BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA ) ) ) ) ) ) ) ) ) Complainant, Defendant.

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1 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Mr. John S. Davis Complainant, vs. Southern California Edison Company (U338-E) Defendant. ) ) ) ) ) ) ) ) ) C (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 Telephone: (626) Facsimile: (626) william.seldeen@sce.com Dated: April 13, 2012 LIMS

2 SOUTHERN CALIFORNIA EDISON COMPANY'S (U 338-E) ANSWER TO COMPLAINT TABLE OF CONTENTS Section Title Page I. INTRODUCTION...1 II. SUMMARY...1 A. Relevant Factual Background Installation of the First Low-Noise Transformer Testing Confirms The Low-Noise Transformer Is Functioning Properly Mr. Davis Files His First Formal (Expedited) Complaint SCE Fully Complies With The Commission s Order The Sixth Sound Survey With Commission Inspectors...7 B. The Transformer Noise Is Not A Legal Nuisance Legal Standard 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, i-

3 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-

4 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Mr. John S. Davis Complainant, vs. Southern California Edison Company (U338-E) Defendant. ) ) ) ) ) ) ) ) ) C (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 Rusty Fig Circle, Cerritos, California 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 - 1 -

5 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 ). 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 decibels 1 (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 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)

6 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 Rusty Fig, Serial No. L445224T73AA was 75 kva)

7 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 ). 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 ) 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, 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)

8 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 Rusty Fig Circle, Cerritos, California with a pad-mounted transformer, either an ABB or Cooper Industries low noise transformer 75kVA/120/240/12kV 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 Case , Expedited Complaint Procedure Complaint, (F). 4 Id., (G)(c). 5 Id. at 5 (emphasis added)

9 (Serial No. JC ). 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 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 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). 7 Exhibit C (ABB Certified Test Report); Exhibit D (ABB Sound Level Test Results). 8 Exhibit E (Photograph of Transformer Serial Number)

10 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, 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 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, (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 Exhibit F (June 21, 2011Transformer Noise Evaluation Report). 10 Exhibit G (Nov. 9, 2011 Noise Measurements Report)

11 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 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 -

12 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)

13 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 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. )

14 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 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

15 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] 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

16 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

17 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 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, lownoise 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

18 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 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. )

19 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 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

20 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 , 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

21 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 Telephone: (626) Facsimile: (626) April 13,

22 Exhibit A - Transformer Inquiry Report

23

24 Exhibit B - Letter from J. & N. Davis to Judge Barnett Feb. 28, 2011

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26 Exhibit C - ABB Certified Test Report

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29 Exhibit D - ABB Sound Level Test Results

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31 Exhibit E - Photograph of Transformer Serial Number

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33 Exhibit F - Transformer Noise Evaluation Report - June 21, 2011

34 EMF & Energy Corporate Environment, Health and Safety Operations Support Business Unit 1218 S Fifth Avenue Monrovia, CA 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

35 TRANSFORMER NOISE EVALUATION RESIDENCE CITY OF CERRITOS Southern California Edison 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 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 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 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

36 TRANSFORMER NOISE EVALUATION RESIDENCE CITY OF CERRITOS Southern California Edison 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

37 TRANSFORMER NOISE EVALUATION RESIDENCE CITY OF CERRITOS Southern California Edison Noise Level Measurement Results Monitor Location Monitored Noise Level (dba) Noise Level Adjusted for Ambient (dba) Comment At 1 foot from transformer See Picture 1 At 15 feet from transformer - on backyard lawn See Picture 2 At 15 feet from transformer - between residence and block wall See Picture 3 Weather conditions: 74 F, 25% RH, sunny, < 2 mph wind Picture 1 Sound Level Meter at 1 foot from Transformer Page 4 of 7

38 TRANSFORMER NOISE EVALUATION RESIDENCE CITY OF CERRITOS Southern California Edison 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

39 TRANSFORMER NOISE EVALUATION RESIDENCE CITY OF CERRITOS Southern California Edison 5. CITY OF CERRITOS NOISE CRITERIA The City of Cerritos Municipal Code Chapter 22.80, Section 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 Rusty Fig Circle is 50 dba. Page 6 of 7

40 TRANSFORMER NOISE EVALUATION RESIDENCE CITY OF CERRITOS Southern California Edison 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 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 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 Page 7 of 7

41 Exhibit G - Noise Measurements Report Nov. 9, 2011

42 NOISE MEASUR REMENTS REPORT Residential Transformer Rusty Fig Circle, Cerritos Noise measurementss were conducted in the presence off two CPUCC inspectors on November 9, 2011, between 9:00 AM and 10:00 AM., near the pad mounted transformer located in the backyard of the residence at Rusty Fig Circle in the City of Cerritos, California. The monitored noise levels ranged between 42.1 dba and 43.0 dba at 15-feet distance, and 48.8 dba at 1-foot distance from the transformer. The ambient noise level ranged between 41.8 dba and 42.1 dba during the measurements. The monitored noise levels are consistent with previous measurements conducted on June 15, 2011 (seee Table below). Noise Level Measureme ent Resultss Monitor Location Monitored Noise Levels (dba) 6/ 15/11 11/9/11 Ambient At 1 foot from transformer At 15 feet from transformer - on backyard lawn At 15 feet from transformer - between residence and blockk wall The monitored transformer noise levels meet the Cityy of Cerritos Municipal Code 50 dba maximumm noise level limit applicable to the SCE transformer installed in the backyard of the residencee at Rusty Fig Circle. * * * * * * * * * Report prepared by: Cornelis H. Overweg, P.E., LEED AP, INCE Bd. Cert. Senior Environmental Noise Specialist, EMF & Energy Group Corporate Environment, Health and Safety Department Operations Support Business Unit Southern California Edison Rusty Fig Circle, Cerritos Page 1of 1 11/9/11

43 Exhibit H - Noise Standards Tables from Cerritos General Plan

44

45

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47 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

48 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 Service was effected by one or more means indicated below: Transmitting the copies via to all parties who have provided an 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 Commissioner Mark J Ferron 505 Van Ness Avenue 505 Van Ness Avenue San Francisco, CA San Francisco, CA 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- 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

49 JOHN S. DAVIS RUSTY FIG CIRCLE CERRITOS CA C List of Non- Recipient

50 CPUC - Service Lists - C Page 1 of 1 4/13/2012 CPUC Home CALIFORNIA PUBLIC UTILITIES COMMISSION Service Lists PROCEEDING: C DAVIS VS EDISON - D FILER: MR. JOHN S. DAVIS LIST NAME: LIST LAST CHANGED: MARCH 14, 2012 DOWNLOAD THE COMMA-DELIMITED FILE ABOUT COMMA-DELIMITED FILES Back to Service Lists Index Parties JOHN S. DAVIS JANET S. COMBS, ESQ RUSTY FIG CIRCLE SR. ATTORNEY CERRITOS, CA SOUTHERN CALIFORNIA EDISON COMPANY FOR: JOHN S. DAVIS 2244 WALNUT GROVE AVENUE / PO BOX 800 ROSEMEAD, CA FOR: SOUTHERN CALIFORNIA EDISON COMPANY State Service DAVID M. GAMSON CALIF PUBLIC UTILITIES COMMISSION DIVISION OF ADMINISTRATIVE LAW JUDGES ROOM VAN NESS AVENUE SAN FRANCISCO, CA TOP OF PAGE BACK TO INDEX OF SERVICE LISTS