Decision 02-04-065 April 22, 2002
Before The Public Utilities Commission Of The State Of California
Order Instituting Rulemaking into Implementation of Public Utilities Code Section 390. |
Rulemaking 99-11-022 (Filed November 18, 1999) |
ORDER DENYING REHEARING OF DECISION (D.) 02-02-028 FILED BY SOUTHERN CALIFORNIA EDISON COMPANY
In this decision, we dispose of the application for rehearing of Decision (D.) 02-02-028 filed by Southern California Edison Company (Edison). In D.02-02-028 (Rehearing Decision), we denied the rehearing applications filed by various qualifying facilities and their associations (jointly, "QF Parties") of D.01-03-067. D.01-03-067 modified the transitional short-run avoided cost formula (SRAC Formula) for each utility to calculate its SRAC payments to qualifying facilities (QFs).1 Among other things, D.01-03-067 established a procedure to replace the Topock index with the Malin index.
In the Rehearing Decision, we modified D.01-03-067 to clarify our decision to replace the Topock index with the Malin index. Rehearing of D.01-03-067, as modified, was denied. On March 11, 2002, Edison filed an application for
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limited rehearing of the Rehearing Decision, contending that the modifications made to D.01-03-067 were not supported by record evidence.2
The California Cogeneration Council (CCC) filed a response to Edison's rehearing application on March 26, 2002.
Upon careful consideration of all the arguments presented, we conclude that Edison has failed to demonstrate good cause for granting rehearing. Accordingly, this order denies Edison's rehearing application.
I. Edison's Rehearing Application
A threshold issue in this case is whether Edison properly filed an application for rehearing. Normally, a party may not file an application for rehearing of a decision on rehearing. (Toward Utility Rate Normalization v. Public Utilities Com. (1978) 22 Cal.3d 529, 536-37.) The California Supreme Court has concluded that Public Utilities Code section 1756 implicitly appears to foreclose an application for rehearing of a decision on rehearing. (Id. at p. 537.) However, we have previously recognized that an exception may be made when "it is the first opportunity that any party has had to appeal this issue." (Ortega v. AT&T Communications (1997) [D.97-12-052] 77 Cal. P.U.C.2d 297, 298.) Edison argues that the same situation exists in this case because the Rehearing Decision adopted a new resolution to a contested issue when it added new findings of fact and conclusions of law. (Edison App., at p. 5.) Accordingly, it asserts that its rehearing application is properly filed.
We disagree. The modifications made to D.01-03-067 in the Rehearing Decision did not adopt a new resolution, since it did not change our decision to replace the Topock index with the Malin index. Instead, the modifications merely clarified our decision to use the Malin index. This is not a new issue, as parties have had prior opportunity to comment on the use of the Malin index.3 Accordingly, Edison's rationale is not a basis for concluding that its rehearing application is properly filed.
While we disagree with Edison's rationale, we have concluded that Edison's rehearing application has been properly filed on different grounds. The Rehearing Decision is the second rehearing decision of D.01-03-067. The first rehearing decision of D.01-03-067, D.01-12-025, disposed of applications for rehearing filed by Edison and Pacific Gas and Electric Company. Edison had filed a timely Petition for Writ of Review of D.01-03-067 and D.01-12-025 in the California Court of Appeal, Second Appellate District, on January 14, 2002. Therefore, under the Public Utilities Code, Edison has already filed for rehearing and sought appellate review of its rehearing decision disposing of D.01-03-067.
There are no provisions for a party to seek appellate review of a second rehearing decision, which addresses different issues, of the same underlying decision. Indeed, section 1756 does not appear to permit such a challenge. Edison currently has a petition for writ of review of a rehearing decision disposing of D.01-03-067. There are no provisions in the California Rules of Court to permit a petitioner to amend its petition to add a new issue. Additionally, under the Public Utilities Code, Edison would be foreclosed from doing so, since it had not raised this specific challenge in its prior rehearing application. (Pub. Util. Code § 1732.) Consequently, Edison's only means of challenging the Rehearing Decision would be through an application for rehearing. Accordingly, Edison properly filed for rehearing of the Rehearing Decision.
1 The transitional SRAC Formula was adopted in D.96-12-028 and is specified in Public Utilities Code section 390(b). 2 On the same date that Edison filed its rehearing application at the Commission, three QF parties, the California Cogeneration Council (CCC), the County of Los Angeles (County) and the Independent Energy Producers Association (IEP) filed separate Petitions for Writ of Review of D.01-03-067 and D.02-02-028 in the California Court of Appeal. CCC and County filed in the Second Appellate District, and IEP filed in the Third Appellate District. On April 4, 2002, the California Supreme Court ordered IEP's Petition transferred to the Second Appellate District. The Commission, Edison, CCC, County and IEP have entered into stipulations to hold these three Petitions for Writ of Review, as well as a related Petition for Writ of Review filed by Edison on January 14, 2002, in abeyance until May 10, 2002. 3 This is different than the situation in Ortega. In that case, the rehearing decision contained language interpreting federal legislation that had become effective after the close of the record in the proceeding. Therefore, parties had had no prior opportunity to comment on the federal legislation.
