II. Procedural History

The OII in this proceeding was issued on March 12, 1998. This order required each Class A and Class B regulated utility to file by July 15, 1998 reports regarding compliance with safe drinking water regulation for the past 25 years. The Water Division was ordered to review and comment on these utility compliance reports by November 16, 1998. Upon the request of the utility respondents, these dates were extended. Utility compliance reports were filed on or before September 15, and staff's report was filed on December 4. In response to the Commission's invitation to answer specific questions, DHS filed its report on September 21, 1998.

Subsequently, two prehearing conferences (PHCs) were held. At the first PHC on November 12, 1998, the assigned ALJ granted petitions to intervene filed by certain law firms representing plaintiffs in the Superior Court actions. The law firms, which were permitted to intervene as one joint interested party, were as follows: Engstrom, Lipscomb & Lack; Girardi & Keese; and Dewitt, Algorri & Algorri (collectively the EL&L Group or EL&L). The EL&L Group represents over 500 plaintiffs in pending civil lawsuits alleging personal injury and death caused by drinking water. After the PHC, the presiding officer granted the Petition to Intervene filed by Rose, Klein & Marias (RK&M), a law firm which represents over 500 plaintiffs in other pending civil actions. Subsequently, the presiding officer also granted the Petitions to Intervene of the following companies named as potentially responsible parties (PRPs) in pending civil litigation (thereafter, they participated as one joint interested party): McDonnell Douglas Corporation, Aerojet-General Corporation, and Huffy Oil Company.

At the November 12, 1998 PHC, several other procedural issues were resolved. First, parties were directed to file any prehearing jurisdictional motions on or before December 4, 1998. EL&L and RK&M subsequently filed timely motions challenging the Commission's jurisdiction to pursue this investigation. Eight parties opposed these motions. On June 10, 1999, we issued D.99-06-054, our interim decision denying the jurisdictional motions of RK&M and the EL&L Group.³ At the November 12 PHC, the respondent utilities were also instructed to provide supporting documents for their compliance reports to all parties, which they did. Staff's request for supplemental compliance reports disclosing all exceedances of DHS standards was also granted at the November 12 PHC.

At the second PHC held on January 26, 1999, more procedural matters were resolved. The parties agreed that although ex-parte contacts were generally allowed under Commission rules governing a quasi-legislative proceeding, any ex-parte contacts in this case should be reported under the requirements of Rule 7(d) because civil lawsuits were pending between the same parties in the proceeding. This ruling was later affirmed by the Commission in D.99-06-054.

After discussing the scope, issues, and schedule at the January 26 PHC, a status ruling with a partial schedule was issued on February 11, 1999. The assigned Commissioner asked parties to identify the specific contaminants alleged to have caused a health risk in the drinking water, and he indicated that further questions to refine the issues in the OII were forthcoming. Parties subsequently identified roughly 30 contaminants.

The assigned Commissioner issued a scoping ruling on May 3, 1999. This ruling resolved motions by Citizens and California American Water Company (Cal-Am) to compel the EL&L Group to answer data requests. The ruling granted the motions and required compliance within 10 days. In addition, the May 3 scoping memo directed the parties to answer 25 supplemental questions, and DHS to answer 12 questions, for the purpose of narrowing the focus of the proceeding and clarifying the DHS report.

On May 10, 1999, Oral Argument before the Commission en banc was held pursuant to a request by RK&M and the EL&L Group. EL&L did not attend, and later notified the Commission of its intended absence. Opening briefs were filed on July 15 and reply briefs on July 20, 1999.

On December 4, 1998, EL&L filed an application for rehearing of D.99-06-073. On September 17, 1999, we issued D.99-09-054 modifying the Interim Opinion yet upholding its conclusion that the Commission has jurisdiction to resolve all issues outlined in this proceeding. No further appeals of the jurisdiction issue were filed.

After the close of the taking of evidence in this proceeding, four motions were filed. The EL&L Group and RK&M filed pleadings that requested, in effect, that these law firms be allowed to withdraw as parties in this proceeding. Shortly thereafter, California-American Water Company (Cal-Am) filed a motion to compel the EL&L Group to comply with that portion of the May 3 Scoping Memo which had ordered the EL&L Group to answer Cal-Am's data requests. Suburban filed a motion to compel RK&M to answer the additional questions set forth by the Assigned Commissioner in the May 3 Scoping Memo. These motions are resolved in a separate opinion in this proceeding.

III. Motion to Retroactively File Water Division Reports

The Ratepayer Representation Branch of the Water Division (staff) inadvertently failed to file its reports in this proceeding and requests leave to file them late. Since these reports were timely served to all parties and no party objected to staff's motion, it is granted. The following reports will be retroactively filed on the respective dates below that they were mailed to parties in this proceeding:

1. December 4, 1998 Report on Responses of Class A and Class B Water Utilities to Investigation 98-03-013.

2. January 22, 1999 Modified Summary and Recommendations and Table 2-M.

3. March 12, 1999 Data Request for Perchlorate and MTBE tests.

4. May 17, 1999 Response to Questions 28-30 in May 3 Ruling.

5. June 4, 1999 Follow-Up to Report Dated December 1998.