III. CONCLUSION

For the reason discussed above, legal error has not been demonstrated. However, we modify D.09-04-010 to clarify that the Commission did not rely on evidence that was not in the record. Rehearing of D.09-04-010, as modified, is denied.

THEREFORE, IT IS ORDERED that:

The first full paragraph on page 25 of D.09-04-010 is modified to read as follows:

"On March 20, 2009, PG&E filed documentation in this docket that indicated the project would be in compliance with the EPS.  Comments on this filing pointed out that the heat rate value used by PG&E to derive an emissions rate for the unit may not represent average operating conditions (e.g., factoring in cold starts and operation below full capacity).  In their testimony, PG&E provided several heat rates, including the heat rate used in their response. (See Joint Parties' Motion for Approval of the 2^nd APPA, dated December 23, 2008, Attachment A, p. A-98 [Confidential (Under Seal)]. Using the other heat rates, including one that averages all of the heat rates in the record, and applying the method adopted in D.07-01-039 for calculating the emission rate, we are satisfied that the project does comply with the EPS based on likely average emissions rates for the project."

1. Group Petitioners' and CARE/Simpson's requests for oral argument under Rule 16.3 of the Commission's Rules of Practice and Procedure are denied.

2. Rehearing of D.09-04-010, as modified, is hereby denied.

This order is effective today.

Dated February 25, 2010, at San Francisco, California.

MICHAEL R. PEEVEY

                                                                                               President

DIAN M. GRUENEICH

JOHN A. BOHN

TIMOTHY ALAN SIMON

NANCY E. RYAN

                  Commissioners