5. 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. SCE filed comments on March 5, 2012; TURN, Sierra Club and EDF filed comments on March 7, 2012; and SCE filed reply comments on March 12, 2012.

TURN suggests that, but for SCE's statement in its reply brief that it intends to structure its FERC proposal to treat the TSTA proceeds as a reduction to transmission operations and maintenance expense, the proposed decision would have ordered SCE to flow the TSTA proceeds to ratepayers. TURN seeks modification of the proposed decision to require SCE to explain the details of its intended ratemaking proposal in a Tier 3 advice letter in order to ensure a shared understanding of it. TURN's comment identifies the need to clarify the proposed decision's unintended implication that it finds the Sale Agreement to be reasonable on the basis of SCE's intended FERC proposal. To the contrary, in finding the value of the Sale Agreement to be reasonable, the proposed decision relies upon the expectation that the ratemaking treatment would be pursuant to applicable FERC law and precedent, not on SCE's representation of what it will ultimately propose at FERC. We modify the proposed decision to make this clarification. Because the treatment of the proceeds from the TSTA is properly litigated before FERC, we need not predetermine the details of SCE's intended FERC proposal here.

Sierra Club argues that the proposed decision arbitrarily deviates from D.10-10-016's restrictions on SCE's expenditures for Four Corners in 2012 on the basis of its assertion that the Commission is not bound by its own precedent. To the contrary, the proposed decision explains how exempting these expenditures from D.10-10-016's restrictions is reasonable for being consistent with the EPS's overall objectives.

Sierra Club argues that the proposed decision errs by failing, without explanation, to reach the issue of whether the 2012 expenditures are permitted by D.10-10-016 by virtue of their not increasing the power plant's life by five years or more. We modify the proposed decision to clarify that we do not reach this issue because we exempt the expenditures from D.10-10-016's restrictions.

Sierra Club argues that the proposed decision errs by characterizing SCE's 2012 expenditures as necessary for routine operation of the plant and environmental compliance because they increase the reliability of the plant. Sierra Club's argument is without merit. The fact that routine maintenance might render a power plant more reliable than otherwise does not make it something other than routine maintenance.

Sierra Club asserts that the proposed decision errs in giving no weight to certain testimony and transcripts in Application 10-11-015 to which Sierra Club cites in its opening brief on CEQA issues. (See footnote 14, above.) Sierra Club now, for the first time in its comments on the proposed decision, asserts that those documents are contained in the administrative record of the IS/ND for purposes of CEQA (although Sierra Club does not specify where, in that record, they might be found). Citations in briefs are expected to specifically reference the record of the proceeding in citing to evidence therein. (See Rule 13.11.) Furthermore, our review of the administrative record of the IS/ND does not locate the cited documents. We find no error.

Sierra Club's remaining comments merely reargue its litigation positions and do not identify legal or factual errors.

EDF argues that the proposed decision errs in deeming EDF's proposal to require SCE to monitor and report emissions and/or condition the sale on APS's commitment to retire Units 1 through 3 as untimely for coming in EDF's opening brief on CEQA issues. EDF argues that it was precluded from presenting such recommendations until the CEQA analysis had been prepared. EDF's argument is without merit. As EDF states in its comments, "assess[ment of] whether a proposed divestment of property owned by a public utility is in the public interest [...] may include environmentally-related conditions to the sale even when those conditions are not motivated by compliance with CEQA." (EDF comments, at 2.) All parties were on notice of the possibility that the CEQA analysis would result in a negative declaration determining that no environmental mitigation is required for the project and that the time and place for raising objections to divestiture pursuant to the terms of the Sale Agreement, other than those required by CEQA, was separate from the consideration of CEQA issues. (See scoping memo.)

EDF reargues its litigation position that the Commission should require SCE to monitor and report emissions from Four Corners in order to ensure that the IS/ND's determination that the sale will not result in any significant environmental impacts is realized. As discussed in the proposed decision, neither CEQA nor the public interest requires mitigation of a non-existent significant environmental impact. We modify the proposed decision to further elucidate this point.