XI. GO Violations

A. The 37 Accidents

The 37 accidents are described in detail in Appendix B.¹⁴ In three of the accidents, we find no GO violation as alleged by CPSD.¹⁵ In nine of the accidents, we find a GO violation, but find no nexus between the violation and the injury.¹⁶ In 11 of the accidents, we find a GO violation and a nexus between that violation and property damage.¹⁷ In 14 of the accidents, we find a GO violation and a nexus between either personal injury or death.¹⁸ In short, we find GO violations in 34 of the 37 accidents investigated for this proceeding.

B. Violations of GO 95 and 128

Edison did not contest CPSD's findings of nonconformances with GO 95 and 128 at the time CPSD made them; in fact, once notified, Edison repaired these problems as required by CPSD. We applaud Edison for timely addressing these problems. Nonetheless, we find, based on CPSD's inspection results, 4,044 violations of GO 95 and 677 violations of GO 128.

We address below Edison's further arguments on whether it is appropriate to penalize Edison for these violations.

C. Violations of GO 165

1. Identification of Unsafe Conditions

CPSD states that it conducted a random audit comparing CPSD's and Edison's inspection results. CPSD found 94 GO 95 violations on 46 poles, whereas Edison found 12 violations on the same poles. CPSD therefore concludes that Edison committed 82 violations of GO 165 for failing to identify the unsafe conditions CPSD identified in its inspection.

Edison argues that this audit was not random, but rather that CPSD deliberately targeted Edison's earliest detailed inspections with the fewest findings and refused to conduct additional audits on later detailed inspections which Edison believes were more thorough. Edison's expert also testified that CPSD violated audit principles by allowing its inspectors to know in advance the Edison inspection results and denying Edison the right to comment on the audit. Edison also states this audit lacks context because CPSD did not conduct it on any other utility. Finally, Edison states it actively participated in the GO 165 audit, and its recorded results show far more poles inspected and far fewer discrepancies than CPSD's numbers. Edison believes the correct numbers should be 68 GO 95 violations on 70 poles inspected, instead of 94 violations on 46 poles.

Even under Edison's own numbers, a discrepancy between 68 and 12 violations is large. Although we realize this audit occurred on one of the areas where Edison first conducted its detailed inspection, Edison did not go back immediately and re-inspect this area once it refined its inspection techniques. The goal of GO 165 inspections is to make utilities find all matters needing corrective attention, including violations of GO 95 and GO 128. We expect such inspections to be thorough, deliberate, and detailed. We therefore find 56 violations of GO 165 (68 CPSD observed violations minus 12 Edison-observed violations).¹⁹

2. Period Between Inspections

As stated above, CPSD's interpretation of GO 165's inspection interval requirement is correct, and the maximum interval between inspections is measured in years (i.e., 365 day increments.) We find one violation of GO 165 for Edison's faulty interpretation of this requirement.

3. Scheduling and Performing Corrective Action

CPSD alleges Edison violated GO 165 for failing to perform corrective work in a timely fashion. CPSD argues that during 1998-2000, Edison assigned most of the GO 95 violations it found in annual patrols a low priority repair level, such that the violations were scheduled for repair on an opportunity basis (i.e., the next time Edison visits the facility to perform other work with no time period specified) or within five years. CPSD does not link any of these alleged violations with harm, or demonstrate how they adversely affected the safety or reliability of Edison's system.

As stated above, approval of Edison's maintenance prioritization system is beyond the scope of this investigation; however, Edison should refine its maintenance priority system. In the process of our adoption of GO 165, we stated that for the time being, "standards for maintenance, repair, or replacement should be based on performance, leaving greater management discretion and recognizing that this discretion does not render maintenance, repair, and replacement decisions beyond future regulatory reform or penalties." (D.96-11-021, 69 CPUC2d 224, 233.) Because CPSD has not demonstrated how the alleged GO 165 violations affect the safety or reliability concerns with the specific GO 165 allegations it alleges, and because GO 165 does not contain times certain by which Edison must repair or replace equipment, we find CPSD has not met its burden of proof in demonstrating the GO 165 violations pertinent to scheduling and performing corrective action.

D. Alleged Rule 1 Violations

CPSD alleges Rule 1 violations with respect to the June 21, 1998 accident in Lancaster and the May 26, 1998 accident in Newbury Park. Both accidents are summarized in Appendix B. CPSD's alleged Rule 1 violations are based on the belief that Edison gave incomplete or inaccurate information to staff during its investigation of the above accidents.

Rule 1 provides in pertinent part that persons transacting business with the Commission shall never mislead the Commission or its staff by an artifice or false statement of fact or law.²⁰ The Commission has recently held that Rule 1 violations require purposeful intent, recklessness, or gross negligence in regard to communications with the Commission. (See D.02-08-063, Application of Pacific Fiber Link, L.L.C., 2002 Cal.PUC LEXIS 533.) In D.94-11-018, 57 CPUC2d 176, the Commission recognized that a line of prior decisions held that situations involving a failure to correctly cite a proposition of law, a lack of candor or withholding information, and a failure to correctly inform and to correct mistaken information are potential Rule 1 violations, and clarified that a Rule 1 violation can result from such conduct if it is reckless or grossly negligent. 57 CPUC2d at 204.

With these standards in mind, we discuss the two allegations.

1. Lancaster

In this accident, a person was fatally injured when he climbed an Edison pole, allegedly to steal Edison property for salvage, and came in contact with an energized transformer fuse holder. CPSD alleges that Edison misled the Commission by stating that the idle transformer had not been removed because there was an outstanding new business meter order for service, when in fact there was no such order.

Edison stated that in this district, there was an outstanding new business order, but this order was created not in response to a new customer but simply to preserve account information for a particular address that might otherwise be lost when service is terminated. Edison states that new business orders were used for this purpose in this district.

We find confusion in Edison's communication practices, but do not find intentional, reckless, or grossly negligent failure to investigate the difference in meaning between the term "new business order" in the various districts.²¹ We therefore do not find a Rule 1 violation here.

2. Newbury Park

CPSD requested information regarding any instructions Edison provided to the subcontractor who was performing work on Edison's transformers in the Newbury Park area. Edison told CPSD that Edison was unaware the subcontractor was accessing the transformers because the main contractor retained the subcontractor without Edison's knowledge. CPSD alleges its further investigation revealed that an Edison employee testified in a deposition that Edison was aware that the subcontractor was repairing the transformers and that the contractor had been given access to work on the interior of the transformers.

Edison believes it gave CPSD accurate information. Edison states that the deposition testimony indicated that, several months prior to the Newbury Park accident, an Edison foreman from a different district provided the subcontractor with a key and cutaway locks for a repair job in Orange County (Newbury Park is not located in Orange County.) According to Edison, CPSD's conclusion is erroneous because, at the time of CPSD's inquiry, Edison did not know the contractor on the Newbury Park job subcontracted the job.

We find miscommunication occurred but, again, not the type of conduct to constitute a Rule 1 violation. There are no circumstances surrounding the accident that should have caused Edison to interview other districts before responding to CPSD's question.

Edison argues that it is also not required to update CPSD on the information it learned from the deposition, and such a requirement would be never-ending. We understand Edison's concern about updating the Commission in all instances, and we do not find a Rule 1 violation in this instance because of the specific facts of the case.²² However, as a general principle, in accident investigations, if Edison discovers that information it has communicated to the Commission in response to the Commission's inquiry is in error, Edison should promptly communicate with the Commission to make appropriate corrections.