12. Comments on Proposed Decision
The proposed decision of the ALJ in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed on January 11, 2009, by PG&E, IEP, DRA, and CFC. No reply comments were received. In this section we address the major issues addressed by the parties.
CFC reiterated arguments previously raised in its protest to the application, including the contention that the Commission lacks authority to grant PG&E's application. CFC again argues that evidentiary hearings were necessary and again fails to point to any material issues of fact in dispute. CFC opines that if there were no disputed facts it should have prevailed in its motion for summary judgment.56 CFC is mistaken, however, in its assertion that summary judgment is proper if there are no material issues of fact in dispute. As CFC itself notes summary judgment is proper when there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. CFC was the sole protestant to PG&E's application, but failed to raise any disputed issues of material fact. Thus, while there were no issues of material fact in dispute, the Commission had to make both factual and legal determinations based on the information provided in the application and on the record established during this proceeding. To the extent that CFC's motion for summary judgment agrees that the record is final and seeks a conclusion different from that reached herein, it is denied.
DRA clarifies its position and asks that the proposed decision be amended to clarify that this decision approves only Phase 1 of the CAES Project, that PG&E cannot recover Phase 2 expenditures before review of Phase 1 and that PG&E must file a formal application for review of later phases of the CAES project. This decision clearly states that only Phase 1 is at issue. As a result, it has no bearing on Phases 2 or 3 and PG&E must make separate applications to the Commission for subsequent phases of the CAES project.
IEP requested clarification that the final report required by the proposed decision be publically available, with the possible exception of the intellectual property of the persons or entities hired to perform the studies. In response to IEP's request we note that all Recovery Act grant recipients are required to file quarterly reports, annual reports and a final report with the DOE. The Commission requires copies of any reports required by DOE to be provided to the Commission and it is our understanding that these reports are publicly available.57 DOE also states the information shall be reported to and published on the internet.58
56 On December 9, 2009, CFC filed a motion for summary judgment arguing that, based on the facts presented, PG&E's application should be dismissed because if failed to meet its burden of proof to show the requested ratepayer funding is justified.
57 D.09-09-029 at 12 and 16.
58 DE-FOA-0000036 at 57.
