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Home My WebLink AboutPZ.2015.0212.Minutes TOWN OF FOUNTAIN HILLS 4111 MINUTES OF THE REGULAR SESSION OF THE PLANNING&ZONING COMMISSION February 12,2015 Chairman Lloyd Pew opened the meeting at 6:30 p.m. ROLL CALL: The following Commissioners were present: Chairman Lloyd Pew, Vice-Chairman Michael Archambault. Commissioners: Jeremy Strohan, Stan Connick, Howie Jones, Eugene Mikolajczyk, and Denise Ham. Also in attendance were Paul Mood, Director of Development Services, Randy Harrel, Town Engineer, Robert Rodgers, Senior Planner and Zoning Administrator and Janice Baxter, Executive Assistant and Recorder of the minutes. Chairman Lloyd Pew requested participation in the Pledge of Allegiance and a moment of silent reflection. CALL TO THE PUBLIC No one wished to speak. AGENDA ITEM#1 - CONSIDERATION OF APPROVING THE MEETING MINUTES OF THE REGULAR MEETING OF THE PLANNING & ZONING COMMISSION DATED DECEMBER 11,2014. • Vice-Chairman Michael Archambault MOVED to APPROVE the meeting minutes dated Thursday, December 11,2014, as written. Commissioner Stan Connick SECONDED. Chairman Pew Aye Vice-Chairman Archambault Aye Commissioner Strohan Aye Commissioner Connick Aye Commissioner Jones Aye Commissioner Mikolajczyk Aye Commissioner Ham Aye The MOTION CARRIED UNANIMOUSLY(7-0). AGENDA ITEMS #2, 4, 6, 8 and 10 — PUBLIC HEARINGS to allow Salt River Project to install approximately 20' tall faux saguaro cactus smart router antennas within public utility easements in five (5)various Town locations. Robert Rodgers, Senior Planner gave the presentation and included a PowerPoint Presentation (Exhibit "A"). Mr. Rodgers gave one presentation that covered all five(5)locations. Mr. Rodgers explained that the application was submitted by Mariann Warn on behalf of Salt River Project requesting Special Use Permits to allow 20" tall, saguaro cactus design, and communication collector at the following locations: Page 1 of 4 1. 15042 E. Sundown Drive • 2. 15335 E. Golden Eagle Boulevard 3. 16229 E. Ironwood Drive 4. 14405 E. Mourning dove Drive 5. 12018 N. Eagle Ridge Drive Mr. Rodgers pointed out that the following representatives were in attendance and available to answer questions; Mariann H. Ward, Manager, Metering Analyst Group Customer Metering Services Project Administration Building and Robert Goodman, Project Consultant, CCS Strategic Business Development. Mr. Rodgers explained that Salt River Project was currently installing 14 Smart Routers as part of their service upgrades with Smart Meters installed in the near future in most homes. Mr. Rodgers said that his report would cover installations that were located on private property(within existing easements)and that required a Special Use Permits under the Zoning Ordinance due to their proximity to residential areas. Mr. Rodgers presented information on the 14 current Fountain Hills "Smart Router locations. Mr. Rodgers pointed out that Salt River Project was working on the locations in question and moving the location of one of the routers to a power line pole. Mr. Rodgers also added that rather than simply installing bare antennas in residential areas, Staff asked Salt River Project to consider some form of stealth design be used, similar to the designs the Town requires with cell towers. Mr. Rodgers explained that the designs being proposed was a faux saguaro since the pole was roughly 20' tall, this design seemed to be the best fit and would be constructed to look as natural as possible. Mr. Rodgers pointed out that all the infrastructure costs would be borne by Salt River Project and the stealth design costs for these five (5) as well as the other six (6) saguaros being installed on Town property would be covered by the Town's SRP Aesthetics Fund. Staff recommended approval of the Special Use Permits, as presented. Chairman Pew opened the Public Hearing at 6:43 p.m. James Horvath, President of the Sunridge Homeowners Association spoke in favor of the locations as requested and thanked Salt River Project for agreeing to an alternative solution to previously requested placement of router number 01. Mr. Horvath supported and recommended that the Commission approve SRP's request. Dina Galassini, Fountain Hills resident, presented informational handouts to the Commission and requested that these documents be forwarded to the Town Council for their review and consideration. See Exhibit"B" There being no further request to speak, Chairman Pew closed the Public Hearing at 6:55 p.m. AGENDA ITEM#3 - CONSIDERATION OF a SPECIAL USE PERMIT to allow Salt River Project to install an approximately 20' tall faux saguaro cactus smart router antenna within a public utility easement at 15042 E. Sundown Drive. Case Number SU2015-01 • Vice-Chairman Archambault MOVED to recommend that the Town Council approve the Special Use Permit as outlined and add a stipulation that documents presented to the Commission from Dina Galassini be forwarded to the Town Council for their review and consideration. Commissioner Jones SECONDED and the MOTION CARRIED UNANIMOUSLY 7-0. • Page 2 of 4 ® AGENDA ITEM#5 - CONSIDERATION OF a SPECIAL USE PERMIT to allow Salt River Project to install an approximately 20' tall faux saguaro cactus smart router antenna within a public utility easement at 15335 E. Golden Eagle Boulevard. Case Number SU2015-02 Vice-Chairman Archambault MOVED to recommend that the Town Council approve the Special Use Permit as outlined and add a stipulation that documents presented to the Commission from Dina Galassini be forwarded to the Town Council for their review and consideration. Commissioner Jones SECONDED and the MOTION CARRIED UNANIMOUSLY 7-0. AGENDA ITEM#7 - CONSIDERATION OF a SPECIAL USE PERMIT to allow Salt River Project to install an approximately 20' tall faux saguaro cactus smart router antenna within a public utility easement at 16229 E. Ironwood Drive. Case Number SU2015-03 Vice-Chairman Archambault MOVED to recommend that the Town Council approve the Special Use Permit as outlined and add a stipulation that documents presented to the Commission from Dina Galassini be forwarded to the Town Council for their review and consideration. Commissioner Jones SECONDED and the MOTION CARRIED UNANIMOUSLY 7-0. AGENDA ITEM#9- CONSIDERATION OF a SPECIAL USE PERMIT to allow Salt River Project to install an approximately 20' tall faux saguaro cactus smart router antenna within a public utility easement at 14405 E. Mourning Dove Drive. Case Number SU2015-04 Vice-Chairman Archambault MOVED to recommend that the Town Council approve the Special Use Permit as outlined and add a stipulation that documents presented to the Commission from Dina Galassini be forwarded to the Town Council for their review and consideration. Commissioner Jones SECONDED and the MOTION CARRIED UNANIMOUSLY 7-0. AGENDA ITEM #11 - CONSIDERATION OF a SPECIAL USE PERMIT to allow Salt River Project to install an approximately 20' tall faux saguaro cactus smart router antenna within a public utility easement at 12018 N. Eagle Ridge Drive. Case Number SU2015-05 Vice-Chairman Archambault MOVED to recommend that the Town Council approve the Special Use Permit as outlined and add a stipulation that documents presented to the Commission from Dina Galassini be forwarded to the Town Council for their review and consideration. Commissioner Jones SECONDED and the MOTION CARRIED UNANIMOUSLY 7-0. AGENDA ITEM#12-COMMISSION DISCUSSION/REQUEST FOR RESEARCH TO STAFF. Items listed below are related only to the propriety of(i)placing items on a future agenda for action or (ii) directing staff to conduct further research and report back to the Commission. None AGENDA ITEM#13-SUMMARY OF COMMISSION REQUESTS FROM SENIOR PLANNER. None Page 3 of 4 AGENDA ITEM #14 — REPORT FROM SENIOR PLANNER AND ZONING ADMINISTRATOR,PLANNING AND ZONING DIVISION OF DEVELOPMENT SERVICES. Mr. Rodgers explained that the Commission and Town Council joint session scheduled for Thursday, March 26, 2015, had been cancelled indefinitely due to scheduling conflicts. He also reminded the Commissioners of the upcoming Town Attorney's annual "Open Meeting Law and Conflict of Interest" training scheduled on Thursday, March 5, 2015, at 5:00 p.m. in the Town Council Chambers. AGENDA ITEM#15-ADJOURNMENT. Commissioner Howie Jones MOVED to adjourn the meeting at 7:15 p.m. and Commissioner Stan Connick SECONDED and the MOTION CARRIED UNANIMOUSLY 7-0. FOUNTAIN HILLS PLANNING&ZONING COMMISSION BY: 1171.—e-7/ Chairman Llbyd Pew ATTEST: 7c• ice E. Baxter, Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the meeting of the Fountain Hills Planning and Zoning Commission held on the 12th day of February 2015, in the Town Council Chambers, 16705 E. Avenue of the Fountains, Fountain Hills, AZ 85268. I further certify that the meeting was duly called and that a quorum was present. Dated this 12th day of February 2015. nice E. Baxter, Executive Assistant 0 Page 4 of 4 FO_010 16229E.Ironwood Dn FO_040 12018 N.Eagle Ridge Drive 2/12/2015ve Tow of Fountain Hills FO050 15042E.sundown Drive FO_070 15335 E.Golden Eagle Blvd Staff Presentation It,III) 14405E.Mourning Dove Driu 44 in t1T AIN it \ti, 3 " ' • that is As.`ti Salt River Project Special Use Perrrlits 7taux `aatillarn Recommendations 4't15 bh f h. .c Iml« , I ih,nn•s.,iry:u 11 r mler ,•elevulion 4`k .,e ,.v'' .•w+4 ��a :k, e. SFP willow raa c.l,uun�xctnx(ur Uu•s 1 t�tr�rt�rl als nln.alxn,rb•d 6y 5RP pprove the Special Use Permits as presented �xnlx,v,ll Ne u,wred by SRHm..th.h Ion I a Svc " •.b » isof aae "w3 � 't` �. Exhibit "A " 2/12/2015 Smart Grid Modernization Network Command Center 4 Collector 4 Router 4 Meter , ndpo SRP's Smart Grid Modernization Project RCtuter Presented by: t M°° Mariann Ward,SRP Customer Metering Services „cyo Iiirr , Commar Centef Upgrading Communications Benefits • Customer Service • Current SRP residential smart meters in the -Allows SRP customers to see usage data in near-real time to better manage power consumption Town ofFountain Hills communicate via a • Lays the foundation to allow SRP customers to switch between price plans in me commercial cellular network • EnablesM-po rnabim data m customers to better manage power consumption via near- real time data and the ability to enroll in'time-of-use'plans • The advanced residential smart meters will • Security — Provides greater security of customer data communicate via an SRP specific Wide Area • Customer data will be transmitted via an SRP owned system as opposed to an external cellular provider Network(WAN) • Reliability — Lays the foundation for improved outage management • Greater visibility of outage through'last gasp'technology • Faster response time to outages Fountain Hills Routers Router Locations • SRP's Smart Grid Modernization Project requires „F routers to be at a certain elevation for optimum a°e`' communications • Proposed router locations are strategically placed Installed per vendor recommendations • Router Location Selection —SRP Existing Pole —SRP Private Security Light Installed —Municipal Streetlight —Pole Set 1 2/12/2015 C Faux Saguaro Faux Saguaro in Scottsdale v • To complete the reliable network 11 additional routers requiring a new pole must be set to achieve the 20 ft.router elevation • To preserve current aesthetics of the surrounding environment —SRP will use faux saguaro cactus for all 11 locations —Infrastructure costs to be absorbed by SRP —The faux saguaro costs will be covered by Fountain `r Hills'SRP aesthetic funds Permits Needed Sparse Area Network Buildout • January 2014-April 2015 • Special Use Permit- FO O50 —74 Collectors—Installed November 2014 - FO 070 - Fo 010 —878 Routers—86%installed as of - FO 31_ 0 - Fo 310 January 5,2015 • Encroachment Permit • Completion date:March 31,2015 - F0_190 —30,000 Meters—57%installed as of - FO 210 - F0_220 January 5,2015 - FO 230 - FO 320 •Completion date:April 30,2015 - FO_100 —Multi-year Deployment •75-90 thousand new meter installs/year Mail Station XCT320 P.O.Box 520 Mail Station PAB159 phoenix, 85072-2025 P.O.Box 52025 Phon ' 602)236-4107 Robert Goodman Phoenix,AZ 85072-2025 Project Consultant Phone:(602)23611389 Mariann H. Ward Fa • bile:l6O2l Sell 8965 CCS Strategic Business Development Fax:(602)236 4186 Manager,Metering Analyst Group Mobile:(602)809-2602 Customer Metering Services mariann.ward@srpnet.com Project Administration Building / Z 2.36 r�1 9� _0 • t C 2 any speakers provided evidence on health problems since smart meter installation: headaches, tinnitus, sleep problems, heart problems, anxiety, nose bleeds, nausea, and more. Some stated they had been forced to move to avoid co- located antennas in multiple meter installations, and neighborhoods fully deployed with smart meters. The Buyer's Advisory mentions home buyers to inspect for electromagnetic surroundings twice. The EMF Safety Network addressing lack of easements and trespassing, violation of private property owners and is non-consent. Please ask for copies of permits for the homes these proposed router antennas are installed on from the Arizona Radiation Regulatory Agency. This may be mandatory. I'm asking P&Z along with the Council to hold evidentiary hearings on smart meter ,ealth and safety impacts and to ban co-located antennas in multiple meter installations. This situation affects us all. The entire system is making people sick. I OA Exhibit "B" THE PUBLIC WAS MISINFORMED with an improper date of this meeting and I HEREBY REQUEST 1) proper notice in the newspaper with a future public hearing to give sidents time for comments and I request Council to push out their meeting on Feb until they have had time to consider the issues at hand. I II understand 14 new wireless routers are proposed to collect the information from the new meters. A ? Regarding the five routers that require special permits, are the property owners aware of or educated on the extra communication equipment? 5 P d s10f t-vc o�. cssi6 0 ��-1" - U'S. . tagy c6ti-k A� J 7L / Arcl SRP is comparing these routers to a baby monitor. I don't know of any baby monitors that are attached to the front end of a home's wiring. A baby's monitor is only attached to the wiring on that circuit, it's not pulsed & it can be shut off. SRP is pulsing a 360 degree field from the routers over many miles and this will penetrate into homes and tissue. 60 hertz doesn't penetrate the skin, but anything over 1.7 kilohertz does. The smart meter is sending a pulse that is over 60 hertz and it is being absorbed by the body from all directions. is comparing their "weak" signals to cell phones. Almost all we really know about radio frequency radiation and adverse health effects comes from cell phone studies. Given the strength of the evidence from these studies, we don't need to have results from SRP's wireless router exposures given what we know about other radio frequency exposures. People with electromagnetic sensitivity report responding to electromagnetic radiation at intensities well below the limits permitted by international radiation safety standards. I have awaken at exact times when data is sent to the grid. Please think about your awakening times. fit'1G y.z 7 1h 1/ frot �' (0""'-1- 1..1,4-cR I'd like to submit EMF Safety Networks recent filing in California to you as there may be future issues that may affect the Town and its residents. There filings include: "dopting a decision without a safety review is unlawful. -tnough evidence has been submitted to warrant evidentiary hearings on smart meter health and safety impacts. vq( l 1 rtiVraPilitfer A A�tVt,,'tk to t r4 0 j A o- PLEASE BE ADVISED THAT THE LINKS IN THIS ADVISORY ARE NOT LIVE LINKS. TO ENSURE THAT YOU HAVE THE MOST UP-TO-DATE BUYER ADVISORY, PLEASE CHECK HTTP://W W W.AARONLINE_COMIDOCUMENTSBUYER_ADVISORY.ASPX HomeSmart 10601 N.Hayden Rd.,Suite I-100 Scottsdale,AZ 85260 o0 Phone:602-790-5379 Fax: 602-507-3608 Dina Galassini Produced with zipFoui*by zipLogix,18070 Fifteen Mile Road,Fraser,Michigan 48026 WWW LEA ogee corn [inlitled ❑■ imifig Buyer Advisory A Resource for Real Estate Consumers Provided by the ARIZONA ASSOCIATION OF REALTORS* Table of Contents SECTION 1 COMMON DOCUMENTS A BUYER SHOULD REVIEW 3 Purchase Contract 4 Homeowner's Association(HOA) 5 Lead-Based Paint Disclosure Form 3 MLS Printout Governing Documents 5 Professional Inspection Report 3 The Subdivision Disclosure Report 4 HOA Disclosures 5 County Assessors/Tax Records (Public Report) 4 Community Facilities District 5 Termites and Other Wood 3 Seller's Property Disclosure 4 Title Report or Title Commitment Destroying Insects and Organisms Statement(SPDS) 4 Loan Information&Documents 5 Foreign Investment in Real Property 3 Covenants,Conditions and 4 Home Warranty Policy Tax Act(FIRPTA) Restrictions(CC&Rs) 5 Affidavit of Disclosure SECTION 2 COMMON PHYSICAL CONDITIONS IN THE PROPERTY A BUYER SHOULD INVESTIGATE 6 Repairs, Remodeling and 7 Water/Well Issues 8 Indoor Environmental Concerns New Construction (Adjudications,CAGRDs) (Mold,Chinese Drywall, Radon Gas& 6 Square Footage 7 Soil Problems Carbon Monoxide,Drug labs,Other) 6 Roof 7 Previous Fire/Flood 8 Property Boundaries 6 Swimming Pools and Spas(Barriers) 7 Pests(Scorpions, Bed bugs, 9 Flood Insurance/Flood Plain Status 6 Septic and Other On-Site Roof Rats,Termites&Bark Beetles) 9 Insurance(Claims History) Wastewater Treatment Facilities 8 Endangered&Threatened Species 9 Other Property Conditions 6 Sewer 8 Deaths&Felonies on the Property 9 (Plumbing,Cooling/Heating, Electrical systems) SECTION 3 CONDITIONS AFFECTING THE AREA SURROUNDING THE PROPERTY THE BUYER SHOULD INVESTIGATE 9 Environmental Concerns 10 Freeway Construction 10 Military and Public Airports (Environmentally Sensitive &Traffic Conditions 11 Zoning/Planning/ Land Ordinance) 10 Crime Statistics Neighborhood Services 10 Electromagnetic Fields 10 Sex Offenders 11 Schools 10 Superfund Sites 10 Forested Areas 11 City Profile Report SECTION 4 OTHER METHODS TO GETTING INFORMATION ABOUT A PROPERTY 11 Talk to the Neighbors 12 Drive around the Neighborhood SECTION 5 RESOURCES 11 Market Conditions Advisory 12 Additional Information Services:NATIONAL ASSOCIATION OF 12 Fair Housing& Disability Laws REALTORS®,Arizona Government,Arizona Department of Real Estate,and Arizona Association of REALTORS® BUYER ACKNOWLEDGMENT p.13 _._,._._.. -- Page 12 of 13 Arizona Department of Real Estate Buyer Advisory(October 2014) Produced with zipForm®by zipLogix 18070 Fifteen Mile Road,Fraser,Michigan 48026 www zigLogx corn Untitled Buyer I A Resource for Real Estate Consumers Provided by the A 1/, Advisory ARIZONA ASSOCIATION OF REAL70RS" �■ Environmentally Sensitive Land Ordinance: 6 Sex Offenders Approximately two-thirds of the City of Scottsdale is Since June 1996,Arizona has maintained a registry affected by the Environmentally Sensitive Land and community notification program for convicted sex Ordinance (ESLO),which requires some areas on offenders. Prior to June 1996, registration was not private property be retained in their natural state and required, and only the higher-risk sex offenders are designated as National Area Open Space (NAOS). on the website. The presence of a sex offender in the http://www.scottsdaleaz.gov/codes/eslo vicinity of the property is not a fact that the seller or (Environmentally Sensitive Land Ordinance) real estate agent is required to disclose. tittp-/Ariww.scottsdaleaz.gov/cociesteslo/naos www azdps.govlservices/SPx_Offender! (Natural Area Open Space) (Convicted Sex Offenders—Registry &Community Program Notification) Electromagnetic Fields http!/wsat• pw guy Len (National Sex Offender Public Site) For information on electromagnetic fields, and 7 Forested Areas whether they pose a health risk to you or your family, visit the National Institute of Environmental Health Life in a forested area has unique benefits Sciences website. and concerns. Contact county/city fire authority for www niehs nih gov/hPalthltopics/agentctemfl more information on issues particular to a community. (National Institute of Environmental Health Sciences) www azsf azgov or www firewise.on; (Protecting Your Property from Wildfire) 3 Superfund Sites http://cals.arizona edu/firewise There are numerous sites in Arizona where the soil (Arizona Fire Wise Communities) and groundwater have been contaminated by 8 Military and Public Airports improper disposal of contaminants. Maps may be viewed on ADEQ's website to see if a property is in an The legislature has mandated the identification of area designated by the ADEQ as requiring cleanup. areas in the immediate vicinity of military and public airports that are susceptible to a certain level of noise www epa gov/superfund!(EPA),httpI/1 Jisa gov/1u7Y172 (Spanish) from aircraft. The boundaries of these areas have http//wwwazdeg.govl(ADEQ) been plotted on maps that are useful in determining if 4 Freeway Construction a property falls within one of these areas. The maps and Traffic Conditions for military and public airports may be accessed on the Arizona Department of Real Estate (ADRE) Although the existence of a freeway near the property website.Additionally,the boundaries of military and may provide highly desirable access,sometimes it public airports in Maricopa County may be viewed on contributes to undesirable noise. To search for the county website. These maps are intended to roadway construction and planning, visit the Arizona show the area subject to a preponderance of Department of Transportation (ADOT)website. airport-related noise from a given airport. Periodic svwwazdot.gov(ADOT) over-flights that may contribute to noise cannot www.azdntgnv/Highways(Statewide Projects) usually be determined from these maps. www az511 com(Traffic Conddions—Alerts) Vacant land or lots may be for sale within areas of 5 Crime Statistics high noise or accident potential zones. Because the zoning of these lots may conflict with the buyer's Crime statistics, an imperfect measurement at best, ability to develop the property,the buyer should verify provide some indication of the level of criminal whether development is prohibited. activity in an area. http/!1 usa gov/1 kSEpHc (Phoenix Crime Statistics) http//tpdinternet tucsonazgov/Stats/ (Tucson Crime Stats) www.le.gueaz.org/Igd(Crime Statistics All Arizona Cities) C Page 110 of 13 Arizona Department of Real Estate Buyer Advisory(October 2014) Produced with zipFonn6 by zipLog&x 18070 Fifteen Mile Road,Fraser,Michigan 48026 wvtw zipl ogix coin Untitled n G ,y.i A3.rc BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OBI LED CALIFORNIA 1-22-15 04:59 PM Application of Pacific Gas and Electric Company for Approval of Modifications to its SmartMeterTM Program Application 11-03-014 and Increased Revenue Requirements to Recover the Costs (Filed March 24, 2011) of the Modifications(U39M). And Related Matters. Application 11-03-015 Application 11-07-020 APPLICATION OF EMF SAFETY NETWORK FOR REHEARING OF DECISION 14-12-078 January 22, 2015 16. EMF Safety Network Sandi Maurer,Director PO Box 1016, Sebastopol, CA 95473 Telephone(707) 824-0824 emfsafe@sonic.net Of Counsel: James R. Hobson Best Best&Krieger LLP 2000 Pennsylvania Avenue,N.W. Suite 5300 Washington,D.C. 20006 Joshua Nelson Best Best&Krieger LLP 500 Capitol Mall, Suite 1700 Sacramento, CA 95814 • TABLE OF CONTENTS Page 1. Introduction and Summary 1 2. Extortion 3 3. PUC §451 4 4. PUC § 453(b) 6 5. PUC § 328.2(b) 8 6. ADA 9 7. Discrimination 9 8. Property law 10 9. Community opt out 11 10. Cost causation 12 11. Conclusion 13 Verification 15 TABLE OF AUTHORITIES Federal Statutes Page U.S.C. § 42 5 Americans with Disabilities Act(ADA) 1,2,9 National Environmental Policy Act of 1969 5 State Statutes California Civil Code § 54.1 4 § 654 10 § 658 10 § 662 10 § 801(6) 10 § 803 10 California Penal Code § 518 3 Government Code § 11135 9 § 12926.1 9 Public Resource Code § 2100 ("California Environmental Quality Act(CEQA)") 12 Public Utilities Code § 14 6 § 328(b) 2,8 § 451 2,4,5 § 453(b) 1,2,6,9 § 1701.5(a) 2 § 1002 5 Commission Orders D.12-02-2014 2 D.13-07-024 5 D.95-11-017 5,6 D.09-03-026 12 Commission Rules Rule 16.1 1 Constitutional Provisions California Constitution 10 California Constitution Article 1 § 1 10 § 19 11 U.S. Constitution,Amendment V 11 ii Other Authorities 5 Witkin, Summary of Cal. Law(10th ed. 2005)Torts, § 693,pp. 1018, 13 10 12 Witkin, Summary of Cal. Law(10th ed. 2005)Real Property, §§ 429, 430, pp. 500- 501 10 12 Witkin, Summary of Cal. Law(10th ed. 2005)Real Property, § 382, p.446 10 13 Witkin, Summary of Cal. Law(10th ed. 2005)Equity, § 133,p. 453 10 City of Sebastopol Smart Meter Ordinance 11 International Association for Research on Cancer (IARC) classifies EMR a possible carcinogen, in the same category as DDT and lead. (May 2011) 3 Health Risks Associated With SmartMeters Poki Stewart Namkung,M.D. M.P.H 7 Sage Reports 7 Smart Meter Fires and Explosions: EMF Safety Network 8 American Academy of Environmental Medicine 7 EMF Safety Network Wireless Utility Meters Safety Impacts Survey 7 Smart Meters: Correcting the Gross Misinformation 7 L iii L 1. Introduction and Summary On December 18, 2014,the Commission signed Decision (D.)14-12-078 which requires payment of fees for residential customers"who do not wish to have a wireless smart meter."' The Decision gives millions of dollars to the utilities; denies community and business opt out; and states the fees do not violate the Public Utilities Code(PUC) § 453(b) and the Americans with Disabilities Act(ADA). The Commission issued this Decision to parties of record on December 23, 2014. In compliance with Rule16.1, of the Commission's Rules of Practice and Procedure EMF Safety Network (Network) submits this Application for Rehearing. The Commission has a legal obligation to ensure safe delivery of gas and electric service, and has committed legal error by conspiring to delay and ignoring substantive issues so PG&E could complete their deployment. Evidence for this allegation is based on an exparte filing in A.07-12-009.2 On July 2, 2010 PGE's Brian Cherry wrote to Tom Bottorff about having spent a"good few days with Peevey and Bohn". Cherry's description of what took place included smart meters. "SmartMeters-Mike [Peevey] grumbled about the CCSF PFM [City and County of San Francisco Petition for Modification] and the folks in Sebastopool [sp] who want to delay SmartMeter implementation. He implied that this wasn't going to happen and that by the time the Commission got around to acting on it, we would have installed all of our meters." Screen shot: Smutrtmetcrs Mike grumbled about the CCSF PFM and the fags in Sebastapool who wail to delay SmartMeter implementation,He implied that this wasn't going to happen and that by the time the Commission got around to acting on it,we would have installed all of our meters.He was concerned about the Structure Smart_Meter Audit. He said be cotes not go into details,but that we would like their concltsieis on die viability of't!;e teelmolovy and .t ntriistriieIure that supports it. He did say the Structure Audit report would be very critical oldie way we handled the problem and comma nicaied with our customers. He was also highly critical ol'Helen and her handling or the Senate bearing in Sacramento. Miscellaneous- Mike couldn't hide his disdain For Mark Toney and TURN, He was particularly incensed,along with Clanon,about TURNS refusal to modify their wcbsile about opposition to Smart ietcrs. I'm not too concerned about TURN and the GRC at this point t don't believe we need them as a settlement partner with Peevey as the assigned Commissioner. 1D.14-12-078 Summary pg.2 'http://emfsafetynetwork.org/wp-content/uploads/2014/12/PGE-Letter-to-Mr.-Sullivan-Exhibits-1-17_-12- 22-14.pdf 1 L Application 11.03-014 and related matters has been a vehicle for President Peevey's conspiracy to delay and therefore ignore substantial smart meter complaints. PUC §1701.5(a)provides that ratesetting applications shall be resolved within 18 months of issuance of the scoping memo. A.11-03-014 was filed on March 24, 2011, and the first scoping memo was issued on May 25, 2011. The CPUC issued D.12-02-2014 on February 1, 2012,before evidentiary hearings were held. The second scoping memo was issued on June 8, 2012. Evidentiary hearings were held in November 2012. Starting in December of 2013, the Commission filed multiple 60 day delays'. To date this ratesetting proceeding that should have been concluded in 18 months has taken nearly four years. D.14-12-078 contains fatal errors and violations of law: • Requiring customers to pay opt out fees is coercion by exaction, extortion. • A"pay to opt out" program does not provide relief to all customers. cr. • President Peevey made contradictory rulings regarding CPUC actions on smart meter health and safety review. • Adopting a decision without a safety review is unlawful. • Enough evidence has been submitted to the CPUC to warrant evidentiary hearings on smart meter health and safety impacts. • Requiring customers to pay opt out fees who want to avoid harm, or the threat of harm, from pulsed electromagnetic radiation is a violation of utility laws including: PUC §§ 451, 453(b), 328.2(b). • Ruling the ADA does not apply is an unlawful conclusion. • Charging fees for meter readers to some customers and not others is discrimination. • Opt out fees violate core principles of private property law. 'For example:Order Extending Statutory Deadline,December 5,2012 http://docs.cpuc.ca.gov/Published- L Docs/Published/G000/M083/K508/83508045.PDF 2 • The Administrative Law Judge deferred taking testimony on community opt-out, which was part of the scoping memo,then closed the proceeding without taking testimony on community opt out. • The responsibility for the cost of the opt out program should rest with the true cost causers: the utilities and the CPUC. • The utilities have been given substantial risk-based allowances. D.12-14- 078 irresponsibly allocates millions more. 2. Extortion Customers are forced to choose between paying to avoid harm, or the threat of harm4 from the pulsed electromagnetic radiation(EMR)smart meters emit, or lose essential utility service. People have had fires at their homes due to smart meter installation. Customers are denied just and reasonable choices through coercion by exaction. Coercion and exaction are synonyms for extortion. The opt out fee is a government-imposed exaction whose purpose and effect is to coerce payment. Extortion is defined as(California Penal Code Section 518): "Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear,or under color of official right." Another definition is this comment by a PG&E customer: "What the heck is going on when we have to pay MORE for something we don't want, don't need, won't use and can't get out of When the vacuum salesman comes to the door, and I don't want to buy a vacuum, I don't buy it and he doesn't get into my wallet." Transcripts from the Public Participation Hearings (PPH)held between November 13th and November 20th, 2012 illustrate the outrage and frustration utility customers are feeling towards Smart Meters and being charged not to have them. Over 200 utility customers spoke to Administrative Law Judge Amy Yip-Kikugawa in five California The World Health Organization(IARC)classifies EMR a possible carcinogen,in the same category as DDT and lead. (May 2011) 3 L cities.'Twenty speakers refer to the opt-out fees as"extortion".' Other descriptions' include: "a theft", "a scam", "un-American","criminal","tyranny", "pay not to be harmed", "abuse of power", "a penalty", "coercive","highway robbery", and"an assault". Perception of CPUC abuse is so pervasive that customers outrage, indignation, and strong language is fully justified as Mr. Holz in Santa Barbara stated,"in self defense I would smash every single f***ing one of them."' 3. PUC § 4519 A"pay to opt out" program does not provide relief to all customers. For example, some customers cannot afford the fees, live in multi-unit dwellings with co-located antennas in multiple meter installations,or are surrounded by neighbors' smart meters. In consequence, some have been forced from of their homes10. Many commercial customers do not want a smart meter on their business; D.14-12-078 denies businesses the right to the opt out granted residential customers. A"pay to opt out"program does not meet the criteria of just and reasonable under PUC § 451. (mir The recent Safety Policy adopted by the CPUC on July 10, 2014, states that the Commissioners: "Certify through signature on Proposed Decisions that the findings, conclusions, and actions laid out in proceedings can meet the CPUC's overarching goals PPH were held in Bakersfield, Santa Barbara,San Clemente,Los Angeles and Santa Rosa RT 6-10 6 PPH speakers Ms.Rose, 10 RT 1105: 17-19;Ms.Feral, 10 RT 1036:3;Mr.Hom, 10 RT 1017:24;Ms. Lee, 10 RT 1001:24;Mr. Bercich,9 RT 934: 25;Mr.Frank,9 RT 929:18;Ms.Taar,9 RT 942:16;Ms.Ho- man,9 RT 944:3;Ms. Schlicht,9 RT 954:14;Ms.Bruce,8 RT 848:28;Ms.Gregory,8 RT 851:21;Mr. Grey,8 RT 857:14;Mr. Sosenko,8 RT 862:19;Ms. Barton,8 RT 861:25;Mr.McSpadden,8 RT 872:21; Ms.Brunoehler,8 RT 877:10;Berit Sten,7 RT 731:13;Sasha Letterman,7 RT 753:22; Shirley Force,7 RT 798:27;and Veronica Haverbeck,7 RT 811:18 Descriptions from various participants taken from PPH transcripts,6-10 RT 8 PPH speaker Mr.Holz,7 RT 759: 8-10 9 Public Utilities Code§451 in part"Every public utility shall furnish and maintain such adequate, efficient,just,and reasonable service,instrumentalities,equipment,and facilities,including telephone facilities,as defined in Section 54.1 of the Civil Code,as are necessary to promote the safety,health, comfort,and convenience of its patrons,employees,and the public." 10Customers forced to move:Network Opening Brief July 16,2012 p.7;RT 10:Heisler,p.1018,Sharik p.1044,Bullington p.1052,Jelter p.1099;RT 9;Anderson p.973;RT 8:Barris p.854,Levine 846,Gregory p.851;RT 7:Cree p.738,Gould p.813 4 and expectations, and assure that each vote on proceedings, resolutions, ratemaking, or other decisions of the CPUC addresses the CPUC's overarching goals and expectations regarding safety and resiliency." D.14-12-078 contravenes the CPUC action because it does not include a safety review as indicated by the statement" "we will not address the alleged health and safety impacts of smart meters here". It is wrong to obviate statutory obligations for ensuring safety. President Peevey appointed himself to lead smart meter proceedings, and made contradictory rulings. On June 8, 2012 President Peevey's scoping memo in A.11-03-014 ruled the proceeding would not include a health and safety review12. On July 25, 2013 President Peevey's Decision (D.)13-07-024 states"...health issues raised by certain parties were under consideration in other active proceedings before the Commission..."13 The scoping memo referred to in that July 25, 2013 decision indicated it was A.11-03-014 in which a review of health issues related to EMR smart meters was before the Commission. To the extent the Commissioners and the public were misled by President Peevey's contradictory rulings, D.13-07-024 is flawed. The public has been denied both the important and lawful right of public participation, and review of smart meter health and safety impacts. D.95-11-017 states,"This order addresses the cellular phase of our EMF investigation, which considers the Commission's role in mitigating health effects, if any, of RF radiation generated by cellular utilities within the Commission's jurisdiction.... Public Utilities Code Sections §451,and §100214 require the Commission to consider the impact of utilities' services on the environment and human health and safety. ... CACD [Commission Advisory and Compliance Division] shall hold informal cellular EMF and RF radiation workshops as additional health information becomes available and upon "D. 14-12-078 p.7 t2 A.11-03-014 scoping memo issued on 6/8/2012 "D.13-07-024 p.5 14 Public Utilities Code§1002,"(a)The commission,as a basis for granting any certificate pursuant to Section 1001 shall give consideration to the following factors: (1)Community values.(2)Recreational and park areas.(3)Historical and aesthetic values.(4)Influence on environment,except that in the case of any line,plant,or system or extension thereof located in another state which will be subject to environmental impact review pursuant to the National Environmental Policy Act of 1969(Chapter 55(commencing with Section 4321)of Title 42 of the United States Code)or similar state laws in the other state,the commission shall not consider influence on the environment unless any emissions or discharges there from would have a significant influence on the environment of this state." L 5 b preparation of any updated EMF reports, and shall report the results of such workshops to the Commission through the resolution process.15"16 PUC § 14 states"Shall" is mandatory and"may" is permissive. In D.95-11-017 Appendix A,the CACD warned the Commission, "The economic considerations of this issue are significant. CACD raises the equally, if not more important issue of health and safety of the public. ... The Commission is clearly responsible for ensuring that the utilities it regulates are providing service and facilities that do not constitute a threat to the public or the environment."" Refusal to consider the health and safety impact of the smart meters program in this proceeding is contrary to these CPUC decisions and mandates. The question of reasonableness also applies to customers who retained the analog meters. Where the utility will not incur new meter costs, customers are entitled to a credit.1819 Customers who have two or more utility companies should not be double or triple charged to opt-out.20 4. PUC §453(b) Opt-out fees are unlawful under Public Utilities code § 453(b).21 Customers are forced to pay added fees due to medical conditions. Smart meters can interfere with implanted medical devices. Smart meters have caused many people health problems. The record in the docket offers ample evidence that PUC code 453(b) applies. Substantial evidence of EMR harm was presented to the Commission in both 15 D.95-11-017,Ordering Paragraph 2. 16 D.95-11-017 is not directly available on the Commission's web site. See 1995 Cal.PUC LEXIS 842; 165 P.U.R.4th 403. The document can be found at the web address in footnote 16 herein. 1'D.95-11-017,Appendix A,p. 11 'Exhibit EMF-1 3: 5-17 19 Exhibit Aglet-1 19:15-19 2°PG&E witness Raymond Blatter,3 RT 352: 5-12 21 No public utility shall prejudice,disadvantage,or require different rates or deposit amounts from a person because of ancestry,medical condition,marital status or change in marital status,occupation,or any char- acteristic listed or defined in Section 11135 of the Government Code.A person who has exhausted all ad- ministrative remedies with the commission may institute a suit for injunctive relief and reasonable attor- ney's fees in cases of an alleged violation of this subdivision.If successful in litigation,the prevailing party shall be awarded attorney's fees. 6 L phases of this proceeding, including the following: Dozens of Public Participation Hearing(PPH) speakers provided evidence on health problems since smart meter installation: headaches, tinnitus, sleep problems,heart problems, anxiety, nose bleeds, nausea, and more. Some wept as they stated they had been forced to move to avoid co- located antennas in multiple meter installations, and neighborhoods fully deployed with smart meters. For example,Dr. Toril Jelter, a board certified pediatrician and general practitioner with over thirty years experience, stated "When my neighbors got smart meters I developed severe tinnitus, fatigue, and neuropathy at home and at work" In consequence she had to close her practice and move her home to a low EMR area.22 International health experts are recommending the public reduce their exposure to EMR, and advising against installation of, or exposure to smart meters.23 It is well known in May 2011, the International Agency for Research on Cancer, an arm of the World Health Organization, classified EMR as a 2b carcinogen.24 Network conducted a Wireless Utility Safety Impacts Survey in 201125. The top ,,, reported health complaints for people with a smart meter on their home included sleep problems (49%), stress (43%),headaches (40%), ringing in the ears (38%) and heart problems(26%).26 The California Council on Science and Technology (CCST) report on smart meter safety27 concluded, "The topic of potential health impacts from RF exposure in general ... continues to be of concern". California Department of Public Health(CDPH) commented on the CCST study, "CDPH suggests further review of the literature on non-thermal effects, which is complicated and controversial, but does not support a claim of no non- "PPH speaker Ms.Torii Jelter, 10 RT 1098 23 Exhibit EMF 1 9: 4-10 footnote 31 American Academy of Environmental Medicine calls for a halt to wireless smart meters http://emfsafetvnetwork.org/?p=6985 ,Smart Meters:Correcting the Gross Misin- formation http://maisonsaine.ca/smart-meters-correcting-the-gross-misinformation/,Health Risks Associ- ated With SmartMeters Eoki Stewart Namkung,M.D.M.P.H 2O12,and Sage Reports 2011,http://sagere- ports.com/smart-meter-rf/ 24 Exhibit EMF-1 4:22-24 25http://emfsafetynetwork.org/wp-content/uploads/2011/09/Wireless-Utility-Meter-Safety-Impacts-Survey- Results-Final.pdf 26See webcast for personal accounts from people suffering. December 1,2011 CPUC business meeting http://www.californiaadmin.com/cpuc.shtml 27Hea1th Impacts of Radio Frequency Exposure from Smart Meters,2011 7 L, thermal health effects from radio frequency electromagnetic fields.[emphasis added]" Discussing the threat of public harm from increasing and additive smart meter exposure,Poki Stewart Namkung,M.D. M.P.H, Santa Cruz County public health officer provided to the Santa Cruz County Board of Supervisors a report stating EMR"... is additive and consumers may have already increased their exposures to radiofrequency radiation in the home through the voluntary use of wireless devices ...It would be impossible to know how close a consumer might be to their limit, making uncertainty with the installation of a mandatory SmartMeter."28 Other parties in this proceeding also submitted evidence of public health impacts. 5. PUC § 328.2(b) PUC § 328.2(b) states: "No customer should have to pay separate fees for utilizing services that protect public or customer safety." Fires,burned out appliances, and electrical failures related to smart meters are reported in California, Florida, Georgia, Cir Illinois,Maine,Pennsylvania, Texas,Australia, and Canada. Fire departments', safety and elected officials'and customers'accounts of these incidents are included in media reports.29 On such a record, a customer could be justified in rejecting a Smart Meter for safety reasons and should not be charged a separate fee for asserting that protection. At the Santa Rosa PPH Mr. Patrick Wrigley stated he was a former PG&E meter reader for nine and a half years in the Mann office when he was fired because he was not willing to conceal smart meter problems he witnessed. Mr. Wrigley said, "The fact that PG&E knows that they do catch on fire when they are remotely turned back on when a customer who is delinquent in their bill finally pays their bill. These meters catch fire. They know it, and they are covering it up."3°Another speaker, Ms. Moskow stated, "I had terrible electric problems in my house once the smart meter was installed, fire 'Health Risks Associated with Smart Meters,2011 p.3 http://emfsafetynetwork.org/?p=6959 29 Exhibit EMF-1 9: 22-24 to 10:1-4 footnote 16,Network has complied reports of Smart Meters Fires and explosions(including PG&E meters): http://emfsafetynetwork.org/?page_id=1280 30 PPH speaker Mr.Patrick Wrigley 10 RT 1024:18-28 to 1025:1-2 L coming out one of the outlets, many outlets not working."3' 6. ADA D.14-12-078 errs in the conclusion that the fees do not violate ADA laws.32 The U.S. Access Board, a federal entity assisting in ADA implementation, declared that: "[Multiple chemical sensitivities and electromagnetic sensitivities may be considered disabilities under the ADA if they so severely impair the neurological, respiratory or other functions of an individual that it substantially limits one or more of the individual's major life activities."33 People who are forced to relocate,or close their businesses due to major health effects from EMR smart meters are proof of functional disability in major life activities. The statutory language is not confined to particular types of disability,but speaks broadly to interference with major life activities.34 Notably,by reference to Section 11135 of the Government Code, Section 453(b)extends its protection against discrimination to"any program or activity that is conducted, operated, or administered by the state or by any state agency." The opt-out fees and attendant forced acceptance of smart meter installation, if enacted by the CPUC,would qualify as a program, service or activity engaged in by a public entity under Title II, and thus be amenable to judicial review for lawfulness.35 California law provides that any violation of the ADA would also constitute a violation of California civil rights laws concerning disability discrimination. If litigation is pursued,there would be other causes of action, including trespass, negligence, nuisance, and intentional infliction of emotional distress. 7. Discrimination D.14-12-078 (p.3)states,"We generally allocate opt out service costs (e.g., costs "PPH speaker Ms.Moskow 10 RT 1014: 5-9 32 D.14-12-078 Finding of Fact 20,P.77 "IEQ Indoor Environmental Quality;a project of the National Institute of Building Sciences(NIBS)with funding support from The Architectural and Transportation Barriers Compliance Board(Access Board) http://access-board.gov/news/ieq.htm. (emphasis supplied) 34 Moreover,California prides itself for going beyond the ADA in its concern for persons with disabilities. (Government Code Section 12926.1) "See,Opening Brief of Marin County, 11-12. 9 (161. for manual meter reading)to opt out customers..." Some homes still have analog meters because the homes'wiring is incompatible with smart meters. These customers are not being charged fees to retain an analog meter. This is both discriminatory and a recognition of potential hazards created by smart meter installation. Full public disclosure on smart meter failures is warranted. Approximately 9.4 million PG&E smart meters were deployed by the end of June 2012. PG&E reports", 3,738,000 meters were not"activated" and still required meter reading. Smart meters are failing, and requiring ongoing maintenance by meter readers. Fees for the cost of meter readers, like infrastructure costs for the smart meter program, must be allocated equitably. D.14-12-078 enables discriminatory fiscal practices. Ruling against the right of business customers to avoid a smart meter, whereas residents have that right, is discrimination against business customers. 8. Property Law Property owners have a vested, existing property right to: be safe and to enjoy their private lives within the sanctity of their homes; not to have EMR devices installed on their homes and property; and not to be bathed in pulsed EMR emanating from their property. This right is rooted in the California Constitution,37 our democratic beliefs, and long standing property and nuisance statutory and case law38. A radiation transmission device owned by someone other than the owner of the home to which it is attached is a"use" in the property of the homeowner.39 If such use is with the consent of the property owner the use is a license or an easement.40 If it is neither, it is a trespass or a nuisance.41 If the use is for a governmental purpose, it is a 36Twelfth Semi-Annual Assessment Report on the Deployment of Pacific Gas and Electric Company's Ad- vanced Metering Infrastructure Program and Twelfth Quarterly Report on the Implementation Progress of the Smart Meter Program Upgrade. October 1,2012,p.2 37 Cal.Const.Art 1,§1 38 Cal. Civ.Code§§654,658,662, 13 Witkin,Summary of Cal.Law(10t ed.2005)Equity,§ 133,p.453 39Cal.Civ.Code § 801(6),803, 12 Witkin,Summary of Cal.Law(10th ed.2005)Real Property,§382,p. 446 4012 Witkin,Summary of Cal.Law(10h ed.2005)Real Property,§§429,430,pp. 500-501 41 5 Witkin,Summary of Cal.Law(10th ed.2005)Torts, §693,p. 1018, 13 Witkin,Summary of Cal.Law (10`h ed. 2005)Equity,§ 133,p.453 10 taking, requiring due process of law,for which compensation must be made.42 In any of these cases the import is the same, one cannot seize a use in the property of another without the owner's consent,that is, an easement, or the payment of compensation in a proceeding in eminent domain. Smart meter fees imposed on those who do not want the living spaces of their homes subject to EMR from smart meters attached to their homes or installed on their property violates these core principles of private property ownership. For many, smart meters are adjacent to living areas,the thickness of a wall away, and when there are multiple meters attached to the wall,the unwelcome radiation exposure is multiplied accordingly. Smart meters are a nuisance, a means of illegal trespass, and an unconstitutional interference with owners'peaceful use and enjoyment of homes and properties. Neither PGE nor the CPUC has the right to use private property for installation of smart meters without the owner's consent or due process of law If non-consenting property owners retain their property right of excluding smart meters,but must pay a fee to do so,this constitutes a de facto seizure of private property in violation of the above principles. 9. Community Opt Out Communities have a legal responsibility, and the legal and vested power to protect residents from harm and the threat of harm43.At least fifty seven California municipalities, (cities and counties)have asked for some type of relief from smart meters, including no fee opt outs, smart meter health and safety review, and a dozen criminalized smart meter installation. Community opt out was part of the scoping memo in this proceeding. Testimony on community opt out was granted deferment by the ALJ.44 D. 14-12-078 rules against 42 U.S.Constitution,Amend.V,Cal.Const.Art 1,§ 19. 43 For legal statutes see City of Sebastopol ordinance here: http://emfsafetynetwork.org/wp- content/uploads/2013/10/DRAFT-Smart-Meter-Moratorium-Ordinance-For-2-21-2013-.pdf 44 On 9/28/2012 ALT Kikugawa email granted the Motion regarding community opt out testimony a defer- ment 11 cm, community opt out, and closes the proceeding. This legal conclusion is wrong because community opt out testimony remains to be taken. The decision that communities and multi-unit dwellings cannot opt out is a false and misleading conclusion. The CPUC is attempting to sweep public participation under the rug, deny community rights, restrict participation, and apparently expects no pushback. A"pay to opt out"program does not protect customers in multi-unit housing who have co-located antennas in multiple meter installations. The record is lacking information that would serve the CPUC to make better legal decisions. Intervenor testimony on community opt out is warranted and necessary. 10. Cost Causation D.14-12-078 forces the customers to subsidize a major failure of the smart meter program. Major problems with the smart grid modernization have been ignored and Lir downplayed to protect the project and utility profits. The responsibility for the cost of customers refusing smart meters should rest with the true cost causers: the utilities and the CPUC who did not issue a moratorium on the deployment despite thousands of complaints. It was President Peevey,the assigned Commissioner to A.11-03-014 (and relater matters) who assured PGE the Commission would delay long enough for PG&E to complete their deployment. The Commission, in concert with the utilities, forced smart meters onto customers. There is no federal45 or state law that mandates all utility customers must have smart meters, or pay not to have smart meters.46 D.09-03-026 which approved smart meters is both flawed and negligent because it was silent on customer rights of choice; never fully vetted or disclosed the technical specifications of the EMR meters; failed to file a California Environmental Quality Act(CEQA)exemption;47 never held public participation hearings; failed to obtain ratepayers informed consent; and ignored their no 45 PG&E witness James Meadows,3 RT 469:7-9 46 Exhibit EMF-1 6:6-8 47 PG&E witness James Meadows 3 RT 463:14-20 12 L and low cost EMF policy, which included EMR 48 The purpose of opt out fees is protection of the smart grid project and increased utility profits.A utility survey49 showed the more money people were forced to pay to opt out,the fewer people would opt out. The utilities do not want customers to opt out because the smart meter mesh network relies on customers participating. A"pay to opt out" program is coercion by exaction, an unlawful taking. Where the process also conceals project failings from full public scrutiny, it is unlawful and demonstrable cronyism.50 The CPUC reported to the Governor that it did an investigation of smart meter fires,but did not make the report available to the public.' On November 11, 2014, Network sent a records request to obtain it,plus additional information. The CPUC has ignored the records act request. PG&E was already provided $128.8 million in risk-based allowance, included in the original smart meter program.52 D.14-12-078 allows utilities to recover$60 million dollars53 or more for the opt out program. The decision states,"customers have remedies available for excessive or improper expenditures. Similarly, intervenors have various recourses if they become aware of such excesses going forward."54 Is the Commission willfully blind to these excesses? If shareholders paid for opt out costs, more accountability in the future would be assured. 11. Conclusion The Commission should reopen the proceeding to rescind and refund smart meter opt out fees; ban co-located antennas in multiple meter installations; hold evidentiary hearings on: smart meter health and safety impacts, community, and commercial rights. 43 Exhibit EMF-1 6: 9-12 49 SDGE survey see p. 1-2 Network Reply Comments 12/2011 http://emfsafetynetwork.org/wp-content/up- loads/2012/11/156140.pdf "President Peevey is under scrutiny for alleged favoritism toward PGE. 51 http://www.cpuc.ca.gov/NR/rdonlyres/2F5149C6-885A-4211-8CBA-A4F88F02CEA7/0/SmartGridAn- nualReport2013 final.pdf 52 Exhibit EMF-1 5: 22-23 to 6:1-3 53 D.14-12-078 Summary p.2 54D.14-12-078 p.48-49 13 L The CPUC must take these actions to ensure safe and reliable utility service at reasonable rates to California customers or fail in its stated mission. Dated January 22, 2015, at Sebastopol California. /s/ Sandi Maurer EMF Safety Network PO Box 1016 Sebastopol CA 95473 Of Counsel: James R. Hobson Best Best& Krieger LLP 2000 Pennsylvania Avenue,N.W. Suite 5300 Washington, D.C. 20006 Joshua Nelson L Best Best& Krieger LLP 500 Capitol Mall, Suite 1700 Sacramento, CA 95814 14 r VERIFICATION I, Sandi Maurer, represent EMF Safety Network and am authorized to make this verification on the organization's behalf. The statements in the foregoing document are true to the best of my knowledge, except for those matters that are stated on information and belief, and as to those matters I believe them to be true. I declare under penalty of perjury that the foregoing is true and correct. Dated January 22, 2015, at Sebastopol California. /s/ Sandi Maurer EMF Safety Network PO Box 1016 Sebastopol CA 95473 Tel.(707) 824-0824 emfsafe@sonic.net 15