5. Appeal/Request for Review of Presiding Officer's Decision (POD)

On September 4, 2001, Zacky filed an appeal of the POD. Edison filed a response to Zacky's appeal on September 19, 2001.

We have carefully considered the appeal and find Zacky's arguments without merit. We also note that most of the issues raised by Zacky on appeal do not address errors of law or fact and are not a basis for appeal.²⁵

However, in order to clarify our decision, we shall address Zacky's arguments below.²⁶ Zacky states on appeal that:

· The POD fails to consider alternatives to Edison's tariff interpretation. However, the POD did consider and analyze possible interpretations of the tariff raised by both parties,²⁷ but concludes that under the plain language of Rule 1,²⁸ the Sheila Street facility does not qualify for an agricultural rate.

· The POD ignores all evidence of legislative and regulatory intent in interpreting Rule 1. However, under the principles of statutory construction, the Commission must first interpret Rule 1 according to its plain language. Since we found that the plain language of Rule 1 indicates an agricultural rate applies only when the electricity is used in connection with the production, harvesting, and preparation for market of agricultural and horticultural products, including poultry and livestock, on land owned by the person for the production of agricultural products, the Commission is not required to consider further evidence of legislative and regulatory intent.

Further, the POD did consider both the testimony of Michael Boccadoro regarding the legislative intent behind the adoption of Section 744 and previous Commission decisions regarding a PG&E agricultural tariff, Harris Farms and Producer's Dairy, cited by Zacky. We correctly determined that under California law, Mr. Boccadoro's testimony is not determinative of the Legislature's intent in enacting Section 744 and therefore was not entitled to great weight in our decision. Moreover, Section 744(a) relates to interruptible service tariffs and does not address whether Rule 1 would apply to a poultry processing plant that is not located on the same property at which the chickens are grown.




We also correctly determined that Harris Farms and Producer's Dairy do not apply here, because these decisions interpret a PG&E agricultural tariff which has significantly different language from Edison's Rule 1.

· The POD relies on isolated statutory definitions from the California Food and Agriculture Code in reaching its outcome. However, while the POD discussed a few Food and Agriculture Code definitions of terms similar to those used in Rule 1, the POD specifically noted that these sections are not binding on the Commission. The outcome of the POD is not based on these statutory definitions, but on the plain language of the tariff and a reasonable, common-sense construction of the tariff in view of the activities conducted at the Sheila Street facility.²⁹ Further, the additional Food and Agriculture Code definitions discussed by Zacky on appeal were, with one exception, not previously addressed by Zacky and do not appear to apply to this case.

· The POD did not include Section 740.9 in its consideration of statutes that include terms similar to Rule 1. However, Section 740.9 did not become effective until April 12, 2001, well after this case was submitted, and Zacky did not ask the Commission to take official notice of this new statute in the POD. Section 740.9 defines "agricultural processors" solely in relation to permitting them to participate in optional binding curtailment programs and therefore does not apply here. Zacky's argument that Section 740.9 represents a more expansive legislative intent to include processors within the scope of agricultural tariffs is entirely without merit.

· The POD misrepresents the Commission's position in D.82-12-094. However, the POD does not rely on D.82-12-094 in determining whether Zacky is entitled to an agricultural rate for the Sheila Street facility, but merely notes that our interpretation of Rule 1 in the POD is consistent with the Commission's previous statement in D.82-12-094. The outcome of the POD is based on a thorough and totally independent analysis of Rule 1.

· The POD bases its conclusion that denying Zacky an agricultural rate for its Sheila Street facilities does not violate Section 453 on facts not in evidence. This statement is inaccurate. In order to establish a violation of Section 453, Zacky was required to present evidence that it had suffered prejudice or disadvantage in comparison to other similarly situated agricultural businesses. Zacky did not present such evidence and therefore failed to meet its burden of proof. Zacky's statement on appeal that there are no agricultural businesses at which chickens are slaughtered on the same property at which they were raised supports the POD's determination that Zacky has not suffered prejudice as a "vertically integrated agricultural operation" based on the geographic location at which the preparation for market activities occur. The POD reasonably concluded based on evidence in the record that an urban facility at which chickens are not grown but are slaughtered and prepared for market is a different type of operation than a farm at which chickens are only grown and raised. The application of different rates to these two types of operations is not unlawful discrimination under Section 453 because they are not similarly situated.

· The POD takes inconsistent positions on the meaning and relevance of the term "general agricultural purposes" by discussing both the plain language of Rule 1 and other evidence related to the characteristics of the Sheila Street facility, such as its location and zoning. However, the POD clearly indicates that the interpretation of Rule 1 depends on its plain language but also properly considers evidence regarding the characteristics and function of the Sheila Street facility to determine whether Zacky is engaged in the "production" or the "preparation for market" of chickens at the facility. However, to clarify this issue, we have amended the first sentence of the second paragraph on page 12 which read: "In short, neither the physical characteristics of the Sheila Street facility itself, nor the zoning and infrastructure of the facility's location, suggest an agricultural use," to read: "In short, neither the physical characteristics of the Sheila Street facility itself, nor the functions performed at the facility, suggest an agricultural use."

Zacky's appeal is denied.