7. Assignment of Proceeding
Michael R. Peevey is the Assigned Commissioner. Burton W. Mattson is the assigned ALJ.
1. The Commission directed CPSD to draft a proposal that would provide greater detail on the citation program implemented by GO 167 and, if changes should be made to GO 167, to propose such changes via a petition to modify D.04-05-018 and GO 167.
2. The petition is not untimely, and it is reasonable to consider the petition.
3. The changes proposed by CPSD to GO 167 provide desirable and necessary procedural detail; benefit all stakeholders by providing clarity in, and streamlining of, the administrative process; provide desirable consistency with other Commission citation programs; and implement efficiencies in the program.
4. CPSD's proposals do not change the fundamental nature of the program.
5. CPSD's proposals neither create confusion nor introduce unnecessary details.
6. Adherence to the standards and obligations in GO 167 is required whether or not the generator intended a violation, and that unconditioned requirement is already reflected in four of five specified violations in Appendix F of GO 167.
1. The petition for modification should not be summarily denied.
2. The petition for modification should be granted.
3. The proposed changes do not shift the burden of proof, nor do they create a screening process for appeals.
4. There is no substantive difference in the remedies available when an appeal is lodged under either existing or proposed § 13.3.4, but facts and argument at hearing may mitigate or enhance the penalty, while placing a cap on the level of a fine prior to consideration of an appeal would unreasonably prejudge those facts and arguments.
5. CPSD should not be required to make judgments requiring an application of the legal doctrine of negligence before assessing a scheduled fine for a specified violation.
6. Coalition, GAOs, and CPSD should not be ordered to engage in a meet and confer session before the petition for modification is considered.
7. This proceeding should be closed.
8. This order should be effective today so that the improved enforcement protocols are effective without delay.
FINAL ORDER
IT IS ORDERED that:
1. The July 10, 2007 Petition to Modify Decision 04-05-018 and General Order (GO) 167 filed on July 10, 2007 by the Commission's Consumer Protection and Safety Division (CPSD) is granted. GO 167, § 13.3 and Appendix F are modified as shown in Attachment B.
2. Within 15 days of the date this order is mailed, the CPSD Director shall notify each known Generating Asset Owner subject to GO 167 of this decision, and post a revised GO 167 on the Commission's web site.
3. Rulemaking 02-11-039 is closed.
This order is effective today.
Dated November 6, 2008, at San Francisco, California.
MICHAEL R. PEEVEY
President
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
TIMOTHY ALAN SIMON
Commissioners
ATTACHMENT A
RULEMAKING 02-11-039
PROPOSED CHANGES TO GENERAL ORDER 167
Changes are proposed to § 13.3 and Appendix F of General Order 167 as shown below. Underlined text indicates additions and strikeout text indicates deletions.
A. CPSD Proposes the Following Changes to § 13.3:
13.3 Imposition of Fines for Specified Violations
13.3.1 Specified Violations. For specified Violations of this General Order, the Director of CPSD and his/her designee may assess a scheduled fine or, in the alternative, proceed with any remedy otherwise available to CPSD or the Commission. Scheduled fines may be assessed by CPSD only for the Violations referenced in subsection 13.3.2 of this General Order. CPSD shall notify the Generating Asset Owner, in writing, of any specified Violations and assessed fines, and shall include notice of the right to contest the fine as set forth in subsections 13.3.3 and 13.3.4 and 13.3.8 of this General Order. No fine assessed by CPSD pursuant to this subsection shall become payable if contested by the Generating Asset Owner pursuant to subsection 13.3.4.
13.3.2 Schedule of Fines. The Specified Violations and the corresponding fines that may be assessed are set forth in Appendix F to this General Order. The Commission may modify this schedule of fines no earlier than 30 days after providing reasonable notice and affording interested persons with an opportunity to comment.
13.3.3 Acceptance of Assessed Fine. A Generating Asset Owner may either accept or appeal contest the assessment of a scheduled fine. In the event the Generating Asset Owner accepts the assessment and elects to pay the scheduled fine in lieu of an appeal formal proceeding, the Generating Asset Owner shall so notify CPSD in writing within 30 days of the assessment, shall pay the fine in full, and shall bring itself into compliance with the applicable provision(s) of the General Order within 30 days of the written acceptance. Fines shall be submitted to CPSD for payment into the State Treasury to the credit of the General Fund. Fines are delinquent if not paid within 30 days of the Generating Asset Owner's acceptance; and, thereafter, the balance of the fine bears interest at the legal rate for judgments.
13.3.4 Appeal Contest of Citation Assessed Fine. If a Generating Asset Owner appeals contests the citation and assessment of a scheduled fine, the Generating Asset Owner must file its Notice of Appeal contest within 30 days of the date of the citation assessment. In the event of such a contest, staff shall, at its discretion, proceed with evidentiary hearings on the appeal, or withdraw the citation where facts and circumstances warrant such action and provide a written notice of withdrawal to the Generating Asset Owner. offer of the scheduled fine and proceed to any remedy otherwise available to the Commission, or shall withdraw the assessed fine and proceed no further, depending on the circumstances of each case. In the event of an appeal, any remedy available may be imposed, and the remedy shall not be mandated or limited to the scheduled fine.
If the matter proceeds to a more formal proceeding before the Commission, neither CPSD in its investigation nor the Commission will be limited to the Specified Violations or the schedule of fines set forth in Appendix F to this General Order.
13.3.5 Default. If a Generating Asset Owner (a) notifies CPSD of acceptance of a scheduled fine and fails to pay the full amount of the fine within 30 calendar days of the date of the written acceptance of the fine; or (b) fails to notify CPSD of acceptance of a scheduled fine and fails to serve a written notice of appeal on the Director of CPSD in the manner and time required, the Generating Asset Owner shall be in default, and the fine contained in the citation shall become final. Upon default, any unpaid balance of a citation fine shall accrue interest at the legal rate of interest for judgments, and CPSD and the Commission may take any action provided by law to recover unpaid penalties and ensure compliance with applicable statutes and Commission orders, decisions, rules, directions, demands or requirements.
13.3.6 Form and Content of Citations. The Director of CPSD or his/her designee is authorized to draft a citation and present it to the Generating Asset Owner. If after investigation, CPSD finds violations of any of the Specified Violations, CPSD may issue a citation and levy the corresponding fine set forth in Appendix F to this General Order. Citations shall include the following:
13.3.6.1 Citations shall clearly delineate the alleged violations and fine amount and shall summarize CPSD's evidence.
13.3.6.2 Citations shall include an explanation of how to file an appeal, including an explanation of the Generating Asset Owner's right to have a hearing, to have a representative at the hearing, and to request a transcript of the hearing.
13.3.6.3 Citations shall be supported by evidence documenting the alleged violation and this information, if not voluminous, shall be provided with the citation. If the evidence is voluminous, CPSD may summarize the evidence and make it available for timely inspection by the Generating Asset Owner.
13.3.7 Service of Citations. Citations shall be sent by first class mail to the Generating Asset Owner's authorized representative as set forth in the most recent verified statement or certification records on file with the Commission, or the agent for service of process of the corporation or LLC or other business entity filed with the Secretary of State of California.
13.3.8 Appeals will be conducted as follows:
13.3.8.1 The appeal shall be brought by Filing a written Notice of Appeal upon the Director of CPSD within 30 days from the date of the citation. The Notice of Appeal must indicate the grounds for the appeal.
13.3.8.2 CPSD shall promptly advise the Chief Administrative Law Judge upon receipt of a timely Notice of Appeal. The Chief Administrative Law Judge shall designate an Administrative Law Judge to hear appeals under this resolution.
13.3.8.3 Upon advice from CPSD that a citation has been appealed, the Chief Administrative Law Judge shall forward the matter to the assigned Administrative Law Judge, who shall promptly set the matter for hearing. The Administrative Law Judge may, for good cause shown or upon agreement of the parties, grant a reasonable continuance of the hearing.
13.3.8.4 Appeals of citations shall be heard in the Commission's San Francisco or Los Angeles hearing rooms on regularly scheduled days. Appeals shall be calendared accordingly, except that a particular matter may be re-calendared at the direction of the Administrative Law Judge.
13.3.8.5 The respondent may order a transcript of the hearing, and shall pay the cost of the transcript in accordance with the Commission's specified procedures.
13.3.8.6 The respondent may be represented at the hearing by an attorney or other representative, but any such representation shall be at the respondent's expense.
13.3.8.7 At an evidentiary hearing, CPSD bears the burden of proof and accordingly shall open and close. The Administrative Law Judge may, in his or her discretion to better ascertain truth, alter the order of presentation. Formal rules of evidence do not necessarily apply, and all relevant and reliable evidence may be received in the discretion of the Administrative Law Judge.
13.3.8.8 Ordinarily, the case shall be submitted at the close of the hearing. The Administrative Law Judge, upon a showing of good cause, may keep the record open for a reasonable period to permit a party to submit additional evidence or argument.
13.3.8.9 The Administrative Law Judge shall issue an order resolving the appeal not later than 30 days after the appeal is submitted, and the order shall be placed on the first available agenda, consistent with the Commission's applicable rules.
13.3.9 Ex Parte Communications. From the date that CPSD issues a citation to and including the date when the final order is issued, neither the Generating Asset Owner nor CPSD staff, or any agent or other person acting on behalf of the Generating Asset Owner or CPSD, may communicate regarding the appeal, orally or in writing, with a Commissioner, Commissioner's advisor, or Administrative Law Judge, except as expressly permitted under these procedures.
B. CPUC Proposes the Following Changes to Appendix F:
Violation |
Fine |
1. Failure to file a formal document at the time or in the manner required by this General Order. These documents are Initial Certification, Recertification, Notice of Material Change, Maintenance Plan Summary, Operation Plan Summary, Update to Maintenance Plan Summary, and Update to Operation Plan Summary. |
$1,000 per incident plus $500 per day |
2. Failure to maintain specific documents as required by this General Order. These documents are Maintenance Plan, Operation Plan, Logbook (Thermal), and Logbook (Hydroelectric). |
$5,000 per incident. |
3. Failure to respond to an Information Requirement set forth in Section 10.0 of this General Order. |
$1,000 per incident plus $500 per day for the first ten calendar days the Information Requirement was not satisfied after being requested and $1,000 for each day thereafter. |
4. |
$2,000 per incident plus $500 per day for the first ten days the inaccuracy was not corrected and $1,000 for each day thereafter. |
5. Repeated violation of any requirement listed in this schedule. |
200% of the fine that would be imposed for a first-time violation. |
(END OF ATTACHMENT A)
ATTACHMENT B
RULEMAKING 02-11-039
ADOPTED CHANGES TO GENERAL ORDER 167
Changes are made to § 13.3 and Appendix F of General Order 167 as provided below:
A. Existing § 13.3 is deleted and replaced with the following new §13.3:
13.3 Imposition of Fines for Specified Violations
13.3.1 Specified Violations. For specified Violations of this General Order, the Director of CPSD and his/her designee may assess a scheduled fine or, in the alternative, proceed with any remedy otherwise available to CPSD or the Commission. Scheduled fines may be assessed by CPSD only for the Violations referenced in subsection 13.3.2 of this General Order. CPSD shall notify the Generating Asset Owner, in writing, of any specified Violations and assessed fines, and shall include notice of the right to contest the fine as set forth in subsections 13.3.4 and 13.3.8 of this General Order. No fine assessed by CPSD pursuant to this subsection shall become payable if contested by the Generating Asset Owner pursuant to subsection 13.3.4.
13.3.2 Schedule of Fines. The Specified Violations and the corresponding fines that may be assessed are set forth in Appendix F to this General Order. The Commission may modify this schedule of fines no earlier than 30 days after providing reasonable notice and affording interested persons with an opportunity to comment.
13.3.3 Acceptance of Assessed Fine. A Generating Asset Owner may either accept or appeal the assessment of a scheduled fine. In the event the Generating Asset Owner accepts the assessment and elects to pay the scheduled fine in lieu of an appeal, the Generating Asset Owner shall so notify CPSD in writing within 30 days of the assessment, shall pay the fine in full, and shall bring itself into compliance with the applicable provision(s) of the General Order within 30 days of the written acceptance. Fines shall be submitted to CPSD for payment into the State Treasury to the credit of the General Fund. Fines are delinquent if not paid within 30 days of the Generating Asset Owner's acceptance; and, thereafter, the balance of the fine bears interest at the legal rate for judgments.
13.3.4 Appeal of Citation. If a Generating Asset Owner appeals the citation and assessment of a scheduled fine, the Generating Asset Owner must file its Notice of Appeal within 30 days of the date of the citation. In the event of such a contest, staff shall, at its discretion, proceed with evidentiary hearings on the appeal, or withdraw the citation where facts and circumstances warrant such action and provide a written notice of withdrawal to the Generating Asset Owner. In the event of an appeal, any remedy available may be imposed, and the remedy shall not be mandated or limited to the scheduled fine.
13.3.5 Default. If a Generating Asset Owner (a) notifies CPSD of acceptance of a scheduled fine and fails to pay the full amount of the fine within 30 calendar days of the date of the written acceptance of the fine; or (b) fails to notify CPSD of acceptance of a scheduled fine and fails to serve a written notice of appeal on the Director of CPSD in the manner and time required, the Generating Asset Owner shall be in default, and the fine contained in the citation shall become final. Upon default, any unpaid balance of a citation fine shall accrue interest at the legal rate of interest for judgments, and CPSD and the Commission may take any action provided by law to recover unpaid penalties and ensure compliance with applicable statutes and Commission orders, decisions, rules, directions, demands or requirements.
13.3.6 Form and Content of Citations. The Director of CPSD or his/her designee is authorized to draft a citation and present it to the Generating Asset Owner. If after investigation, CPSD finds violations of any of the Specified Violations, CPSD may issue a citation and levy the corresponding fine set forth in Appendix F to this General Order. Citations shall include the following:
13.3.6.1 Citations shall clearly delineate the alleged violations and fine amount and shall summarize CPSD's evidence.
13.3.6.2 Citations shall include an explanation of how to file an appeal, including an explanation of the Generating Asset Owner's right to have a hearing, to have a representative at the hearing, and to request a transcript of the hearing.
13.3.6.3 Citations shall be supported by evidence documenting the alleged violation and this information, if not voluminous, shall be provided with the citation. If the evidence is voluminous, CPSD may summarize the evidence and make it available for timely inspection by the Generating Asset Owner.
13.3.7 Service of Citations. Citations shall be sent by first class mail to the Generating Asset Owner's authorized representative as set forth in the most recent verified statement or certification records on file with the Commission, or the agent for service of process of the corporation or LLC or other business entity filed with the Secretary of State of California.
13.3.8 Appeals. Appeals will be conducted as follows:
13.3.8.1 The appeal shall be brought by Filing a written Notice of Appeal upon the Director of CPSD within 30 days from the date of the citation. The Notice of Appeal must indicate the grounds for the appeal.
13.3.8.2 CPSD shall promptly advise the Chief Administrative Law Judge upon receipt of a timely Notice of Appeal. The Chief Administrative Law Judge shall designate an Administrative Law Judge to hear appeals under this resolution.
13.3.8.3 Upon advice from CPSD that a citation has been appealed, the Chief Administrative Law Judge shall forward the matter to the assigned Administrative Law Judge, who shall promptly set the matter for hearing. The Administrative Law Judge may, for good cause shown or upon agreement of the parties, grant a reasonable continuance of the hearing.
13.3.8.4 Appeals of citations shall be heard in the Commission's San Francisco or Los Angeles hearing rooms on regularly scheduled days. Appeals shall be calendared accordingly, except that a particular matter may be re-calendared at the direction of the Administrative Law Judge.
13.3.8.5 The respondent may order a transcript of the hearing, and shall pay the cost of the transcript in accordance with the Commission's specified procedures.
13.3.8.6 The respondent may be represented at the hearing by an attorney or other representative, but any such representation shall be at the respondent's expense.
13.3.8.7 At an evidentiary hearing, CPSD bears the burden of proof and accordingly shall open and close. The Administrative Law Judge may, in his or her discretion to better ascertain truth, alter the order of presentation. Formal rules of evidence do not necessarily apply, and all relevant and reliable evidence may be received in the discretion of the Administrative Law Judge.
13.3.8.8 Ordinarily, the case shall be submitted at the close of the hearing. The Administrative Law Judge, upon a showing of good cause, may keep the record open for a reasonable period to permit a party to submit additional evidence or argument.
13.3.8.9 The Administrative Law Judge shall issue an order resolving the appeal not later than 30 days after the appeal is submitted, and the order shall be placed on the first available agenda, consistent with the Commission's applicable rules.
13.3.9 Ex Parte Communications. From the date that CPSD issues a citation to and including the date when the final order is issued, neither the Generating Asset Owner nor CPSD staff, or any agent or other person acting on behalf of the Generating Asset Owner or CPSD, may communicate regarding the appeal, orally or in writing, with a Commissioner, Commissioner's advisor, or Administrative Law Judge, except as expressly permitted under these procedures.
B. Existing Appendix F is deleted and replaced with the following new Appendix F:
Appendix F: Fines For Specified Violations
Violation |
Fine |
1. Failure to file a formal document at the time or in the manner required by this General Order. These documents are Initial Certification, Recertification, Notice of Material Change, Maintenance Plan Summary, Operation Plan Summary, Update to Maintenance Plan Summary, and Update to Operation Plan Summary. |
$1,000 per incident plus $500 per day each day thereafter. |
2. Failure to maintain specific documents as required by this General Order. These documents are Maintenance Plan, Operation Plan, Logbook (Thermal), and Logbook (Hydroelectric). |
$5,000 per incident. |
3. Failure to respond to an Information Requirement set forth in Section 10.0 of this General Order. |
$1,000 per incident plus $500 per day for the first ten calendar days the Information Requirement was not satisfied after being requested and $1,000 for each day thereafter. |
4. Submission of inaccurate information in response to an information request under Section 10.0 of this General Order. |
$2,000 per incident plus $500 per day for the first ten days the inaccuracy was not corrected and $1,000 for each day thereafter. |
5. Repeated violation of any requirement listed in this schedule. |
200% of the fine that would be imposed for a first-time violation. |
(END OF ATTACHMENT B)
