DREDF and DRC Reply Comments on Phase 3 of CPUC Power Outage Proceeding

DISABILITY RIGHTS EDUCATION & DEFENSE FUND’S AND DISABILITY RIGHTS CALIFORNIA’S REPLY COMMENTS ON DE-ENERGIZATION PHASE 3 SCOPING MEMO AND RULING

Sydney Pickern
Staff Attorney
Disability Rights Education & Defense Fund
3075 Adeline St. Suite 210
Berkeley, CA 94703
(510) 644-2555
spickern@dredf.org

Nicholas Levenhagen
Senior Attorney
Disability Rights California
530 B Street, Suite 400
San Diego, CA 92101
(619) 814-8527
nicholas.levenhagen@disabilityrightsca.org

Samuel Jain
Staff Attorney II
Disability Rights California
1831 K Street
Sacramento, CA 95811
(916) 504-5929
samuel.jain@disabilityrightsca.org

March 29, 2021

I.     Introduction

II.     Discussion

III.     Conclusion

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

DISABILITY RIGHTS EDUCATION & DEFENSE FUND’S AND DISABILITY RIGHTS CALIFORNIA’S REPLY COMMENTS ON DE-ENERGIZATION PHASE 3 SCOPING MEMO AND RULING

Order Instituting Rulemaking to Examine Electric Utility De-Energization of Power Lines in Dangerous Conditions

Rulemaking 18-12-005
(Filed December 13, 2018)

In accordance with the schedule set by the Administrative Law Judge in this matter, including an email ruling issued on March 2, 2021, extending the deadline for submitting comments, the Disability Rights Education and Defense Fund (DREDF) and Disability Rights California (DRC) respectfully submit these reply comments in response to the Assigned Commissioner’s Phase 3 Scoping Memo and Ruling and its attached Proposed Additional and Modified De-Energization Guidelines (Phase 3 Scoping Memo), issued on February 19, 2021. DREDF was granted party status on July 30, 2019.[1] DRC filed a motion for party status on March 24, 2021. DRC was granted party status on March 26, 2021. While DREDF and DRC do not address every presented item in the Phase 3 Scoping Memo, we appreciate the opportunity to continue to address all issues raised as this proceeding continues.

DREDF and DRC are advocacy organizations directed by individuals with disabilities. DREDF is a leading national disability civil rights law and policy center. DRC is the agency designated under federal law to protect and advocate for the rights of Californians with disabilities. DREDF and DRC’s constituents include Californians with disabilities and the Access and Functional Needs (AFN) population, one of the populations most directly impacted by de-energization events. DREDF and DRC’s AFN constituents have contacted us with concerns about de-energization events, including individuals directly impacted.

As the CPUC is aware, de-energization events place the health and safety of people with disabilities and low-income communities of color at grave risk. Critically, these events interrupt the operation of medical devices such as ventilators, hospital beds, communications equipment, and power wheelchairs. They also affect the refrigeration of medication and food, the ability to enter and exit housing with elevator or lift access, and temperature control, among other serious consequences. Californians with disabilities have reported to us that they live in constant fear of when the next de-energization event will occur, and that preparing for de-energization drastically impacts the already complicated routines required to use life-sustaining medical equipment. Others have reported experiencing severe harm during power shutoffs, including life-threatening situations.[2] Outside of California, the recent events in Texas serve as a further reminder of how power interruptions can be a matter of life and death.[3]

DREDF and DRC also share the same concern as other parties to the proceeding, that de-energization is being utilized by Investor Owned Utilities (IOUs) to skirt IOU responsibility to adequately maintain their electricity delivery systems. It is imperative that the CPUC continue to work with the IOUs to improve their electricity delivery systems so that de-energization is no longer an option. Accordingly, DRC and DREDF provide the following responses to the comments and proposals filed in this proceeding on March 19, 2021.

Proposal – Each electric investor-owned utility must coordinate in advance with local and tribal governments to (a) identify sites for CRCs, (b) the level of services that will be available at those centers, and (c) execute standing contracts in advance to ensure that CRCs can be opened quickly.

DREDF and DRC strongly agree that coordination between IOUs and local governments is key to ensuring that the life-threatening effects of de-energization are mitigated. Although we generally support the availability of CRCs as one tool available to help mitigate the impacts of de-energization on the disability community, effective mitigation will require much more. However, because we understand that CRCs will be utilized during de-energization, we want to reiterate the importance of the accessibility of CRCs, including physical and communications access at these sites, so that people with mobility and sensory disabilities are able to access the resources available. We also reiterate that some people will require transportation to utilize CRCs, and that transportation should be among the services available to this community. Furthermore, we want to emphasize the importance of CRCs having robust medical device charging capabilities, so that people with disabilities who rely on medical equipment are able to recharge an array of devices. Lastly, we agree with the Center for Accessible Technology’s (CforAT) concern “that CRC’s close overnight, leaving vulnerable customers literally in the dark with nowhere to go.”[4] This fact highlights the importance of making CRCs available 24 hours a day, as people with disabilities who rely on electricity-dependent medical equipment will have consistent charging needs.

Proposal – Each electric investor-owned utility must detail in its annual CRC plan how the CRCs will provide the services and supplies required to serve medical baseline and AFN populations as recommended by the respective local governments and health agencies.

DREDF and DRC support the proposed guidelines requiring that IOUs detail in their annual CRC plan how CRCs will provide services and supplies needed to serve the medical baseline and AFN populations as recommended by respective local governments and health agencies. CRCs can be an important resource for some of the AFN population by providing an additional lifeline where medical equipment can be charged, shelter from severe smoke pollution, access to heating and cooling, and other resources that can be accessed and distributed. However, CRCs are not a viable alternative to providing back-up power resources in the home or to providing hotels or motels for people who may not be able to utilize back-up power at home to mitigate the effects of de-energization events. For many in the AFN community, reliance on a CRC is impractical at best, and often futile, due to mobility challenges, lack of transportation, and the difficulty of breaking down and moving expansive set-ups of home medical equipment. Access to CRCs may be prohibited entirely due to geographical barriers more likely to occur during de-energization events, such as downed trees from high winds. Charging medical equipment can take several hours, and waiting for this period of time at a CRC under bad weather conditions can be unsafe. We also highlight the dangers of utilizing any type of congregate emergency response setting while the pandemic is ongoing which bolsters the necessity of additional and robust mitigation efforts. CRCs are just one piece of what is needed to help mitigate the disastrous effects of this type of emergency.

Proposal – Each electric investor-owned utility must make all CRC-location information publicly available and easily accessible on its respective de-energization webpage at least 24 hours before de-energization.

DREDF and DRC support the Commission’s proposal to specify a time-frame for when CRC location information will be provided. However, 24-hour notice is insufficient. Although we understand that the weather events that trigger the apparent need for de-energization may be unpredictable, many individuals in the AFN community need as much time as possible to prepare for these intentional power outages. Many people with disabilities rely on providers and community-based organizations to distribute de-energization information. It takes time for these entities to become aware of information and then disseminate it. Further, emergency planning for individuals using medical equipment can be complex and may require multiple days of preparation. The locations for non-mobile CRCs should be required to be provided as far in advance of a de-energization event as possible. Location information for mobile CRCs should be provided at least 72 hours in advance. Lastly, CRC location information should be provided in customer notifications.

Proposal – Each electric investor-owned utility must conduct de-energization simulation exercises no later than 60 days after the issuance of the Phase 3 final decision, then again at least annually by July 1 using the same channels of decision-making, knowledge transfer, implementation, and communication that would be used in the event of a de-energization.

DREDF and DRC support the requirement that IOUs conduct simulation exercises. We also support CforAT’s recommendation that the CPUC require IOUs to include mitigation scenarios in their simulation exercises, including how to meet the needs of people with disabilities during extended outages and how to address the transportation barriers that this population experiences.[5]

Proposal – Critical Facilities is further defined to include: Tribal government providers; Homeless Shelters supported by federal, state, or local, or tribal governments; Community Centers; Senior Centers; Temporary facilities established for civic participation (voting centers or vote tabulation facilities); Cooling (or Warming) Centers designated by state, or local or tribal governments; Temporary facilities established for public health emergencies …

DREDF and DRC support the inclusion of the additional categories of facilities to the definition of “critical facilities” as listed in the Phase 3 Proposed Guidelines. Critical Facilities, as defined in the Phase 1 ruling, include facilities essential to the public safety that require additional assistance and advance planning to ensure resiliency during de-energization events.[6] This includes medical facilities, skilled nursing facilities, nursing homes, health care facilities, and hospice facilities.[7] DREDF and DRC recommend incorporating additional facilities in this definition, including Independent Living Centers (ILCs), assisted living facilities,[8] and residential/inpatient mental health facilities, as these facilities are essential to the public safety, play a critical role in assisting individuals with disabilities during emergencies, and require additional assistance and advance planning to ensure resiliency during de-energization events.  ILCs, for example, require additional assistance and advance planning to convey timely and accurate information to consumers, identify needs, and assist in meeting those needs including providing alternative power resources when possible.

Proposal – False-negative communications are those conveying that a de-energization event will not occur, when de-energization does occur.

DREDF and DRC support the inclusion of this definition and support CforAT’s recommendation that the proposed definition for false-negative include:

1. situations where no communication is provided to a customer who is then subjected to a shutoff event; and
2. situations where insufficient notice is provided (such as a single notice of imminent shutoff, but none of the required prior warnings).[9]

All alerting failures risk harm to customers and each failure should be identified and reported separately.

Proposal – Each electric investor-owned utility must conduct public outreach, in all languages prevalent in its respective service territory, to communities in collaboration with relevant Community Based Organizations (CBOs) and public safety partners. Outreach must include after-event surveys and metrics to evaluate whether the awareness and outreach is helping communities and residents before, during, and after a de-energization event. Each electric investor-owned utility must report the survey results and metrics in its quarterly de-energization progress reports.

DREDF and DRC support this proposal and commend the CPUC for its consideration of the importance of providing vital information in multiple languages. We also recommend that the CPUC require education and outreach activities be made accessible to people with disabilities with communications access needs. This means that education and outreach events are effectively captioned, that ASL interpreters are provided, and that any written materials provided be made available in alternative formats. We note and appreciate that CforAT recommends similar requirements.[10]

Proposal – The following groups must be included in each electric investor owned utility’s identification efforts, in addition to the existing requirement for each such utility to “identify, above and beyond those in the medical baseline population”: • Persons reliant on electric life-sustaining equipment, persons eligible for the medical baseline program.

DREDF and DRC support the Commission’s proposed expansion of mandated IOU identification efforts. We also acknowledge the efforts by some IOUs to expand and include additional individuals in their medical baseline program. We recommend that the CPUC provide additional guidance to IOUs on how to identify these new populations. For example, the IOUs could coordinate with the U.S. Department of Health and Human Services to utilize the emPOWER database to identify Medicare beneficiaries who rely on electricity-dependent medical equipment.[11] DREDF and DRC also recommend adding an additional identification category to further mitigation goals. A number of DREDF and DRC constituents have medical and disability needs tied to electricity who may not qualify for medical baseline or rely on “life-sustaining” equipment. These individuals may suffer immediate or long-term health impacts without access to electricity. This includes individuals who need medication refrigerated, use elevators or lifts to enter and exit their homes, and individuals vulnerable to extreme temperature fluctuations. DREDF and DRC recommend expanding mandated IOU identification efforts to include individuals who have life-sustaining medical needs affected by the loss of power.

Proposal – Each electric investor-owned utility must build partnerships with CBOs and healthcare providers, including but not limited to, those from county-level health and human services departments, public health departments, healthcare facilities, and clinics, to lessen the impact of de-energization events, and to improve outreach and assistance for AFN communities, and medical baseline eligible customers.

DREDF and DRC support the Commission’s proposal that IOUs build partnerships with Community Based Organizations (CBOs) and healthcare providers to lessen the impact of de-energization and improve outreach and assistance for AFN communities. This is vitally important to reaching those most impacted by de-energization events and has been recommended throughout this proceeding. We recommend that the CPUC specify the types of activities that IOUs should undertake in building “partnerships” in order to lessen the impact of de-energization events and to improve outreach and assistance for AFN communities. For “partnerships” with CBOs, recommended activities should include data sharing, coordinated outreach, solicitation of assistance with notification, and solicitation of feedback on AFN plans. Data sharing for alerting and mitigation purposes should be done as far in advance of de-energization as possible and should include as much detailed geographical information as possible to aid in the effectiveness of alerting and mitigation efforts. CBOs must also be provided the support and resources necessary to assist in this process. For “partnerships” with healthcare providers, including County In-Home Supportive Service departments, activities should include working to identify beneficiaries with life-sustaining electricity related needs for the purposes of alerting, back-up power resources, transportation, and hotel/motel utilization. Furthermore, DREDF and DRC recommend that County In-Home Supportive Service departments be added to the list of required partners, as well as Regional Centers and any agency that serves individuals who receive Medi-Cal home and community based services, including 1915 (c) waiver services, Community-Based Adult Services (CBAS), Programs of All-Inclusive Care for the Elderly (PACE), and California Children’s Services (CCS).

Proposal – Each electric investor-owned utility must use its own list(s) of customers in groups subject to identification efforts and work with CBOs that conduct outreach in these AFN communities to identify customers who reside in multi-family buildings and rely on elevators to access or leave their residence. Each electric investor-owned utility must include its list in its pre-season report. A) Each electric investor-owned utility must contact the building manager of the building(s) identified herein in preparation for wildfire season to ensure such facilities: (1) have forewarning, and (2) discuss backup generation resource options. Each utility must additionally notify these building managers prior to conducting a de-energization event. B) Each electric investor-owned utility must provide information to paratransit agencies serving all the tenants of the buildings identified herein should any tenant need access to a community resource center during a de-energization event.

DREDF and DRC support the Commission’s proposed guidelines requiring IOUs to coordinate with CBOs to identify and conduct outreach to individuals in the AFN community who rely on elevators to access or leave their residence. De-energization events have a massive impact on these individuals, who may be unable to access or leave their home to obtain food, medications, medical equipment, medical care, or exit their homes during concurrent emergencies. DREDF and DRC are concerned IOU outreach and discussion with building managers may not be sufficient to mitigate the impact of de-energization events on these individuals. We recommend that IOUs be required to outline the concrete steps they take towards mitigation for this subset of the AFN community in IOU AFN plans. Furthermore, DREDF and DRC recommend that the Commission include additional detail in the language of this proposal for the terms “forewarning” and “prior to conducting a de-energization event.” As previously stated, people with disabilities affected by de-energization need as much advanced warning as possible, therefore, specificity here is important.

Proposal – Each electric investor-owned utility must launch a program to support resiliency for customers that rely on medical equipment to sustain life, by providing them free backup batteries that energizes such medical equipment for at least six hours. This shall be reported in progress reports and post-season reports.

DREDF and DRC support the Commission’s focus on mitigating the impact of de-energization events on the AFN community. We also appreciate that most, if not all, IOUs already have programs providing backup batteries.[12] A challenge for the AFN community is not the lack of existence of these programs, but that there are insufficient resources to meet the need in existing programs. As noted in DREDF’s previous filing, there are at least 176,483 electricity dependent individuals in California.[13] Per reports in December 2020, PG&E’s back-up battery program has provided 3,100 back-up batteries, SDG&E’s 1,409, and SCE’s 367.[14] This represents approximately 3% of electricity-dependent individuals served by IOUs and does not include individuals reliant on electricity for refrigeration of medicine, elevators, or temperature controls.[15]

DREDF and DRC support requiring a minimum time limit for backup batteries to energize medical equipment. However, because each type of medical device requires an individualized assessment of charging time, we recommend that the CPUC require IOUs to first assess the type of medical equipment utilized by individual consumers, and then provide the required number of batteries necessary to fulfill the charging needs of the individual. Furthermore, we recommend that mitigation solutions also be developed for the AFN population that relies on refrigeration for medication and food, communications equipment, elevator access, and temperature regulation. With these recommendations in mind, we agree with Joint Local Governments’ and CforAT’s concerns that six hours of charging capability is insufficient.[16] Mitigation measures should be provided for the maximum amount of time power can reasonably be expected to be shut-off. PG&E shutoff power for some customers for up to three days in October 2019 and IOUs are allowed to shutoff power for up to five days. A six-hour backup battery would be grossly insufficient to mitigate the impact of longer de-energization events.

Furthermore, the CPUC should require additional mitigation efforts for individuals who may have medical equipment power needs where a backup battery system is likely insufficient. One such DRC client is reliant on a ventilator, oxygen machine, power wheelchair, power hospital bed, power lift, humidifier, airway path machine, and home climate controls to manage her disability. She was left without power for over 12 hours following an intentional de-energization event by SCE. During the event, her ventilator backup battery ran out of power and she was unable to get out of her power wheelchair. An additional backup battery is likely insufficient for this individual because of reliance on a number of electric powered medical devices. The CPUC should require IOUs to coordinate and provide payment for accessible hotel or motel stays as part of their mitigation requirements for people with medical needs who may not be able to utilize backup power resources at home.

For some individuals, the constant anxiety created by the fear of planned power outages may impact mental health, particularly when one is dependent on electricity to stay alive. We recommend that crisis counseling also be considered to mitigate these impacts. DREDF and DRC support SDG&E’s efforts to provide a variety of backup power resources to customers, including whole house generators.[17] IOU mitigation efforts cannot be one size fit all and must depend on the power needs of the individual. DREDF and DRC ask the commission to mandate full mitigation for individuals reliant on electricity for disability and medical related needs.

Proposal – Each electric investor-owned utility must develop a notification plan jointly with Cal OES, public safety partners, county, tribal, and local governments, independent living centers, paratransit agencies, and representatives of all subsets of people or communities with access and functional needs. Each electric investor-owned utility must finalize its notification plan in its pre-season report.

DREDF and DRC support the Commission’s proposal requiring IOUs to develop a notification plan jointly with other organizations. We appreciate PG&E’s expanded notification efforts including durable medical equipment vendors.[18] We propose including durable medical equipment vendors and adding additional agencies to join notification plan efforts for all IOUs, including Regional Centers and any agency that serves individuals who receive Medi-Cal home and community based services, including 1915 (c) waiver services, CBAS, PACE,  and CCS.

We agree with the Joint Local Governments’ statement that each stakeholder group may have different information and notification requirements.[19] In light of this reality, we recommend that IOUs work with CBOs to develop notification plans.

DREDF and DRC appreciate the opportunity to provide these reply comments on the Phase 3 Scoping Memo. We appreciate the steps that the CPUC is taking to assist in mitigating the life-threatening consequences of these planned power outages. We also encourage the CPUC to continue to direct IOUs to perform the infrastructure and resiliency work necessary to ensure that de-energization is not a permanent solution to extreme weather events. DREDF and DRC look forward to reviewing the input from other stakeholders and continuing efforts to ensure the impact of de-energization events on the AFN community are effectively mitigated.

Respectfully submitted,
March 29, 2021

/s/  Sydney Pickern
Sydney Pickern
Staff Attorney
Disability Rights Education & Defense Fund
Tel: 510-644-2555
E-mail: spickern@dredf.org

[1] R.18-12-005; Email Ruling Adopting Protocol for Noting Party Status in Filings; March 12, 2019.

[2] One client is reliant on a ventilator, oxygen machine, power wheelchair, power hospital bed, power lift, humidifier, airway path machine, and home climate controls to manage her disability. During a recent de-energization event, she reported that her ventilator back-up battery ran out of power. She was also unable to transfer out of her power wheelchair.

[3] The events last month in Texas further highlight how power interruptions can be a matter of life and death. Among the estimated fifty-seven individuals who perished, multiple individuals with disabilities died from medical equipment failure and extreme temperature fluctuations.  See, e.g., USA TODAY, They have chronic illnesses. Then, the power went out in Texas (Feb. 18, 2021); TEXAS TRIBUNE, At least 57 people died in Texas winter storm, mostly from hypothermia (March 15, 2021).

[4] Center for Accessible Technology Opening Comments at 11-12.

[5] Center for Accessible Technology Opening Comments at 12-13.

[6] Phase 1 Guidelines, Appendix C2.

[7] Id.

[8] Examples of assisted living facilities include: Congregate Living Health Facilities (CHLFs) which serve people on the HCBA Waiver, all Intermediate Care Facilities (ICF), for people with I/DD with nursing needs (ICF-DD/CN), among others.

[9] Center for Accessible Technology Opening Comments at 14.

[10] Center for Accessible Technology Opening Comments at 14-15.

[11] HHS emPOWER Program Platform (last visited March 25, 2021).

[12] SDG&E’s AFN Plan (December 1, 2020) p. 8; PG&E’s AFN Plan (December 1, 2020) p. 7; SCE’s AFN Plan (December 1, 2020) p. 18.

[13] DREDF Phase 2 Reply Comments (October 15, 2019) p. 3; Cal Matters, Turning Off Power to Combat Wildfires Could Harm the Very People Who Need Protection (September 12, 2019).

[14] SDG&E’s AFN Plan (December 1, 2020) p. 8; PG&E’s AFN Plan (December 1, 2020) p. 8; SCE’s AFN Plan (December 1, 2020) p. 19.

[15] IOUs serve approximately 80 percent of all California’s energy customers. Public Advocates Office Annual Report (2013).

[16] Joint Local Governments’ Opening Comments at 14; Center for Accessible Technology Opening Comments at 18.

[17] SDG&E’s AFN Plan (December 1, 2020) p. 13.

[18] PG&E’s AFN Plan (December 1, 2020) p. 22.

[19] Joint Local Governments’ Opening Comments at 18.