Edison Comments/Commission Responses
1. Definition of "alternate" proposed in OIR is legally erroneous. (Comments on Draft Decision, pp. 2-5.)
Response: Reject. SB 779 expressly refers to the Commission's listing of an item as an "alternate" on its public agenda. The Commission's use of that term has at all times been consistent with the definition proposed in the OIR. See also Response to Joint Energy Utilities Comment #1 (Part I of Appendix B).
2. Decisions and Alternates should be "complete" when issued. (Comments on Draft Decision, pp. 5-6.)
Response: Reject. See Response to Joint Energy Utilities Comment #2 (Part I of Appendix B).
3. Allow replies to comments on draft resolutions and alternates to draft resolutions. (Comments on Draft Decision, p. 6; Comments on D.99-11-052, p. 2.)
Response: Agree. See Response to ORA Comment #1 (Part I of Appendix B).
4. Do not adopt any of the proposed additional categories of decisions subject to reduction or waiver of the period for public review and comment. (Comments on Draft Decision, pp. 7-8.)
Response: Reject. See Response to Joint Energy Utilities Comment #8 (Part I of Appendix B).
5. Do not exempt from public review and comment a decision that incorporates changes from prior comment or prior alternate. (Comments on Bilas/Neeper Alternate, pp. 1-2; Comments on D.99-11-052, p. 2.)
Response: Reject. The proposed rule is limited to substantive revisions that do "no more than make changes suggested in prior comments...or in a prior alternate...." Revisions of this type have already been subject to adequate public review and comment, and the public interest would not be well-served by delay for yet more public review and comment.
GTE Comments/Commission Responses
1. Supports definition of "alternate" advocated in comments by energy utilities. (Comments on D.99-11-052, p. 1.)
Response: Reject. See Response to Edison Comment #1.
2. Exempt from public review and comment a decision that incorporates changes from prior comment or prior alternate, provided that those changes had already been subject to public review and comment. (Comments on D.99-11-052, p. 2.)
Response: Reject. Suggested qualifying language is not needed.
3. When issuing revisions to a decision, Commission should include cover sheet stating "REVISED FROM [insert date] VERSION." Suggestion is solely an internal Commission procedure, and need not be set forth in the Rules of Practice and Procedure. (Comments on D.99-11-052, pp. 2-3.)
Response: Staff is continuing to work on identification procedures to more clearly mark changed text, pages, and entire versions of decisions. Agree that such identification procedures should not be adopted by rule.
ORA Comments/Commission Responses
1. Allow replies to comments on draft resolutions and alternates. (Comments on Draft Decision, pp. 1-2; Comments on Neeper Alternate, p. 2.)
Response: Agree. See Response to ORA Comment #1 (Part I of Appendix B).
2. Prefers definition of "alternate" that would include changes made by the presiding officer. (Comments on Neeper Alternate, p. 1.)
Response: Reject. See Response to Edison Comment #1.
3. Formalize by rule the scheduling treatment for alternates to resolutions. (Comments on Draft Decision, pp. 2-3.)
Response: See Response to ORA Comment #2 (Part I of Appendix B).
PG&E Comments/Commission Responses
1. Plain language of SB 779 supports Joint Energy Utilities' definition of "alternate." (Comments on Draft Decision, pp. 2-3.)
Response: Reject. The plain language of SB 779 refers to the Commission's usage in preparing its public agenda. "Alternate" as used by the Commission in so labeling an item on its public agenda is consistent with the definition proposed in the OIR and not with the definition advocated by the Joint Energy Utilities. See also Response to Edison's Comment #1.
2. Decisions and alternates should be "complete" when issued. (Comments on Draft Decision, pp. 3-4.)
Response: Reject. See Response to Joint Energy Utilities Comment #2 (Part I of Appendix B).
3. Allow replies to comments on draft resolutions and alternates. (Comments on Draft Decision, pp. 4-5.)
Response: Agree. See Response to ORA Comment #1 (Part I of Appendix B).
4. Decisions on requests for compensation and decisions authorizing disclosure of documents pursuant to subpoena should not be categorically subject to reduction or waiver of public review and comment. Requests for compensation sometimes generate significant opposition, while Commission decisions authorizing disclosure of, e.g., customer information or utility proprietary information should be subject to public review and comment except in unforeseen emergency situations. (Comments on Draft Decision, pp. 6-7.)
Response: Reject. For these two categories of decision, PG&E's argument essentially reiterates the Joint Energy Utilities' argument (in their Comment #8, summarized in Part I of Appendix B) that the Commission may reduce or waive comment only in those situations (such as emergencies or uncontested matters) where SB 779 expressly authorizes such reduction or waiver. These arguments would negate the Commission's authority, under SB 779, to establish additional categories of decisions subject to reduction or waiver of the comment period. With specific regard to decisions on compensation requests and on disclosure of documents pursuant to subpoena, the Commission concluded in the OIR (mimeo. at 6-7) that "waiver of the review and comment period will be appropriate for many, if not all, [such] decisions...." PG&E's argument does not undermine that conclusion. In the unusual case where public review and comment regarding such a decision may be appropriate, the rule adopted today would permit issuance of the decision for that purpose. See also Response to Joint Energy Utilities Comment #8 (Part I of Appendix B).
PG&E/Sempra Comments (filed jointly)/Commission Responses
1. Permit replies to comments on draft resolutions. (Comments on Bilas/Neeper Alternate, p. 1.)
Response: Agree. See Response to ORA Comment #1 (Part I of Appendix B).
2. Support revisions to proposed Rules 77.6(g) and 77.7(g) to permit reduction or waiver of public review and comment regarding alternates. (Comments on Bilas/Neeper Alternate, p. 1.)
Response: Agree. The proposed rules, with these revisions as set forth in D.99-11-052, are adopted in today's decision.
3. Support modifying the definition of "alternate" so as to include changes made by the presiding officer. (Comments on Bilas/Neeper Alternate, p. 1.)
Response: Reject. See Response to Edison Comment #1.
4. Agree with general concept underlying reduction or waiver on account of "public necessity." (Comments on Bilas/Neeper Alternate, pp. 1-2.)
Response: Agree. Proposed Rule 77.7(f)(9) adopted in today's decision.
PG&E/Sempra/Edison Comments (filed jointly)/Commission Responses
1. Support proposal to permit reply to comment on draft resolutions. (Comments on Neeper Alternate, pp. 1-2.)
Response: Agree. See Response to ORA Comment #1 (Part I of Appendix B).
2. Support modifying the definition of "alternate" so as to include changes made by the presiding officer. (Comments on Neeper Alternate, pp. 1-2.)
Response: Reject. See Response to Edison Comment #1.
Roseville Comments/Commission Responses
1. Allow reply to comment on draft resolutions. (Comments on Draft Decision, pp. 1-5; Comments on Neeper Alternate, p. 1.)
Response: Agree. See Response to ORA Comment #1 (Part I of Appendix B).
2. Deadline for reply to comment should be five days after due date for opening comments, and not five days after date such comments are actually filed. (Comments on Neeper Alternate, pp. 1-2.)
Response: Reject. The rule on reply to comment on resolutions (Rule 77.7(c)) sets a schedule parallel to that in existing Rule 77.5 regarding reply to comment on proposed decisions. This schedule is helpful to the Commission in responding to comments and replies, while it gives five days for parties to reply to comments in all situations.
Sempra Comments/Commission Responses
1. Definition of "alternate" that would not subject to public review and comment the presiding officer's substantive revisions is legally erroneous. (Comments on Draft Decision, pp. 1-4.)
Response: Reject. See Response to Edison Comment #1.
2. Allow reply to comment on draft resolution. (Comments on Draft Decision, pp. 1, 5-6.)
Response: Agree. See Response to ORA Comment #1 (Part I of Appendix B).
TURN Comments/Commission Responses
1. Allow reply to comment on draft resolution. (Comments on Bilas/Neeper Alternate, p. 4.)
Response: Agree. See Response to ORA Comment #1 (Part I of Appendix B).
2. Supports reduction of public review and comment period due to "public necessity," but does not support waiver of entire period in those circumstances. (Comments on Bilas/Neeper Alternate, pp. 3-4.)
Response: Reject in part. Commission must retain ability to entirely waive public review and comment where "public necessity" dictates.
3. Legislature understood the term "alternate" in the sense used by the Commission when Legislature enacted SB 779; the energy utilities' contrary interpretation is not a correct reading of the statute. (Comments on Bilas/Neeper Alternate, p. 4.)
Response: Agree. See also Response to Edison Comment #1.
4. A change made to a proposed decision in response to comment should not be circulated for comment yet again. (Comments on Bilas/Neeper Alternate, p. 4.)
Response: Agree. Rule 77.6(a), as amended in today's decision, does not require further public review and comment on account of such a change. See also Response to Edison Comment #5.
PART III: Response to Comments on Revised Draft Decision of ALJ Kotz and 2nd Neeper Alternate
Edison Comments/Commission Responses
1. Definition of "alternate" in Revised Draft Decision would violate Public Utilities Code § 311(e). (Comments on Revised Draft Decision, pp. 2-3.)
Response: Reject. See Response to Edison Comment #1 (Part II of Appendix B).
2. By adding (g) to proposed Rule 77.6, the 2nd Neeper Alternate would go far to resolve Edison's concerns regarding the definition of "alternate," however, public review and comment under (g) should be mandatory, not permissive. The word "generally" should be stricken from (g), and instead of the provisions in (g) for waiver or reduction of the comment period, the Commission should rely on existing Rule 87, under which the Commission may deviate from its procedures in particular instances. (Comments on 2nd Neeper Alternate, pp. 2-3.)
Response: Reject. Public review and comment under proposed Rule 77.6(g) applies in situations not covered by SB 779, and consequently the provisions for waiver or reduction of the comment period are more liberal than those in the statute. It is appropriate to include such specific provisions in Rule 77.6(g), as otherwise the parties and other interested persons would not have guidance from the Commission on how it will exercise its discretion to waive or reduce the comment period in these situations.
3. Adopting Edison's preferred definition of "alternate" would effectively reach the same result as the 2nd Neeper Alternate and would be less confusing. (Comments on 2nd Neeper Alternate, pp. 3-4.)
Response: Reject. The definition of "alternate" adopted in today's decision, consistent with both the Revised Draft Decision and the 2nd Neeper Alternate, properly construes SB 779 and furthers the public policies underlying the legislation.
PG&E Comments/Commission Responses
1. Limiting "alternate" to a substantive change not suggested in prior comments would effectively remedy potential problems that adopting PG&E's preferred definition (i.e., one that would also define a presiding officer's revision as an "alternate") might create. (Comments on Revised Draft Decision, pp. 2-3.)
Response: Reject in part. The Commission agrees that substantive changes suggested in prior comments are not alternates under SB 779 (no change necessary). However, the definition of "alternate" should be consistent with SB 779; a more inclusive definition (such as PG&E proposes) would needlessly constrain the Commission in its efforts to bring proceedings to a timely conclusion.
2. PG&E prefers the more inclusive definition of "alternate" circulated for comment by D.99-11-052, but if the choice is between the approach of the Revised Draft Decision and that of the 2nd Neeper Alternate, PG&E prefers the latter, except that PG&E believes the provisions requiring a public review and comment period for substantive revisions incorporating changes suggested in prior comments could be deleted. (Comments on 2nd Neeper Alternate, pp. 1-2.)
Response: The rules adopted in today's decision appropriately implement public review and comment under SB 779, with due recognition of the policies underlying that statute.
Sempra Comments/Commission Responses
1. Use of "generally" in proposed Rule 77.6(g) generates uncertainty. (Comments on 2nd Neeper Alternate, p. 2.)
Response: Reject. The term "generally" is used to signal the more liberal provisions in Rule 77.6(g) for waiver or reduction of the comment period, as compared to those applicable to "alternates." See also Response to Edison Comment #2 (Part III of Appendix B).
2. The 2nd Neeper Alternate and the Revised Draft Decision define "alternate" too narrowly in excluding revisions by a presiding officer and changes that merely incorporate changes suggested in prior comments or in a prior alternate. (Comments on 2nd Neeper Alternate, p. 2.)
Response: Reject. See Response to Edison Comment #1 and #5) (Part II of Appendix B.)
3. The Commission's "historical usage" of "alternate" would be a legitimate tool for interpretation of SB 779 only if the statute provided in its text a formulation of the purported "historical usage." (Comments on 2nd Neeper Alternate, p. 3.)
Response: Reject. As explained in D.99-11-052, Public Utilities Code § 311 clearly refers to the Commission's practice in listing "alternates" on its public agenda. This reference predates SB 779 and is not amended by that statute.
4. SB 779 can and should be harmonized with SB 960. (Comments on 2nd Neeper Alternate.)
Response: Agree. No change necessary, as the rules adopted in today's decision accomplish this.
(END OF APPENDIX B)
