BEFORE THE PUBLIC UTILITIES COMMISSION OF THE
STATE OF CALIFORNIA
Mr. John S. Davis
)
)
Complainant, )
)
vs.
)
)
Southern California Edison Company (U338-E)
)
)
Defendant. )
C.12-02-021
(Filed February 29, 2012)
SOUTHERN CALIFORNIA EDISON COMPANY’S (U 338-E)
ANSWER TO COMPLAINT
JANET S. COMBS
WILLIAM SELDEEN
Attorneys for
SOUTHERN CALIFORNIA EDISON COMPANY
2244 Walnut Grove Avenue
Post Office Box 800
Rosemead, California 91770
Telephone:
(626) 302-6093
Facsimile:
(626) 302-6693
E-mail:
[email protected]
Dated: April 13, 2012
LIMS-314-3956
SOUTHERN CALIFORNIA EDISON COMPANY'S (U 338-E) ANSWER TO COMPLAINT
TABLE OF CONTENTS
Section
Title
Page
I. INTRODUCTION ....................................................................................................................................1 II. SUMMARY ............................................................................................................................................1 A. B. Relevant Factual Background ..............................................................................................3 1. Installation of the First Low-Noise Transformer .....................................................3 2. Testing Confirms The Low-Noise Transformer Is Functioning
Properly ....................................................................................................................4 3. Mr. Davis Files His First Formal (Expedited) Complaint .......................................5 4. SCE Fully Complies With The Commission’s Order ..............................................5 5. The Sixth Sound Survey With Commission Inspectors...........................................7 The Transformer Noise Is Not A Legal Nuisance ...............................................................7 1. Legal Standard .........................................................................................................7 2. Mr. Davis’s Complaint Does Not Meet The Level For Legal
Nuisance ...................................................................................................................8 C. The Factual Basis For Mr. Davis’s Complaint Is Unsound .................................................9 D. Mr. Davis Should Be Responsible For Costs Of Further Mitigation.................................10 III. ANSWER TO COMPLAINT ..............................................................................................................11 IV. AFFIRMATIVE DEFENSES..............................................................................................................15 EXHIBIT A - TRANSFORMER INQUIRY REPORT EXHIBIT B - LETTER FROM J. & N. DAVIS TO JUDGE BARNETT – FEB. 28, 2011 EXHIBIT C - ABB CERTIFIED TEST REPORT EXHIBIT D - ABB SOUND LEVEL TEST RESULTS EXHIBIT E - PHOTOGRAPH OF TRANSFORMER SERIAL NUMBER EXHIBIT F - TRANSFORMER NOISE EVALUATION REPORT - JUNE 21, 2011 EXHIBIT G - NOISE MEASUREMENTS REPORT – NOV. 9, 2011 -i-
SOUTHERN CALIFORNIA EDISON COMPANY'S (U 338-E) ANSWER TO COMPLAINT
TABLE OF CONTENTS (CONTINUED)
Section
Title
Page
EXHIBIT H - NOISE STANDARDS TABLES FROM CERRITOS GENERAL PLAN -ii-
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE
STATE OF CALIFORNIA
Mr. John S. Davis
)
)
Complainant, )
)
vs.
)
)
Southern California Edison Company (U338-E)
)
)
Defendant. )
C.12-02-021
(Filed February 29, 2012)
SOUTHERN CALIFORNIA EDISON COMPANY’S (U 338-E)
ANSWER TO COMPLAINT
I.
INTRODUCTION
Pursuant to Rule 4.4 of the California Public Utilities Commission’s (“Commission’s”)
Rules of Practice and Procedure, Southern California Edison Company (“SCE”) respectfully
submits this Answer to the Complaint of John S. Davis (“Complainant” or “Mr. Davis”), whose
service address is 13336 Rusty Fig Circle, Cerritos, California 90703.
II.
SUMMARY
Mr. Davis requests that the Commission revisit a decision it made in his favor and this
time order SCE to move a transformer from his backyard to the municipal parkway after SCE
installed the transformer in his backyard pursuant to the Commission’s decision. Mr. Davis
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contends that in 2009, SCE replaced a broken 50 kVA transformer with a louder 75 kVA
transformer. This allegation is false and Mr. Davis’s request for extraordinary relief should be
denied.
The transformer has been 75 kVA since before Mr. Davis bought his property over 35
years ago. Indeed, the transformer that Mr. Davis complains of is a premium, low-noise
transformer that Mr. Davis himself requested in an expedited Complaint to the Commission
(D.10-02-024). As a result of that Complaint, the Commission issued an order that one of two
brands of low-noise, 75 kVA transformers be installed at no cost to Mr. Davis. SCE fully
complied with that order, as verified by both SCE’s submissions to the Commission, as well as
the observations of two Commission inspectors.
The transformer in question emits sound under 50 A-weighted decibels1 (dB(A)), even
when measured from as close as one foot from the device. At 15 feet, the level drops to under 40
dB(A) when adjusted for ambient conditions. This low noise level has been confirmed by
multiple sound surveys and after installing two premium, low-noise transformers, all at
ratepayers’ expense. While Mr. Davis may be unsatisfied by SCE’s efforts, the objective test
measurements demonstrate the transformer is operating within the specifications for a premium,
low-noise transformer and well below the City of Cerritos Noise Standards for residential areas.
Not only is Mr. Davis’s request unnecessary in light of the low sound levels, but it would
also be extraordinarily costly for SCE’s ratepayers. In a best case scenario, SCE would have to
obtain new easements and permits, construct new facilities, and purchase new equipment to
move the transformer to the municipal parkway. None of these expenses would enhance SCE’s
ability to deliver electricity to its customers. And these expenses would be on top of expenses
ratepayers have already incurred by SCE’s implementation of D.10-02-024.
1
Environmental noise typically is measured in A-weighted decibels (dB(A)). A dB(A) is a decibel corrected for
the variation in frequency response of the typical human ear at commonly encountered noise levels. City of St.
Helna v. Napa Valley Wine Train, Inc., 66 CPUC 2d 602, 1996 Cal. PUC LEXIS 776, *49 n.1 (1996).
-2-
But there is more at stake in this case than the cost it would take to satisfy Mr. Davis.
Moving a working transformer any time a customer complains that the transformer sounds too
loud – without objective evidence to corroborate the customer’s subjective opinion – would open
the flood gates to similar complaints. SCE frequently replaces backyard transformers as old
equipment ages out or breaks, and there is no way to guarantee new transformers sound the
same. Any property owner who wanted to force SCE to move a transformer out of her/his
backyard and onto public streets could simply complain that the new transformer is louder.
Rather, the Commission should look at the objective indications of whether a transformer is too
loud. California courts have developed an objective test for nuisance claims after years of
experience handling such cases. Such a standard should be adopted by the Commission in this
case, to ensure that no customer suffers from an unreasonably loud transformer, while avoiding
exposing ratepayers to expenses due to particularly sensitive complainants.
Both the Commission and SCE have gone to great lengths to ensure that Mr. Davis has
the quietest transformer possible. Having installed a low-noise transformer of Mr. Davis’s
choosing and at the Commission’s direction, SCE should not now be required to move that
transformer to another location at great expense. For these reasons, the Commission has already
denied Mr. Davis’s informal complaint and request to move the transformer. The Commission
should likewise deny his formal Complaint.
A.
Relevant Factual Background
1.
Installation of the First Low-Noise Transformer
Since the day Mr. Davis bought his property, there has been a transformer in his
backyard. The original transformer was a 75 kVA General Electric (GE) padmount transformer,
Serial No. L445224T73AA.2 In March 2009, Mr. Davis notified SCE that the GE Transformer
2
Exhibit A (Transformer Inquiry Report) (indicating the transformer at 13336 Rusty Fig, Serial No.
L445224T73AA was 75 kVA).
-3-
was leaking oil. Because GE no longer makes that model of transformer, SCE replaced it with a
standard 75 kVA Howard Industries transformer (Serial No. 1455601009). Despite Mr. Davis’s
allegations, SCE did not increase the transformer capacity.
Mr. Davis soon complained to SCE about the sound from this standard
transformer. The next day, SCE Distribution Apparatus Engineering visited Mr. Davis’s house
and conducted acoustical testing of the transformer. Even though the sound levels were within
specifications for this model of transformer under normal operating conditions (measuring 49.4
dB(A) at one foot from the transformer), Engineering recommended that it be replaced with a
specially designed, low-noise transformer. Based on this recommendation, and prior to any
involvement of the Commission, on June 24, 2009, SCE installed a premium Howard Industries
75 kVA Super Quiet Mini Padmount transformer (Serial No. 1846841809) at no cost to Mr.
Davis.
2.
Testing Confirms The Low-Noise Transformer Is Functioning Properly
Mr. Davis was still unhappy with the sound level of the transformer and filed an
informal complaint with the Commission on June 30, 2009. Responding to Mr. Davis’s
complaint, SCE conducted further investigation. On July 7, 2009, SCE Field Engineer Nicholas
Duong, P.E., performed the second acoustical survey at Mr. Davis’s property. This test indicated
that the sound levels were 45 dB(A) at one foot from the transformer. On July 30, 2009, SCE
Field Engineering performed a third survey, which was performed between 9:30pm and 10:30pm
at Mr. Davis’s request. Once again, the sound level at the transformer measured 45 dB(A), with
sound levels slightly lower at other areas of the property. According to three Cerritos Police
Department Officers who escorted the SCE engineering team, noise from the transformer when
standing at distances varying from four feet to seven feet was undetectable. Nonetheless, SCE
hired Veneklasen & Associates, an acoustics consulting firm specializing in environmental noise,
to perform a fourth acoustical survey. The independent surveyors measured the sound level
inside Mr. Davis’s master bedroom to be 23 dB(A) (daytime) and 27 dB(A) (evening).
-4-
Veneklasen & Associates concluded that the portion of sound that was attributable to the
transformer was below the threshold of audibility for persons with normal hearing.
3.
Mr. Davis Files His First Formal (Expedited) Complaint
Despite the efforts SCE made and the repeated low-sound measurements, Mr.
Davis filed a formal expedited complaint with the Commission. Like the current Complaint, Mr.
Davis alleged that SCE installed a replacement transformer that caused unacceptable noise
levels.3 Unlike the current complaint, however, Mr. Davis did not claim SCE had increased the
kVA rating of the transformer, nor did he dispute SCE’s assertions that the original transformer
was 75 kVA. Had he done so, SCE could have introduced the supporting documentation at that
time. Instead, Mr. Davis accused SCE of installing a low quality, noisy transformer. Second,
Mr. Davis specifically demanded that SCE replace the Howard Industries transformer with a low
noise transformer made by either “ABB” or “Cooper Industries.”4 SCE objected to such action
in light of the premium, low-noise transformer that it had already installed and the low sound
levels being emitted. Moreover, SCE did not have in its inventory either transformer model that
Mr. Davis sought to remedy his grievance. Based on Mr. Davis’s specific request, the
Commission ruled in favor of Mr. Davis:
Southern California Edison Company shall at no cost to Mr. Davis,
replace the Howard Industries pad-mounted transformer located in
his backyard at 13336 Rusty Fig Circle, Cerritos, California with a
pad-mounted transformer, either an ABB or Cooper Industries
low noise transformer – 75kVA/120/240/12kV.5
4.
SCE Fully Complies With The Commission’s Order
On February 8, 2011, SCE replaced the Howard Industries Super Quiet
transformer with a premium low-noise, pad-mounted transformer ABB – 75kVA/120/240/12kV
3
4
5
Case 10-02-024, Expedited Complaint Procedure Complaint, §(F).
Id., §(G)(c).
Id. at 5 (emphasis added).
-5-
(Serial No. JC548990001). However, Mr. Davis was still unsatisfied with the sound emitted
from this second low-noise transformer. In a series of correspondence with the Commission,
Mr. Davis asserted that (i) SCE did not comply with the September 23, 2010 order; (ii) that the
replacement transformer generated 63 decibels according to his measurements and “violates the
Cerritos Municipal Code (CMC) which limits this type of constant noise to 50dB;”6 (iii) that
SCE “never disclosed” that it was feasible to convert backyard transformers to buried
transformers on municipal parkways; and (iv) that SCE upgraded the transformer from 50 kVA
to 75 kVA while telling the Commission and Mr. Davis that the original transformer was 75
kVA.
Given the seriousness of Mr. Davis’s allegations, SCE conducted a thorough
investigation. First, SCE reviewed the purchase order documents for this unit, the
manufacturer’s “Sound Level Test Results,” and the “Certified Test Report” for the unit at Mr.
Davis’s property to confirm that SCE specially ordered a low-noise transformer.7 Next, SCE
sent a supervisor to Mr. Davis’s residence to visually confirm that the transformer on Mr.
Davis’s property was the specially ordered transformer.8 Confirming the right transformer was
installed, SCE proceeded to determine that it was properly functioning. On June 15, 2011,
SCE’s Senior Environmental Noise Specialist, Cornelis Overweg, P.E., LEED AP, INCE Bd.
Cert., conducted another acoustical survey on Mr. Davis’s property – the fifth overall. Mr.
6
7
8
Specifically, Mr. Davis contended that he took sound level readings that revealed the “transformer consistently
generates 63 (dB) at the unit, 53 (dB) at a distance of 50ft. as measured by a decibel meter.” Feb. 28, 2011
Letter from J. & N. Davis to Judge Barnett. However, when Mr. Cornelis Overweg went to the Davis residence
to conduct noise readings, he inspected Mr. Davis’s decibel meter. Mr. Davis’s device was set for the wrong
rating scale, which resulted in an inflated noise reading. Specifically, Mr. Davis’s meter was set for “Cweighting” rather than an “A-weighting.” C-weighted levels generate a higher number than A-weighted noise
levels if there are low frequency components in the sound spectrum, as is the case with transformers. Based on
his erroneous sound readings, Mr. Davis insisted that the transformer noise level violated the Cerritos noise law.
Like SCE’s sound measurements, Cerritos Municipal Code section 22.80.480 expressly measures sound levels
in dB(A). See Exhibit B (Feb. 28, 2011 Letter from J. & N. Davis to Judge Barnett). Tellingly, Mr. Davis no
longer alleges that the transformer emits 63 dB of sound, and now asserts that the sound of the transformer is
“unacceptable regardless of technical measurements.” Compl., §(G)(4).
Exhibit C (ABB Certified Test Report); Exhibit D (ABB Sound Level Test Results).
Exhibit E (Photograph of Transformer Serial Number).
-6-
Overweg determined that after adjustment for ambient noise, the transformer generated 47.6
dB(A) of sound one foot from the transformer, and between 39.7 and 37.3 dB(A) at various
locations 15 feet from the transformer.9 Based on the evidence SCE presented, Mr. Davis’s
informal Complaint was denied.
5.
The Sixth Sound Survey With Commission Inspectors
Even after the Commission denied Mr. Davis’s informal complaint, sound
readings were taken once more. On November 9, 2011, SCE returned to the Davis property, this
time with two Commission inspectors accompanying SCE, including Mahmoud (Steve) Intably,
to repeat the tests of June 15, 2011. Once again, the results were consistent with previous
findings: 48.8 dB(A) monitored (i.e., unadjusted for ambient sound levels) one foot from the
transformer and 42.1-43.0 dB(A) at 15 feet from the transformer.10
In all, SCE took six sound measurements at Mr. Davis’s property. The surveys
covered a variety of locations on the Davis property, measured sound levels at distances as close
as one foot from the transformer were taken at various times of day and night, taken both inside
and outside the Davis home, and were conducted in the presence of police officers, Commission
inspectors and Mr. Davis himself. In every test, the sound levels were well below 50 dB(A).
B.
The Transformer Noise Is Not A Legal Nuisance
1.
Legal Standard
The law governing a noise nuisance was established in the California Supreme
Court case of San Diego Gas & Elec. Co. v. Superior Court, 13 Cal. 4th 893, 937-38 (1996). In
that case, plaintiffs sued a utility alleging that a power line near their house created a nuisance.
The court highlighted that not every interference with a person’s enjoyment of her/his property
9
10
Exhibit F (June 21, 2011Transformer Noise Evaluation Report).
Exhibit G (Nov. 9, 2011 Noise Measurements Report).
-7-
constitutes a legal nuisance. Under the standard set down by the court, a legal nuisance exists
only when the alleged conduct is both (i) a substantial and (ii) an unreasonable interference with
the use and enjoyment of the property.
This standard requires a plaintiff to demonstrate that conduct causes both
“substantial interference” and “unreasonable interference” as the court defined those terms. To
meet the requirement that certain conduct is a “substantial interference,” a plaintiff must show
that there is an invasion of the plaintiff’s interest that is “definitely offensive, seriously annoying
or intolerable.” Id. at 938. Importantly, the court emphasized that the degree of harm must be
judged by an objective standard, not by the plaintiff himself. “If normal persons in that locality
would not be substantially annoyed or disturbed by the situation, then the invasion is not a
significant one, even though the idiosyncrasies of the particular plaintiff may make it
unendurable to him.” Id. (emphasis added).
Second, the plaintiff must also prove that the interference is unreasonable. The
“question is not whether the particular plaintiff found the invasion unreasonable, but whether
reasonable persons generally, looking at the whole situation impartially and objectively, would
consider it unreasonable.” Id. The primary test for determining whether conduct is unreasonable
is “whether the gravity of the harm outweighs the social utility of the defendant’s conduct.” Id.
The public benefit of the conduct is determined by measuring the social value the law attaches to
the conduct, the suitability of the conduct to the character of the locality, and the impracticability
of avoiding the invasion. See Rest. 2d Torts § 828.
2.
Mr. Davis’s Complaint Does Not Meet The Level For Legal Nuisance
Under this standard, Mr. Davis’s complaint does not allege facts that rise to the
level of a legal nuisance. First, Mr. Davis has not – and cannot – offer evidence that the sound
from the low-noise transformer is objectively harmful. Rather, the objective evidence, i.e.,
repeated sound surveys, has demonstrated that the noise levels are under 50 dB(A) and therefore
below community standards. As the Cerritos General Plan indicates, 50 dB(A) is considered
-8-
“quiet” and is the maximum sound level for a residential area.11 In short, the sound emitted from
the transformer does not rise to the level of a “substantial interference” under the law.
In addition, even if the Commission found there was some interference, such
interference would not be “unreasonable” in light of the important social utility of continuing to
operate the transformer at its current the location. Providing electricity to Mr. Davis and his
neighbors is a highly important public good. For that reason, SCE obtained valid easements on
Mr. Davis’s property and on thousands of other properties in Southern California. Without full
use of those easements, SCE could not continue to serve its customers unless it undertook the
onerous and expensive task of relocating the transformer to the municipal parkway. Such
relocation might not even be possible. Before SCE could move the transformer, it would first
need to secure necessary permits from the city for the excavation in the municipal parkway. If
the municipality has issues with the proposed location of the equipment, it may object to it being
placed in the municipal parkway. Likewise, depending on the amount of space available, it
might not be possible to construct the needed facilities. In addition, SCE could not move the
transformer without obtaining additional easements from disinterested third-party property
owners. There is also a possibility SCE would need to purchase a new transformer to comply
with requirements of the new location. Moving the transformer would therefore cause SCE to
expend considerable resources and ratepayer funds in this case, and could set an unreasonable
precedent for other property owners to attempt to move transformers off their properties.
C.
The Factual Basis For Mr. Davis’s Complaint Is Unsound
Mr. Davis’s theory for the cause of his problem is also flawed. Mr. Davis contends that
sound levels have increased because SCE increased the power capacity of the transformer from
50 kVA to 75 kVA. Assuming SCE had increased the transformer power capacity – which it did
not – such a change would be expected to result in a quieter sound, not a louder sound. Mr.
11
Exhibit H (Noise Standards Tables from Cerritos General Plan).
-9-
Davis’s argument is based on a simple, but incorrect, assumption that a bigger transformer
makes a louder sound. In fact, a smaller transformer must work harder to handle the same
electrical load, and would therefore tend to be louder.
Mr. Davis requests as an alternative form of relief that the transformer be reduced from
75 kVA to 50 kVA. If such a request were granted, it would likely have the effect of making the
transformer louder. Moreover, it may not even be possible to decrease the sound in this way.
Because, the transformer has always been 75 kVA, by reducing it to 50 kVA, it may be
insufficient to meet the existing electricity demands of Mr. Davis’s neighbors, much less future
loads. It is possible that the load would risk burning out the transformer, especially as his
neighbors’ usage increases. Finally, there is the substantial cost involved in replacing this
transformer for a fourth time.
D.
Mr. Davis Should Be Responsible For Costs Of Further Mitigation
Given (i) that the Commission has already granted Mr. Davis relief to remedy his
complaint, (ii) that SCE fully complied with that decision, and (iii) that the low-noise
transformer is functioning properly and below residential sound limits, requiring SCE to move
the transformer to the street is unwarranted and unduly burdensome. If Mr. Davis insists on
moving the transformer to the street or taking other mitigation measures, SCE should do so at
Mr. Davis’s expense.12
12
Tariff Rule 16.F.2.b (“Applicant Convenience. Any relocation or rearrangement of SCE’s existing Service
Facilities at the request of Applicant…shall be performed in accordance with Section D above except that
Applicant shall pay SCE its total estimated costs.”).
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III.
ANSWER TO COMPLAINT
SCE responds to the specific allegations of the Complaint as follows:13
SCE incorporates by reference the affirmative statements made in SCE’s Summary
above.
Section (F) “Complaint Details”
1.
SCE denies that “[in] April, 2009 SCE increased the power capacity of [Mr.
Davis’s] backyard transformer from 50 kVA to 75 kVA.” The transformer that was removed
from Mr. Davis’s backyard was a 75 kVA GE transformer. It was replaced with a transformer of
the same power rating.
2.
SCE denies that “SCE increased the nuisance noise 10 decibels from 40dBA to
50dBA” on the basis that SCE lacks sufficient information to form a belief as to the truth of the
statement regarding the decibel level of the original transformer. SCE denies that it increased the
sound level to 50 dB(A). SCE has conducted five acoustical surveys of replacement
transformers at Mr. Davis’s property, including a November 9, 2011 survey attended by
Commission inspectors. In each case, the sound level one foot from the transformer was less
than 50 dB(A), with sound levels nearer to Mr. Davis’s house in the upper 30’s to low 40’s
dB(A).
3.
SCE denies that “[the] original 1976 50 kVA transformer was audible only within
5 feet” on the basis that SCE lacks sufficient information to form a belief as to the truth of the
distance at which the sound from the transformer could be heard. SCE denies that the original
transformer was 50 kVA.
13
For the Commission’s ease of reference and to facilitate its understanding of SCE’s Answer, SCE has numbered
each allegation in Mr. Davis’s complaint sequentially.
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4.
SCE denies that “SCE violated 33 years of precedence.” The transformer at this
location has always been 75 kVA. Moreover, SCE has traditionally installed the equipment
necessary to meet the demands of its customers.
5.
SCE denies that “[Mr. Davis’s] backyard was designed for no more than 50
kVA.” The transformer at Mr. Davis’s property has always been 75 kVA. There are many 75
kVA transformers installed on parcels of similar size and design in the nearby neighborhood.
6.
SCE admits that “[the] transformer is 13 feet from [Mr. Davis’s] master
bedroom.”
7.
SCE denies that “[the] 2009 75 kVA unit is an unacceptable nuisance that has
eliminated the enjoyment of [Mr. Davis’s] property.” This allegation is a legal conclusion for the
Commission to determine.
8.
SCE denies that “[the] noise has lowered the market value of [Mr. Davis’s]
property as the nuisance must be disclosed to buyers” on the basis that SCE lacks sufficient
information to form a belief as to the truth of the statement.
9.
SCE denies that “efforts by SCE to reduce the noise disturbance have failed.”
SCE has successfully reduced the sound emitted by a standard transformer to the sound emitted
by a premium, low-noise transformer. Acoustic surveys consistently demonstrated that the
sound level emitted from the transformers were within the specifications for these devices and
have consistently measured below 50 dB(A).
10.
SCE denies that “[the] easement granted to SCE does not allow any transformer
noise.” SCE has a valid easement to operate a transformer on Mr. Davis’s property, and
therefore, the incidental sound of its operation is also permitted. Even if SCE had no easement,
California law generally does not recognize that sound waves are a basis for trespass. Wilson v.
Interlake Steel Co., 32 Cal. 3d 229, 232 (1982) (“Noise alone, without [physical] damage to the
property, will not support a tort action for trespass”).
11.
SCE denies that “[the] noise level was set by its acceptability to developers and
home buyers,” on the basis that SCE lacks sufficient information to form a belief as to the truth
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of the statement. Home buyers purchase properties at market-determined prices, which take into
account existing electrical equipment installed on the property, easements on the property and
the right of SCE to operate electrical equipment on those easements.
12.
SCE denies that “[an] unacceptable noise level would have been rejected by
developers and home buyers.” Home buyers purchase properties at market-determined prices,
which take into account existing electrical equipment installed on the property, easements on the
property and the right of SCE to operate electrical equipment on those easements.
Section (G)(4) “Issues To Be Considered”
13.
SCE denies that “[the] CPUC must compel SCE to move [Mr. Davis’s] backyard
transformer to the front municipal parkway as a subsurface transformer.” This allegation is a
legal conclusion for the Commission to determine.
14.
SCE denies that “SCE should have moved [Mr. Davis’s] transformer to the
parkway when it increased the unit’s power capacity and noise nuisance.” SCE did not increase
the power capacity of the transformer. The transformers at Mr. Davis’s property have always
been 75 kVA. Such transformers, particularly low-noise models, produce sound levels below 50
dB(A) and can be optimally located in backyards.
15.
SCE denies that “[the] noise nuisance is unacceptable to residents regardless of
technical measurements,” on the basis that SCE lacks sufficient information to form a belief as to
the truth of the unidentified residents’ subjective impressions. Whether a noise rises to the level
of a nuisance is based on an objective standard and does not depend on an individual’s subjective
impression.
16.
SCE agrees that “[no] person enjoys loud transformers in their living space[.]”
SCE denies that “after 1976, SCE stopped installing them for that reason.” SCE must replace
older transformers as they require maintenance or fail. SCE is limited by the selection of
transformers that are available from manufacturers such as Howard Industries and ABB.
17.
SCE denies that “[the] second phase of [Mr. Davis’s] tract was built with
subsurface transformers in the front municipal parkways at the street and post-1976 tracts
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throughout Cerritos have subsurface parkway transformers,” on the basis that SCE lacks
sufficient information to form a belief as to the truth of the statement.
18.
SCE denies that “[in] mid-2011, SCE converted the entire neighborhood at 19700
Thornlake, Cerritos, moving the backyard transformers to the front parkway as subsurface units
on eight streets,” on the basis that SCE lacks sufficient information to form a belief as to the
truth of the statement.
19.
SCE denies that “[an] alternative would be for SCE to install a high quality, low-
noise 50 kVA transformer.” The transformer on Mr. Davis’s property has always been 75 kVA.
A 50 kVA transformer might not be able to power the 20 homes that depend on the transformer,
or could risk blow out. To maintain power to those customers, a second transformer might be
needed. However, not only would this double the costs to ratepayers, but it may not be possible.
SCE would need new easements on the property of Mr. Davis’s neighbors, rights his neighbors
would not likely be willing to sell. A 50 kVA transformer would not be an alternative for Mr.
Davis for another reason – it would likely be louder than a 75 kVA transformer.
Section (H) “Order Request”
20.
Mr. Davis’s allegations in section (H) are substantively identical to the allegations
in section (G)(4). SCE incorporates its responses to section (H) above to section (G)(4) by
reference.
Additional Allegations
21.
To the extent that the Formal Complaint form itself, or any other Attachment to
the Formal Complaint, contains an allegation that requires an answer, any such allegation is
denied.
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IV.
AFFIRMATIVE DEFENSES
FIRST, SEPARATE AND AFFIRMATIVE DEFENSE
Affirmative Allegations
SCE re-alleges and incorporates herein each and every one of its affirmative allegations
set forth above.
SECOND, SEPARATE AND AFFIRMATIVE DEFENSE
Failure to State a Cause of Action
Mr. Davis fails to state facts sufficient to constitute a cause of action for relief against
SCE.
THIRD, SEPARATE AND AFFIRMATIVE DEFENSE
Compliance with all Applicable Tariffs, Rules, Regulations and Laws
Mr. Davis is barred from recovery because SCE complied with all applicable rules, laws,
regulations, and tariffs, including the nuisance laws of the State of California, as articulated by
the California Supreme Court.
FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE
Claim and Issue Preclusion
Mr. Davis raises the same issues in this complaint (namely, noise disturbance from the
transformer in his backyard) as was decided and remedied in Case No. 10-02-024. Mr. Davis’s
complaint is an improper collateral attack on that decision and is barred by the doctrine(s) of res
judacata, collateral estoppel, and/or California Public Utilities Code section 1709 (“In all
collateral actions or proceedings, the orders and decisions of the commission which have become
final shall be conclusive.”).
- 15 -
FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE
Improper Petition For Modification
Mr. Davis’s Complaint is an improper petition for modification of the Commission’s
decision in Case No. 10-02-024. A petition for modification requires a petitioner to file his
petition within one year of the effective date or explain why the petition could not have been
presented within one year of the effective date of the decision. Rules of Practice and Procedure
16.4(c). Any factual allegations must be supported with specific citations to the record in the
proceeding or to matters that may be officially noticed. Allegations of new or changed facts
must be supported by declaration or affidavit. Rules of Practice and Procedure 16.4(b). Mr.
Davis failed to comply with these requirements.
SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE
Proximate Intervening Cause
If Mr. Davis suffered any injury as alleged in the Complaint, which SCE specifically
disputes and denies, the intervening and superseding actions, and/or inactions of Mr. Davis
himself or some other person or entity other than SCE proximately caused such injury in whole
or in part.
SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE
Complainant’s Own Conduct
Mr. Davis requested the Commission to order SCE to install an ABB or Cooper
Industries low noise transformer at SCE’s expense. SCE installed an ABB low noise transformer
pursuant to the Commission’s September 27, 2010 Order. Mr. Davis cannot now complain
based on actions that he demanded.
EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE
Privilege
SCE installed the ABB 75 kVA low noise transformer pursuant to the Commission’s
September 27, 2010 Order authorizing and mandating installation of said equipment. SCE’s
actions within the scope of that Order are privileged and cannot be the basis for a complaint.
- 16 -
NINTH, SEPARATE AND AFFIRMATIVE DEFENSE
Failure to Mitigate Damages
Mr. Davis has failed to take measures to mitigate his injury, if any.
TENTH, SEPARATE AND AFFIRMATIVE DEFENSE
Contrary to Public Policy
Granting Mr. Davis his requested relief would be contrary to public policy.
ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE
Laches
Mr. Davis’s Complaint is barred by laches. Mr. Davis did not file his Complaint until
after SCE installed a premium, low-noise transformer in compliance with the Commission’s
order in Case No. 10-02-024, causing SCE and its ratepayers to incur significant expenses.
WHEREFORE, SCE prays:
1.
That the Complaint and relief requested are denied; and
2.
For such other relief as the Commission may deem just and equitable.
- 17 -
Respectfully submitted,
JANET S. COMBS
WILLIAM SELDEEN
/s/ William Seldeen
By: William Seldeen
Attorneys for
SOUTHERN CALIFORNIA EDISON COMPANY
2244 Walnut Grove Avenue
Post Office Box 800
Rosemead, California 91770
Telephone:
(626) 302-6093
Facsimile:
(626) 302-6693
E-mail:
[email protected]
April 13, 2012
- 18 -
Exhibit A Transformer Inquiry Report
Exhibit B Letter from J. & N. Davis to Judge Barnett – Feb. 28, 2011
Exhibit C ABB Certified Test Report
Exhibit D ABB Sound Level Test Results
Exhibit E Photograph of Transformer Serial Number
Exhibit F Transformer Noise Evaluation Report - June 21, 2011
EMF & Energy
Corporate Environment, Health and Safety
Operations Support Business Unit
1218 S Fifth Avenue
Monrovia, CA 91016
TRANSFORMER NOISE EVALUATION
RESIDENCE – CITY OF CERRITOS
Prepared by:
Cornelis Overweg, P.E., LEED ®AP, INCE Bd. Cert.
Senior Environmental Noise Specialist - EMF & Energy
Corporate Environment, Health & Safety/OSBU
Southern California Edison
Prepared for:
Matthew J. Johnston/Cindy Lee-Julien
Metro West / Field Engineering
Southern California Edison
June 21, 2011
Southern California Edison
TRANSFORMER NOISE EVALUATION
RESIDENCE – CITY OF CERRITOS
1.
INTRODUCTION
This report provides an evaluation of the noise level of a Southern California Edison (SCE)
pad mounted transformer located in the backyard of the residence at 13336 Rusty Fig Circle
in the City of Cerritos, California. Although SCE installed a low noise level transformer at
this location, the resident at this address continues to complain about a perceived high noise
level from this transformer.
To evaluate this noise complaint, SCE staff conducted noise level measurements near subject
transformer on June 15, 2011, and compared the measured noise levels with the City of
Cerritos Municipal Code permissible noise levels.
The findings of this evaluation are summarized in Section 2 of this report; Section 3
discusses Noise Concepts and Terminology; Section 4 presents the Noise Measurement
results; Section 5 summarizes the City of Cerritos Municipal Code noise criteria; Section 6
provides the Noise Measurements Evaluation.
2.
FINDINGS
The noise levels monitored near the transformer in the backyard of the residence at 13336
Rusty Fig Circle in the City of Cerritos, California range between 42.3 dBA at 15-feet
distance, and 48.4 dBA at 1-foot distance from the transformer. The adjusted monitored
noise levels, which take the existing ambient noise level into consideration, range between
37.3 dBA at 15-feet distance, and 47.6 dBA at 1-foot distance from the transformer.
Both the monitored noise levels of the transformer and the ambient adjusted noise levels
meet the City of Cerritos Municipal Code 50 dBA maximum noise level limit applicable to
the SCE transformer installed in the backyard of the residence at 13336 Rusty Fig Circle.
3.
NOISE CONCEPTS AND TERMINOLOGY
Noise is usually defined as unwanted sound. The definition of noise as unwanted sound
implies that it has an adverse effect on people and their environment. The adverse effects of
noise include interference with concentration, communication, and sleep. At the highest
levels, noise can induce hearing damage.
Noise is measured on a logarithmic scale of sound pressure level, in a metric known as
decibel (dB). The human ear does not respond uniformly to sounds at all frequencies, being
less sensitive to very low and high frequencies than to medium frequencies that correspond
Page 2 of 7
Southern California Edison
TRANSFORMER NOISE EVALUATION
RESIDENCE – CITY OF CERRITOS
with human speech. In response, the A-weighted noise level (or scale) has been developed.
The A-weighted scale corresponds better to people’s subjective judgment of sound levels.
This A-weighted sound level is called the “noise level” referenced in units of “dBA.”
The human perception of noise can vary greatly from person to person. In addition to the
individual sensitivity to noise, factors that influence individual responses include the
intensity, frequency, and time pattern of the noise; the amount of background noise present
prior to the intruding noise; and the nature of human activity that is exposed to the noise.
The background noise, or ambient noise level, is the all-encompassing noise level associated
with a given environment, being a composite of sounds from all sources, excluding the
alleged offensive noise, at the location and approximate time at which a comparison with the
alleged offensive noise is to be made. Community noise levels are generally considered low
when ambient levels are below 45 dBA, moderate in the 45 to 60 dBA range, and high above
60 dBA.
4.
NOISE MEASUREMENTS
Noise measurements were conducted on June 15, 2011, between 11:00 AM and 12:00 PM.
Noise sources other than the transformer observed during the site visit include distant traffic,
a pool pump, condensers (air conditioners), and birds.
The measurements were taken with a calibrated Bruel & Kjaer Model 2250 integrating sound
level meter equipped with a ½-inch pre-polarized condenser microphone with pre-amplifier.
This sound level meter meets the current American National Standards Institute standard for
a Type 1 precision sound level meter. The sound level meter was positioned at a height of 5
feet above the ground at the noise measurement locations and equipped with a wind screen.
Short duration A-weighted (dBA) noise levels were monitored at 1 foot and 15 feet distances
from the transformer. An existing ambient noise level of 40.6 dBA was also monitored
during the site visit, at a location behind the house, away from the transformer.
A summary of the A-weighted (dBA) noise level measurement results is presented in the
following table. The table also shows adjusted monitored noise levels, which take the
existing ambient noise level into consideration.
Page 3 of 7
Southern California Edison
TRANSFORMER NOISE EVALUATION
RESIDENCE – CITY OF CERRITOS
Noise Level Measurement Results
Monitored
Noise Level
(dBA)
Noise Level
Adjusted for
Ambient (dBA)
Comment
At 1 foot from transformer
48.4
47.6
See Picture 1
At 15 feet from transformer - on backyard lawn
43.2
39.7
See Picture 2
At 15 feet from transformer - between residence and block wall
42.3
37.3
See Picture 3
Monitor Location
Weather conditions: 74 F, 25% RH, sunny, < 2 mph wind
Picture 1 – Sound Level Meter at 1 foot from Transformer
Page 4 of 7
Southern California Edison
TRANSFORMER NOISE EVALUATION
RESIDENCE – CITY OF CERRITOS
Picture 2 – Sound Level Meter at 15 feet from Transformer –
on Backyard Lawn
Picture 3 – Sound Level Meter at 15 feet from Transformer –
between Residence and Block wall
Page 5 of 7
Southern California Edison
TRANSFORMER NOISE EVALUATION
RESIDENCE – CITY OF CERRITOS
5.
CITY OF CERRITOS NOISE CRITERIA
The City of Cerritos Municipal Code Chapter 22.80, Section 22.80.480 Noise states:
No noise shall be generated which causes the maximum sound level (noise level) at any point
on property lines surrounding the premises on which noise is produced to exceed the
background (ambient noise) including traffic noise by five dBA measured at the same point,
or the following limits, whichever is greater:
Zone or Development Area
Maximum Sound Levels
(dBA)
Residential or agricultural
50
Commercial
60
Industrial
70
Consequently, the City of Cerritos’ maximum noise level limit applicable to the SCE
transformer installed in the backyard of the residence at 13336 Rusty Fig Circle is 50 dBA.
Page 6 of 7
Southern California Edison
TRANSFORMER NOISE EVALUATION
RESIDENCE – CITY OF CERRITOS
6.
NOISE MEASUREMENTS EVALUATION
The data shown in Section 4 of this report indicate that the noise levels monitored near the
transformer in the backyard of the residence at 13336 Rusty Fig Circle in the City of
Cerritos, California range between 42.3 dBA at 15-feet distance, and 48.4 dBA at 1-foot
distance from the transformer. The adjusted monitored noise levels, which take the existing
ambient noise level into consideration, range between 37.3 dBA at 15-feet distance, and 47.6
dBA at 1-foot distance from the transformer.
Both the monitored noise levels of the transformer and the ambient adjusted noise levels
meet the City of Cerritos Municipal Code 50 dBA maximum noise level limit applicable to
the SCE transformer installed in the backyard of the residence at 13336 Rusty Fig Circle.
* * * * * * * * *
Report Prepared by:
Cornelis H. Overweg, P.E., LEED ®AP, INCE Bd. Cert.
Senior Environmental Noise Specialist
EMF & Energy/Corporate Environment, Health and Safety
Operations Support Business Unit
Southern California Edison
1218 S Fifth Avenue
Monrovia, CA 91016
Page 7 of 7
Exhibit G Noise Measurements Report – Nov. 9, 2011
NOISE MEASUR
M
REMEN
NTS RE
EPORT
Residential
R
Transformer – 13336 Rustty Fig Circlee, Cerritos
Noise meeasurementss were condu
ucted in the presence off two CPUC
C inspectors on Novembber 9,
2011, beetween 9:00 AM and 10:00
1
AM., near the pad mountedd transformeer located inn the
backyard
d of the resid
dence at 1333
36 Rusty Fig
g Circle in thhe City of Ceerritos, Califfornia.
The mon
nitored noisee levels rang
ged between
n 42.1 dBA
A and 43.0 ddBA at 15-ffeet distancee, and
48.8 dBA
A at 1-foot distance
d
from
m the transfo
ormer. The aambient noisse level rangged betweenn 41.8
dBA and
d 42.1 dBA during the measuremen
nts. The moonitored noisse levels aree consistent with
previous measuremen
nts conducteed on June 15, 2011 (seee Table below
w).
Nois
se Level Measureme
M
ent Results
s
Monitor
M
Locattion
Moonitored Noisee Levels
(dBA)
6/15/11
11/9/11
Ambient
A
440.6
411.8 – 42.1
At
A 1 foot from transformer
t
448.4
48.8
At
A 15 feet from transformer - on backyard laawn
443.2
43.0
At
A 15 feet from transformer - between resideence and blockk wall
442.3
42.1
The mon
nitored transsformer noise levels meet
m
the Cityy of Cerritoos Municipaal Code 50 dBA
maximum
m noise leveel limit appllicable to th
he SCE transsformer insttalled in thee backyard oof the
residencee at 13336 Rusty
R
Fig Cirrcle.
* * * * * * * * *
Report prrepared by:
Cornelis H. Overweg,, P.E., LEED
D ®AP, INCE Bd. Cert.
Senior Env
vironmental No
oise Specialist,, EMF & Energ
gy Group
Corporate Environment, Health and Saffety Departmen
nt
ness Unit
Operationss Support Busin
Southern California Edison
E
13336 Rusty Fig Circle, Cerritos
C
Pagee 1of 1
11/9/11
Exhibit H Noise Standards Tables from Cerritos General Plan
VERIFICATION
I am an officer of the applicant corporation herein, and am authorized to make this
verification on its behalf. I am informed and believe that the matters stated in SOUTHERN
CALIFORNIA EDISON COMPANY’S (U 338-E) ANSWER TO COMPLAINT are true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 13th day of April, 2012, at Rosemead, California.
/s/ Akbar Jazayeri
Akbar Jazayeri
Vice President, Regulatory Operations
SOUTHERN CALIFORNIA EDISON COMPANY
2244 Walnut Grove Avenue
Post Office Box 800
Rosemead, California 91770
CERTIFICATE OF SERVICE
I hereby certify that, pursuant to the Commission’s Rules of Practice and Procedure, I have this
day served a true copy of SOUTHERN CALIFORNIA EDISON COMPANY’S (U 338-E)
ANSWER TO COMPLAINT on all parties identified on the attached service list(s) C.12-02021. Service was effected by one or more means indicated below:

Transmitting the copies via e-mail to all parties who have provided an e-mail
address.

Placing the copies in sealed envelopes and causing such envelopes to be delivered
by hand or by overnight courier to the offices of the Commissioner(s) or other
addressee(s).
ALJ David M Gamson
505 Van Ness Avenue
San Francisco, CA 94102
Commissioner Mark J Ferron
505 Van Ness Avenue
San Francisco, CA 94102

Placing copies in properly addressed sealed envelopes and depositing such
copies in the United States mail with first-class postage prepaid to all parties for
those listed on the attached non-email list.

Directing Prographics to place the copies in properly addressed sealed envelopes
and to deposit such envelopes in the United States mail with first-class postage
prepaid to all parties.
Executed this April 13, 2012, at Rosemead, California.
/s/ Andrea Moreno_____
ANDREA MORENO
Project Analyst
SOUTHERN CALIFORNIA EDISON COMPANY
2244 Walnut Grove Avenue
Post Office Box 800
Rosemead, California 91770
List of Non-Email Recipient JOHN S. DAVIS 13336 RUSTY FIG CIRCLE CERRITOS CA 90703 C1202021 CPUC - Service Lists - C1202021
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JOHN S. DAVIS
13336 RUSTY FIG CIRCLE
CERRITOS, CA 90703
FOR: JOHN S. DAVIS
JANET S. COMBS, ESQ.
SR. ATTORNEY
SOUTHERN CALIFORNIA EDISON COMPANY
2244 WALNUT GROVE AVENUE / PO BOX 800
ROSEMEAD, CA 91770-3714
FOR: SOUTHERN CALIFORNIA EDISON COMPANY
State Service
DAVID M. GAMSON
CALIF PUBLIC UTILITIES COMMISSION
DIVISION OF ADMINISTRATIVE LAW JUDGES
ROOM 5019
505 VAN NESS AVENUE
SAN FRANCISCO, CA 94102-3214
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