corridor route that differs from that ultimately proposed by PSE. The EDM analysis
2 was in part based upon an AC interference study that modelled impacts to what the SEPA documents
3 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
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divert from the PSE existing transmission corridor through south Bellevue. In its reconsideration
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briefing, PSE noted that the EDM report doesn't apply to the Renton segment because "[a]s was
6 presented at hearing and stated in the HE Decision, this is not the route or operational parameters
7 that PSE proposed to construct in Renton in its permit application to Renton." PSE's reference to
8 "operational parameters" alludes to the fact that the AC interference modelling was based upon a
9 115kv/230kv transmission line configuration as opposed to a 230kv/230kv configuration.
10 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
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was slightly different in the south Bellevue segment of the corridor does not undermine the ultimate
12 conclusion in the Final Decision that the risk of death or injury caused by the co-location is negligible.
13 At the outset it must be understood that the EDM risk analysis was done for the transmission corridor
14 as a whole, from the Sammamish substation down to the Talbot substation. The Renton segment is
15 only a small part of the entire transmission corridor, so the risk for the entire transmission segment as
16 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
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4.9-1 of the Final EIS, the entire proposed transmission line through all affected cities is collocated for
18 a total of 12 miles along the Olympic Pipeline. In the City of Renton, the corridor only has 0.4 miles
19 of colocation.
20 The Willow I and Willow 2 routes are separated from the Renton segment by the Newcastle
21 segment, which has a transmission corridor length of 1.5 miles. The Willow routes are not in Renton
22 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
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the amount of AC interference and hence risk of death or injury in the Renton segment. As shown in
24 Table 3.9-5 of the Phase 2 EIS, the Willow I option results in 0.9 miles less of colocation than the
25 Willow 2 option. As testified by Mr. Kemp at hearing, AC interference increases along with increases
26 in length of colocation, at least up to a point. Consequently, if the change in route from Willow 2 to
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• 1 Willow 1 more than 1.5 miles away would have any effect on the AC interference in the Renton
2 segment, it would be to lower it. It is conceivable that site constraints in Willow 1 route would prevent
3 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
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fact that DNV was able to find a configuration within the rest of the corridor that eliminated AC
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interference, that appears very unlikely.
6 As to the fact that the EDM report used 115kv/230kv operational parameters and PSE has
7 committed to 230kv/230k, that was factored into the Final Decision's analysis as follows:
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9 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
10 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
11 the EDM study, there would be no increase in pipeline release incidents by the proposed co-
12 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
13 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
14 methodologyof the EDM risk assessment, operating the lines at 230kv/230kv will not increase
risk of pipeline release.
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16 In short, the issues that PSE had with use of the EDM report are already factored into the
17 analysis of the Final Decision. It was implicit in the Final Decision that the risk in the Renton segment
18 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
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parameters from 115kv/230kv to 230kv/230kv, the Final Decision used the methodology' of the EDM
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'The"methodology"of the EDM report as regards impacts of co-location was not that complicated. The methodology
22 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
23 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 shield wires. The only remaining issue was external corrosion,
24 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 reference the EDM study to reach this
25 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
26 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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1 report to conclude that colocation would likely result in no change in risk from current conditions.
2 Given these factors, the Final Decision accurately assessed the relevance and significance of the EDM
3 study to the risk analysis of the PSE proposal and there is no reason to change that analysis upon
reconsideration.
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2. Record Lacking PSE Response to Pipeline Safety Comments. PSE's next
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concern in its request for reconsideration was clarification of the following comment in the Final
6 Decision:
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8 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
9 pipe corrosion issues. Most of the concerns raised by those commentators were addressed
10 in the FEIS comment response section of the FEIS,Appendix K. However, some were not...
11 The comment above is fairly clear. For purposes of the Renton hearing, project opponents spent
12 considerable time writing detailed and sometimes well-founded and compelling critiques of the EDM
13 risk analysis. These comments were submitted well after the environmental review process was
14 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
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responded to in the environmental review process. Some were not. PSE didn't respond to any of the
16 pipeline safety comments prepared for the Renton hearing beyond the responses made previously
17 during environmental review. The Final Decision identifies when prior environmental review
18 responses addressed pipeline safety concerns raised in the Renton comment letters and delineates the
19 examiner's own analysis when PSE did not respond.
20 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
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record. It is unclear whether the geotechnical report can be considered admitted. To avoid the issue,
22 reference to the geotechnical report will be removed from the Final Decision, since whether or not it
23 was admitted does not affect the outcome of the Final Decision.
24 Page 14, lines 14-15 of the Final Decision states that "the geotechnical report for the Renton
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26 to assess the risks generated by the proposal.
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1 section was not submitted into the record." Admission of the geotechnical report into the record is
2 dubious because hearing participants were not clearly apprised of whether the geotechnical report was
3 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
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not advised that the geotechnical report was included in the thumb drive. The thumb drive was
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submitted for admission 62 minutes into the hearing by Jill Ding from Renton planning staff as follows:
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7 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?
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9 Hearing Examiner: This is the notebook you're talking about?
10 Jill Ding: Notebook or we will probably take the thumb drive.
11 Hearing Examiner: Any objection over the uh, this is the notebook that contains the written
12 comments of the expert witnesses plus the attachments they had to it. Ok
hearing none, then that's admitted as Ex. 22.
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14 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
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and Ex. 22 did not include a copy of the geotechnical report. The Examiner used Ex. 22 as posted on-
16 line to write the Final Decision. The reference to "expert witnesses" made by the examiner was to
17 experts who had just testified on behalf of the applicant. The notebook contained the scripts used by
18 the experts to present their testimony. Those witnesses did not include the geotechnical engineer who
19 wrote the report. At no point during the hearing did PSE or anyone else identify that Ex. 22 included
20 the geotechnical report.
Overall, the examiner should have been more precise in his inquires as to the contents of the
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notebook and thumb drive, Ms. Ding should have been more clear in identifying the contents and PSE
22 should have interjected and clarified the contents of its exhibit when it was presented by Ms. Ding.
23 None of that happened. From the information outlined above, hearing participants could have
24 reasonably understood that the contents of the notebook and the thumb drive were the same and that
25 the contents were limited to the written form of the expert testimony just presented on behalf of PSE
26 in addition to supporting documentation referenced by the experts. No hearing participants requested
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1 to see the exhibit before it was admitted. Given the absence of objection to any prior exhibit it is
2 unlikely that anyone would have objected to admission of the geotechnical report if they had known it
3 was admitted. From these factors, it is somewhat dubious whether the geotechnical report should be
considered admitted into the record.
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Ultimately, the issue of whether the geotechnical report was admitted need not be addressed
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since its admission would not change the results of the Final Decision. The Final Decision's page 14
6 reference to the absence of the geotechnical report in the record was made in response to a project
7 opponent claim that pipeline safety was jeopardized by transmission poles toppled by earthquakes. The
8 Final Decision then used other information in the record to conclude that the proposal did not increase
9 pipeline safety risks due to earthquake activity. Since the conclusions on earthquake impacts were
10 reached without the geotechnical report, reference to the geotechnical report will be stricken from the
Final Decision.
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4. Leak Detection Relevant to EDM Risk Analysis. PSE claimed that references to
12 Olympic Pipeline's leak detection system should be stricken because Olympic Pipeline's leak detection
13 system is not part of the PSE application and PSE has no control over the leak detection system. That
14 is beside the point. Project opponents asserted that the EDM risk analysis for the proposal was flawed
15 because its estimates of the magnitude of pipeline leaks didn't take into account delays in discovering
16 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
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detection were already factored into the EDM analysis because the baseline data was based upon the
18 average size of all pertinent pipeline leaks from 2010 through 2015, which included all delays in
19 response caused by leak detection systems. The Final Decision further found that there was no
20 reasonable basis to conclude the that the Olympic Pipeline leak detection system was materially
21 different from the systems involved in the baseline data collected between 2010 and 2015. All of this
22 information was pertinent to validating the accuracy of the EDM risk analysis. There is no reason to
remove this analysis as requested by PSE.
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5. Richards Creek Substation in Bellevue. PSE identifies that page 33 of the Final
24 Decision incorrectly identifies the location of the Richards Creek substation as Renton. The correct
25 location is Bellevue and the Final Decision will be corrected accordingly.
26 6. Transmission Lines Authorized to Operate at Any Voltage. In its final reconsideration
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1 request, PSE requests Condition No. 11 of the Final Decision to be "corrected" to read the same as
2 Bellevue's analogous condition, specifically that instead of requiring that PSE operate its two
3 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
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voltages. This is why Condition No. 11 was limited to operating at 230kv. However, the Bellevue
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CUP condition can be taken as evidence that the same benefits arise from wave cancellation at lower
6 voltages. For this reason, PSE request for reconsideration on this issue will be granted and Condition
7 No. 11 will be revised accordingly.
8 The revised condition requested by PSE contains an exception for times of emergency. In its
9 response to PSE's motion, CENSE raises a concern that what constitutes an emergency is left to the
10 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
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duration and basis for the times the lines are not run at equivalent voltages. The current planning
12 manager will be authorized to waive the reporting requirements to the extent necessary to protect (1)
13 national security; or(2) legally protected proprietary information.
14 7. Art Wrap Condition to Largely Remain As Presented by PSE at Hearing. PSE also
15 contested the City's request to modify Condition No. 10 in its reconsideration motion. For the reasons
16 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
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of discretionary on behalf of the City should PSE need to proceed with energizing the new lines prior
18 to installation of the art wraps. Keeping the security option discretionary will maintain some flexibility,
19 enabling the City to work out mutually agreeable alternatives to the posting of security. Given this
20 added benefit of keeping the security language "as is,"the language will not be made mandatory.
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22 C. CENSE Request for Reconsideration
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The CENSE reconsideration request largely repeats the arguments made in the legal briefing
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submitted by its attorney during the January 8,2020 hearing. CENSE's reconsideration motion doesn't
25 raise anything significantly new that compels any change to the analysis of the Final Decision. Each
26 of the legal points raised in the CENSI motion are addressed separately below in the order presented
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1 in CENSE's motion:
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3 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
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the impacts of the modified proposal must be addressed in an FEIS. As determined in the Final
5
Decision,the proposal has not changed.
6 CENSE takes the position that the project has changed because the transmission corridor was
7 assessed in the FEIS as an 16-mile transmission line stretching from the Talbot Substation in Renton
8 to the Sammamish substation in Redmond to the north. CENSE notes that to this point PSE has only
9 applied for local permits to build the transmission line between the Talbot station at the south end to
10 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
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the Sammamish substation on the northern end of the project. CENSE takes great stock in the fact that
12 PSE had initially characterized the entire line as essential to meeting its power demands and then later
13 during review of permits for construction within the Bellevue, the Bellevue staff report identified that
14 the line from Renton to Bellevue could run independently of the line from Bellevue to Redmond and
15 that the Bellevue to Redmond line was needed for redundancy. See CENSE Motion, p. 2. CENSE
16 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.
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As pointed out in both Bellevue's response to CENSE's motion and CENSE's own materials,
18 the phasing of the project and its need for redundancy has been identified in the environmental review
19 of the project since the early stages of review. In p. 4 of Appendix A to its reconsideration motion,
20 CENSE identifies some language added to the proposal description for the Phase 2 EIS that identified
21 the need for an upgraded transmission line in the center of the eastside, with the sentence underlined
22 that "[tJhis 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
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based upon the understanding that a complete transmission line from Renton to Redmond was
24 necessary to effectively meet the power needs of the eastside. However, CENSE didn't underscore the
25 next sentence in that description, that identified why a complete line was necessary, which provided as
26 follows: "[bJy having lines from two different directions, a substation can continue to be supplied even
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I if one line goes down." This second line identifies the need for redundancy.
2 CENSE is certainly correct that the proposal as evaluated in the FEIS was evaluated upon the
3 premise that the entire line from Renton to Redmond was necessary to serve the power needs of the
4 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
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during environmental review. In point of the fact, the reason why a complete line is necessary is in
6 order to provide for redundancy and associated independence. There is nothing inconsistent about
7 these positions and the comments made in the Bellevue staff report identifying the need for redundancy
8 simply reflect what was already expressly stated in the Phase 2 proposal description.
9 CENSE also asserts that the phasing of construction of the two north and south sections is not
10 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
11
the construction of the north and south lines would have be phased so that the Lakeside substation
12 located near the center of the corridor could remain energized during construction. Page 2-37 even
13 identified that the south line would be constructed first,then once completed, construction would begin
14 on the north line. In short, the transmission line is being constructed in exactly the same manner and
15 phased sequence as identified in the FEIS. There has been no significant change in how the project
16 was described and assessed in the environmental review.
2. Since Proposal Has not Changed. there is No Change in Impacts to Renton. CENSE
17
asserts in its reconsideration motion that since the proposal has changed from a complete Renton to
18 Redmond line to a fully independent Renton to Bellevue line that the impacts to Renton have changed,
19 since the City could apparently require the Bellevue to Redmond line to be constructed instead of the
20 Renton to Bellevue line. However, as previously concluded, the FEIS identified that the entire
21 transmission line from Renton to Redmond is necessary to effectively meet the development objectives
22 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
23
the transmission line could effectively meet the needs of the Renton community by being built between
24
Bellevue and Renton as opposed to Renton and Bellevue, the City still would have no authority to
25 require the line to be built in another jurisdiction so long as the project meets the City's development
26
CONDITIONAL USE - 14
1 standards.
2 3. Examiner Has no Authority to Order an SEIS. Ordering an SEIS would require the
3 preliminary determination that the FEIS prepared by the Bellevue EIS team and supplemented by the
EIS Consistency Analysis (December 13, 2019, Exhibit 2) was inadequate to meet SEPA
4
environmental review requirements. For the reasons identified in the Final Decision, the examiner
5
does not have jurisdiction to rule upon the adequacy of the FEIS. To add to the reasoning of the Final
6 Decision, CENSE's position that the Examiner has such authority violates the rule of statutory
7 construction that statutes should be construed so that no clause, sentence,or word is made superfluous,
8 void,or insignificant.State v. Evergreen Freedom Foundation, 1 Wash.App.2d 288,299(2018). WAC
9 197-11-680(3) grants cities and counties the authority to adopt administrative appeal processes for
10 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.
11
In addition to rendering the WAC 197-11-680 appeal provisions superfluous, CENSE's
12 position on examiner authority would also render the WAC 197-11-680 procedures unworkable. The
13 Final Decision concludes that the SEPA responsible official is tasked with issuing an FEIS, which
14 includes the determination whether an FEIS is adequate for issuance. The Final Decision's conclusion
15 in this regard was based upon WAC.197-11-460, which provides that "[a]final EIS (FEIS) shall be
16 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
17
include who makes the decision. CENSE identifies no other regulation that assigns the decision on
18 adequacy to the hearing examiner or anyone else. Indeed, it would nonsensical to take the position that
19 the hearing examiner instead of the SEPA responsible official makes the initial decision on adequacy.
20 WAC 197-11-680(3)(a)(v) requires the hearing on an appeal of the adequacy of an FEIS to be
21 consolidated with the public hearing on the underlying permit application. If a hearing examiner were
22 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
23
to consolidate an appeal hearing with the permit hearing, the examiner's decision on adequacy would
24
have to be made prior to the permit hearing so that planning staff could schedule a consolidated hearing
25 in advance of the hearing date. That isn't possible under CENSE's interpretation, as it asserts that an
26
CONDITIONAL USE - 15
' 1 examiner can evaluate EIS adequacy during the hearing before any consolidation has occurred.
2 In short, CENSE's interpretation of examiner authority over FEIS adequacy renders the WAC
3 197-11-680 appeals process both superfluous and inoperable. For these reasons alone it cannot be
4 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
5
is the way it should be construed.
6 CENSE also refers to WAC 197-11-535, which requires that public hearings held on projects
7 subject to SEPA review must be open to consideration of environmental impacts. CENSE believes this
8 provision authorizes the Examiner to consider the adequacy of an FEIS and thereby order an SEIS
9 when necessary. Nothing in the language of WAC 197-11-535 expressly or impliedly grants this
10 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
Il
at the hearing was prevented from presenting information on environmental impacts. For these reasons,
12 the hearing was held in accordance with the requirements of WAC 197-11-535.
13 A final SEPA regulation cited by CENSE on the issue of FEIS adequacy was WAC 197-11-
14 680(3)(a)(iv), which limits appeals on the adequacy of an FEIS to one hearing. CENSE finds it
15 significant that an exception to this rule is that it does not apply to "administrative appeals before
16 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
17
appeal process to challenge the adequacy of an environmental impact statement. If it did, CENSE
18 would have had the opportunity to use it even if an administrative appeal had been filed in Bellevue as
19 well, as authorized by WAC 197-11-680(3)(a)(iv).
20 In its assertion that an SEIS is necessary, CENSE further takes the position that its alleged
21 change in proposal from a full transmission line to a half transmission line between Renton and
22 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
23
the Renton community beyond issues related to whether the proposal effectively meets the power needs
24
of the Renton community. As determined in the Final Decision and re-affirmed below, the need for the
25 proposal is not relevant to Renton's conditional use permit review.
26 4. Needs Assessment Beyond Scope of Conditional Use Permit Review. Conclusion No.
CONDITIONAL USE - 16
1 8 of the Final Decision determined that project need is not relevant to conditional use permit review.
2 CENSE disagreed with the reasoning of Conclusion No. 8 based upon two arguments: (1) the,
3 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
4
Utilities and Transportation Commission (UTC) to regulate rates. These arguments are not found
5
persuasive as the UTC authority to regulate project need is construed as the legislatively adopted
6 standard for adequate need.
7 It is acknowledged that the inclusion of project need analysis in the SEPA environmental
8 documents for the project is pertinent to the authority of a hearing-examiner to assess project need.
9 RCW 43.21 C.060 authorizes a decision maker to condition a project based upon environmental impacts
10 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
11
that encourage the availability of efficient electrical infrastructure. RMC 4-8-070M2b adopts the City
12 of Renton Comprehensive Plan as a SEPA policy.
• 13 Although there is the potential for mitigation under SEPA even if project need is not pertinent
14 to permitting criteria, additional analysis and associated mitigation is not authorized in this case either
15 because(1)the"need' impacts are not environmental impacts subject to environmental review; and (2)
16 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
17
first be understood what impact is under consideration. As previously mentioned, the environmental
18 impacts of the proposal have been exhaustively analyzed in three separate EISs and a lengthy hearing
19 examiner decision. The only impact that hasn't been addressed that could conceivably result from
20 unnecessary utility infrastructure would be the rate impact to utility consumers. As this is purely an
21 economic impact, it is dubious that such an impact would qualify as an environmental impact subject
22 to environmental review. The operative question, therefore, is whether impacts to utility rates qualify
as environmental impacts subject to SEPA review.
23
In answer to this operative question, the starting point is WAC 197-11-444, which lists the
24 elements of the environment subject to SEPA review. WAC 197-11-444(2)(d) includes "public
25 services and utilities,"which further includes"(oJther government services or utilities." It is important
26 to recognize that utilities under both descriptions is qualified by either "public" or "governmental."
CONDITIONAL USE - 17
1 This qualification is important because PSE is a private company and it is entirely plausible that the
2 drafters of WAC 197-11-444 found it reasonable to assess the business plans of public entities but not
3 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
4
courts have not shown a willingness to extend SEPA review to purely economic impacts. See Indian
5
Trail Prop. Ass'n v. Spokane, 77 Wn. App. 430, 444 (1994)( "We agree that if the probable effect of
6 [economic] competition is such that the "built environment" is affected, review is called for by WAC
7 197-11-444(2). However, economic competition, in and of itself, is not an element of the environment
8 under WAC 197-11-448(3)")(citations omitted).
9 Ultimately, whether or not project need is validly subject to SEPA review and mitigation need
10 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
it
issues. CENSE takes issue with this position because the UTC can only control rates after the fact, by
12 denying rate increases for completed projects that the UTC finds unnecessary. See WAC 480-100-
13 238(6). Although not ideal, UTC's after-the-fact ability to deny rate increases to fund projects it finds
14 unnecessary serves as powerful incentive for utilities such as PSE to work with the public and the UTC
15 to ensure that it efficiently uses rate revenues in an efficient and effective manner. The fact that the
16 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.
17
Certainly, a city does not regulate the business plans of major retail stores under the guise of land use
18 review to ensure that the retailer provides the lowest prices possible to city consumers. The public
19 interest in regulating private utilities, of course, is higher and more justifiable due to the monopoly
20 enjoyed by the utility and the fundamental need of the service provided. The UTC's regulatory process
21 for PSE rates represents a balancing of avoiding undue government encroachment into private business
22 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
23
review.
24
5. Olympic Pipeline Actions Effectively Mitigated Through Conditions Requiring
25 Coordination and Disclosure. In the final portion of its reconsideration motion, CENSE points out that
26 the City of Renton has no authority to regulate Olympic Pipeline. CENSE posits that the record should
CONDITIONAL USE - 18
•
1 be re-opened to see if Olympic Pipeline has conducted AC interference studies it stated it would
2 conduct in 2017 to assess the need for additional AC interference protection measures necessitated by
3 the proposal.
CENSE is correct that the examiner has no authority to regulate the actions of Olympic Pipeline.
4
PSE can implement most of the mitigation measures necessary to ensure that it's proposal doesn't
5
jeopardize pipeline safety. Specifically, the installation of shield wires and the proper design and
6 configuration of transmission poles can reduce the adverse impacts of electrical interference down to
7 safe levels. However, there are measures that Olympic Pipeline can take to further minimize risk,
8 including installation of grounding systems. Coordination between Olympic and PSE is particularly
9 important during the construction phase of the proposal, to ensure that construction activities don't
10 damage the pipeline.
Although the examiner cannot compel Olympic Pipeline to do anything, the coordination and
11
disclosure requirements of the conditions of approval will likely provide as much incentive for Olympic
12 Pipeline to act as any direct authority to impose conditions. This is because if Olympic is put on notice
13 of a hazardous situation and fails to act, it's resulting potential liability and/or that of PSE would be
14 substantial, As repeatedly asserted by PSE and noted in the EISs prepared for the proposal, PSE and
15 Olympic Pipeline have a long history of working cooperatively within the PSE transmission corridor.
16 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
17
could increase pipeline safety risk.
18 In order to enhance the function and utility of the disclosures required by the conditions of
19 approval, the second paragraph of Condition No. 7 of the Pipeline Safety section of Ex. 2 is replaced
20 with the following:
21
22 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
23 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
24 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
25 planning manager shall waive this requirement to the extent necessary to protect
26
CONDITIONAL USE- 19
1 national security or legally protected proprietaiy business information.
2
DECISION
3
4 The Final Decision of the above-captioned matter is supplemented with the analysis in this
5 Decision Upon Reconsideration. In addition,corrections and revisions to the Final Decision resulting
• 6 from this Decision Upon Reconsideration are listed below:
7
8 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
9
of Bellevue.
10
11 2. Condition No. 10 is replaced with the following:
12
13 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
14 - 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
15 as otherwise approved by the Current Planning Project Manager, but at no point will
16 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
17 completion of the artwork if it is not installed prior to energizing. The security amount
shall include the estimated costs of enforcement.
18
19 3. The second full paragraph of page 14 of the Final Decision is replaced with the following:
20
From the comments made by the EIS team as outlined above, it is clear that the
21 transmission poles have been designed to withstand earthquake events and that they will
22 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
23 statements whether the impacts of landslides to the pipeline could be exacerbated by the
proximity of the proposed transmission line to the pipeline.
24
25 4. Page 33 of the Final Decision incorrectly identifies the location of the Richards Creek
26 substation as Renton. The correct location is Bellevue and the Final Decision is corrected
CONDITIONAL USE - 20
1 accordingly.
2
3 5. Condition No. 11 is replaced with the following:
4
PSE shall operate both transmission lines at equivalent voltage ratings, except as
5 necessary to respond to emergency situations. PSE shall submit an annual report to the
6 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
7 extent necessary to protect (1) national security; or (2) legally protected proprietary
information. The current planning manager may waive the requirement for annual
8 reporting entirely any time after five years if the report is no longer in the public interest.
9
6. The first paragraph of page 3-12 (beginning with "If requested...") of the Pipeline Safety
10 section of Ex. 2, Environmental Consistency Analysis, is replaced with the following:
11
12 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
13 address safety-related issues. The report shall verb that PSE has notified Olympic of all
14 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
15 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
16 protected proprietary business information.
17
DATED this 24th day of March 2020.
18
19
20 City of Renton Hearing Examiner
21
Appeal Right and Valuation Notices
22
RMC 4-8-080(G) classifies the application(s) subject to this decision as Type III application(s)
23 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
24 issuance of the decision as outlined in RMC 4-8-110C2.
25 Affected property owners may request a change in valuation for property tax purposes
26
CONDITIONAL USE -21
1 notwithstanding any program of revaluation.
2 Reconsideration
3
As this application has already been subject to reconsideration review, no further
4 reconsideration requests are allowed. See RMC 4-8-100I52
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10
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13
14
15
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25 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
26 the Decision Upon Reconsideration. Consequently, any new reconsideration requests by any other party of record
would be rejected as untimely.
CONDITIONAL USE - 22