4. October 23, 2008 Ruling of Assigned
Commissioner and Assigned ALJ
On October 23, 2008, the Assigned Commissioner and the assigned Administrative Law Judge issued a joint ruling to withdraw the September 2, 2008 proposed decision, enter additional documents into the record, require a report by SCE to explain why the information in the additional documents had not been included in the petition, and request comments on three questions.17 The joint ruling describes what had transpired, as follows.
After the PD [proposed decision] mailed, Energy Division staff requested and received full copies of the [certain Four Corners co-tenancy agreements] between SCE and its co-owners . . . as well as additional information on the capital expenditures listed in A.07-11-011. Upon review of this additional information, we have discovered several discrepancies that cause us to question whether the Petition should have been more comprehensive in its explanation of SCE's rights and obligations under its Agreements and whether this additional information would have led us to reach a different outcome than recommended in the PD.18
The joint ruling observes that some of the agreements contain provisions for unanimous consent for approval of capital expenditures, particularly those over $5 million. Furthermore, while some of the capital expenditure approvals were made after D.07-01-039 issued, at the time SCE filed its petition, only a portion of the approximately $178.6 million in capital expenditures had been approved under the various co-tenancy agreements. In light of the new information, the joint ruling requests comments on three questions, which we paraphrase as follows:
· Does the new information require a change in the proposed decision's conclusion that the capital expenditures at Four Corners do not fall under D.07-01-039's definition of new ownership investment?
· Should SCE be allowed to recover any of the requested capital expenditures for Four Corners?
· Are evidentiary hearings necessary and if they are, what issues must be addressed through hearings?
In response to the joint ruling's request for an explanation of the perceived omissions in its original petition, SCE filed a report on November 6, 2008. Thereafter, parties filed comments on the three questions set out above; specifically, DRA, NRDC, SCE and WPTF filed comments on November 24, 2008 and reply comments on December 15, 2008.
17 The new evidence, attached to the joint ruling, consists of: (1) the Four Corners Project Co-Tenancy Agreement, Including Amendment No. 6; (2) the Four Corners Project Operating Agreement, Including Amendment No. 12 and Letter Agreement Dated December 29, 1969; (3) the Four Corners Units 4 & 5 Capital Improvements, Design and Construction Agreement; (4) email correspondence between Energy Division staff and SCE concerning follow-up questions on the capital expenditures and the Agreements; and (5) a list of the Four Corners Co-Owner-Approved Projects as of October 10, 2008.
18 Assigned Commissioner and Administrative Law Judge's Ruling Entering Additional Information into the Record and Seeking Comments (Joint Ruling) at 3.
