Discussion
No party disputes the fact that the second condition precedent in 16.2.2 from the Term Sheet to establish a Settlement Agreement Effective Date, namely the achievement of a final and non-appealable Order rendered by FERC, has been met. We agree that this condition has been satisfied.
The first condition precedent to establish a Settlement Agreement Effective Date, as detailed in Section 16.2.1 of the Term Sheet, cannot be met until there is "a final and non-appealable Commission decision approving the QF/CHP settlement that does not modify, change, and/or make an addition to the settlement." The decision that adopted the QF/CHP settlement is D.10-12-035, and there are pending applications for rehearing on that decision, including one filed by CMUA and one by City and County of San Francisco (CCSF).32 These pending applications for rehearing would otherwise prevent this condition from being met. In the April 2011 Motion, CMUA, as a Joint Petitioner, indicated that they would accept either withdrawing their Application for Rehearing or have the Commission concurrently deny it as being moot. D.11-07-010 was silent on this part of the April 2011 Motion and the July 2011 Motion did not seek clarification either way. Because our action in this decision restores the modifications requested in the April 2011 Petition, now "without change," we anticipate that CMUA may submit a request to the Executive Director to withdraw its application for rehearing. 33
As mentioned above, the pending applications for rehearing on D.10-12-035 prevent the Section 16.2.1 condition to establish a Settlement Agreement Effective Date from being met. However, because the settlement was modified by D.11-07-010, it is not just the pending applications for rehearing on D.10-12-035 which prevent this condition from being met. This decision modifying D.11-07-010 also needs to be final and non-appealable. The Settling Parties have agreed that the condition in 16.2.1 of the Term Sheet to establish the Settlement Agreement Effective Date can be satisfied when this decision has reached final and non-appealable status. The Joint Respondents do not raise any disputes to this agreement. Since all of the Settling Parties are in agreement and no party disputes it, we conclude that Section 16.2.1 of the Term Sheet will be satisfied when D.10-12-035 and this decision reach final and non-appealable status. When this happens, all of the conditions to establish a Settlement Agreement Effective Date will be satisfied. Therefore, we establish that the Settlement Agreement Effective Date shall be when D.10-12-035 and this decision are final and non-appealable.
Lastly, the Joint Petitioners filed a Motion for Closure on these consolidated dockets. While the establishment of a Settlement Agreement Effective Date is perhaps the most relevant remaining element in the open proceeding, there are still a few remaining items, including the before mentioned pending applications for rehearing. As such, these proceedings remain open.
32 While D.11-03-051 denied rehearing of D.10-12-035 on certain issues, it also granted CMUA's motion for abeyance. In granting the motion for abeyance, D.11-03-051 recognized that CMUA's application for rehearing was similar to issues raised by CCSF. D.11-03-051 also held the unresolved portions of CCSF's application for rehearing in abeyance, consistent with CMUA's motion.
33 We presume, without pre-judgment of the outcome, that as soon as CMUA's application for rehearing is withdrawn, the Commission can quickly dispose of CCSF's rehearing application.
