ALJ/MD2/tcg Date of Issuance 9/3/2010
Decision 10-09-004 September 2, 2010
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Application of Pacific Gas and Electric Company for Expedited Approval of the Amended Power Purchase Agreement for (U39E) |
Application 08-09-007 (Filed September 10, 2008) |
DECISION DENYING GROUP PETITIONERS' PETITION
FOR MODIFICATION OF DECISION 09-04-010 AND GRANTING
JOINT PETITION OF PACIFIC GAS AND ELECTRIC COMPANY,
RUSSELL CITY ENERGY COMPANY, LLC, DIVISION OF RATEPAYER ADVOCATES, CALIFORNIA UNIONS FOR RELIABLE ENERGY,
AND THE UTILITY REFORM NETWORK FOR MODIFICATION OF
DECISION 09-04-010, AS MODIFIED BY DECISION 10-02-033
Summary
Decision (D.) 09-04-010 approved a settlement embodied in a Second Amended Power Purchase Agreement (2nd APPA) between Pacific Gas and Electric Company (PG&E) and Russell City Energy Company, LLC (RCEC) that was also supported by Division of Ratepayer Advocates (DRA), The Utility Reform Network (TURN), and California Unions for Reliable Energy (CURE). The original power purchase agreement was first approved by the Commission in D.06-11-048 as part of PG&E's 2004 Long-Term Procurement Plan. A minor clarification made in D.10-02-033, in response to two applications for rehearing otherwise denied, did not affect the Commission's overall approval of the 2nd APPA.
This Decision denies the Petition for Modification of D.09-04-010 filed by Group Petitioners on the grounds that the arguments are speculative, lack relevance, and are moot. This Decision also grants the Petition for Modification of D.09-04-010, as modified by D.10-02-033,1 filed by PG&E, RCEC, DRA, CURE, and TURN on the grounds that it is reasonably justified and in the public interest. The effect of this modification is to approve the First Amendment to the Second Amended Power Purchase Agreement between PG&E and RCEC, which provides limited changes to the terms and conditions of the Agreement, including a reduction in price and deferral of the delivery date by one year. The First Amendment was necessary largely due to a delay, until February 3, 2010, of the issuance of the Final Prevention of Significant Deterioration permit by the Bay Area Air Quality Management District, and several subsequently filed appeals.
No disputed issues of material fact have been presented and no hearing was held. Based on the written record, we grant this Petition for Modification, but in recognition of a withdrawn issue and in the interest of improved clarity, we do not adopt, verbatim, the revised language that PG&E and the other joining parties have proposed.
1. Background
This proceeding considered an Application by Pacific Gas and Electric Company (PG&E) for approval of an Amended Power Purchase Agreement with Russell City Energy Company, LLC (RCEC). On December 23, 2008, PG&E, RCEC, Division of Ratepayer Advocates (DRA), California Unions for Reliable Energy (CURE), and The Utility Reform Network (TURN) (collectively "Joint Parties"), filed a Joint Motion for Approval of a Second Amended Power Purchase Agreement (Joint Motion) which represented a settlement of all issues raised by and among the Joint Parties. California Pilots Association, Skywest Townhouse Homeowners Association, and Hayward Planning Association (collectively, "Group Petitioners") and Californians for Renewable Energy, Inc. (CARE) and Rob Simpson (collectively, CARE/Simpson) opposed the Joint Motion and the underlying Settlement.
In Decision (D.) 09-04-010, issued on April 16, 2009, the Commission approved the Joint Parties' settlement agreement, and thus, approved the Second Amended Power Purchase Agreement (2nd APPA). Both CARE/Simpson and Group Petitioners each timely filed an application for rehearing, both of which were opposed by the Joint Parties. On February 25, 2010, the Commission adopted D.10-02-033 which made a minor clarification to D.09-04-010, and otherwise denied both applications for rehearing.
On June 22, 2009, Group Petitioners filed a Petition for Modification of D.09-04-0102 (Group Petition), a Request [Motion] for Official Notice of Facts, and Declaration of Jewell J. Hargleroad in support of the Group Petition. PG&E, RCEC, and CURE filed a timely Joint Response to the Group Petition (Joint Response), which it later amended to include an omitted attachment.3 In support of the Group Petition, Group Petitioners filed two other Requests for Official Notice of Facts on August 27, 2009 and February 2, 2010.4
On April 15, 2010, the Joint Parties filed a Joint Petition for Modification of D.09-04-010, as modified by D.10-02-033 (Joint Petition). The Joint Petition sought approval of "limited modifications" to the 2nd APPA approved in D.09-04-010, and addition of language to implement the cost recovery mechanism "recently adopted by the legislature in Senate Bill (SB) 695." With the permission of the ALJ, Group Petitioners filed a late Response to the Joint Petition (Group Response) on May 20, 2010.
At the Prehearing Conference held on May 17, 2010 to consider the schedule, discovery issues, whether a hearing was necessary, the pending motions, and other procedural matters, two new groups made appearances: Alliance for Retail Energy Markets (AReM) and Womens Energy Matters (WEM). AReM and WEM requested and received party status related to the Joint Petition issue of whether to add to D.09-04-010 certain language to implement the cost recovery mechanism set forth in SB 695. Marin Energy Authority (MEA) subsequently filed a motion to become a party in this proceeding for purposes of participating in the cost recovery issue. On June 10, 2010, the Joint Parties filed a motion to withdraw the SB 695-cost recovery issue from the Joint Petition. Based on the removal of the issue of interest to these parties, the ALJ issued a ruling on June 18, 2010 which reversed the grant of party status to AReM and WEM, and denied party status to MEA, all without prejudice, in addition to resolving several other outstanding motions by the parties.
1 An issue related to a cost recovery mechanism has been withdrawn from the Petition for Modification.
2 For purposes of this decision, references to D.09-04-010 should be understood to mean D.09-04-010, as modified by D.10-02-033.
3 The omitted attachment was the Non-Disclosure Agreement (NDA) signed by counsel for Group Petitioners applicable to this proceeding. The Joint Response alleged that Group Petitioners had improperly disclosed in the Group Petition certain confidential market sensitive information. This matter was disposed of in the June 18, 2010 ruling by the Administrative Law Judge (ALJ).
4 The ALJ's Ruling, issued on June 18, 2010, denied the June 22, 2009 and February 2, 2010 requests, but granted, in part, the August 27, 2009 request.
