Decision 01-10-036 October 10, 2001
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Application of Pacific Gas and Electric Company for verification, consolidation, and approval of costs and revenues in the transition revenue account. |
Application 98-07-003 (Filed July 1, 1998) |
|
In the Matter of The Revenue Adjustment Proceeding (RAP) application of San Diego Gas and Electric Company (U 902-E) for approval of 1) Consolidated changes in 1999 authorized revenue and revised rate components; 2) the CTC rate component and associated headroom calculations; 3) RGTCOMA balances; 4) PX credit computations; 5) disposition of various balancing/memorandum accounts; and 6) electric revenue allocation and rate design changes. |
Application 98-07-006 (Filed July 1, 1998) |
|
Application of Southern California Edison Company (U 338-E) to: 1) consolidate authorized rates and revenue requirements; 2) verify residual competition transition charge revenues; 3) review and dispose of amounts in various balancing and memorandum accounts; 4) verify regulatory balances transferred to the transition cost balancing account on January 1, 1998; and 5) propose rate recovery for Santa Catalina Island diesel fuel costs. |
Application 98-07-026 (Filed July 1, 1998; Petition for Modification filed January 25, 2001) |
ORDER MODIFYING DECISION (D.) 01-09-060,
AND DENYING REHEARING, AS MODIFIED
I. INTRODUCTION
In Decision (D.) 01-09-060, we issued an interim order, effective as of September 20, 2001, in which we suspended the right to enter into new contracts or agreements for direct access after that date, and reserved for subsequent consideration and decision matters related to the effect to be given to all contracts executed or agreements entered into on or before the effective date, including renewals of such contracts. This decision was in response to the mandates set forth in Assembly Bill No. 1, First Extraordinary Session ("AB 1 X"). (See Pub. Util. Code, §80110; see also, Stats. 2001 (1st Extraordinary Sess.), ch. 4, p. 14.)
The following parties filed timely applications for rehearing of this decision: (1) The Newark Group, Inc. ("Newark"); (2) AES Newsenergery, Inc. ("AES"); (3) The Alliance for Retail Energy Markets, Association of California Water Agencies - Utility Service Agency, Western Power Trading Forum, AB&I Foundry, California Cast Metals Association, California League of Food Processors, California Retailers Association, Community College League of California, DDU Enterprises, Immanuel Industries, Lam Research, SPURR-REMAC, Standard Metal Products, Tricon Global Restaurants, Douglas Adair, Frank Ancona, Chris Annunziato, Danny Corrales, Paul Delaney, Joan Delong, Steve Elliot, Lawrence Guarnieri, Don Hallmark, Jr., Benny Munoz, Monica Murphy, Steven Pellnitz, Allan Perez and Pete Turpel (jointly, "AREM"); (4) California Manufacturers & Technology Association, California Industrial Users and California Large Energy Consumers Association (jointly, "CMTA"); (5) University of California and California State University ("UC/CSU"); (6) Commonwealth Energy Corporation ("Commonwealth").
In its rehearing application, Newark argues that D.01-09-060 is unlawful because the decision does not contain adequate findings of fact and is not supported by substantial evidence and the Commission violated federal and state procedural due process by allegedly failing to provide adequate notice to interested parties and to conduct an evidentiary hearing.
In its rehearing application, AES raises arguments similar to Newark. Additionally, AES alleges that retroactive suspension would be unconstitutional, as violations of the Contract, Due Process and Takings clauses of the federal and state constitutions.
In their joint rehearing application, AREM allege the following: (1) The Commission violated federal and state constitutional provisions for due process and Public Utilities Code Sections 1708 and 1708.5(f) by failing to conduct an evidentiary hearing before suspending direct access; (2) the findings of fact in D.01-09-060 are not sufficient to justify suspending direct access for the reasons stated in the decision and are not supported by the record; (3) the Commission impermissibly relies on evidence outside the record in violation of due process; (4) D.01-09-060 interferes with interstate commerce in violation of Section 8 of Article I of the U.S. Constitution; (5) and the Commission is prohibited from considering the retroactive suspension of direct access by Water Code Section 80110, and any retroactive suspension would be inconsistent with the Legislature's intent in enacting this statutory provision, and would be in violation of the contract and takings clauses of the federal and state constitutions; (6) the Commission has impermissibly converted a ratemaking proceeding into a quasi-legislative proceeding in violation of Public Utilities Code Section 1701.1(a) by not having evidentiary hearings; and (7) D.0-09-060 is inconsistent with AB 9 XX.
In their joint rehearing application, CMTA raise the same arguments as Newark regarding the sufficiency of findings of fact and the lack of substantial evidence to support the decision. Also, like AREM, CMTA argues that the Commission violated Public Utilities Code Section 1708.5(f) by failing to conduct evidentiary hearings prior to suspending direct access.
In their joint rehearing application, UC/CSU argue that there is no factual basis or evidentiary support for D.01-09-060 to the extent that it allows or requires utilities to refuse to process Direct Access Service Requests ("DASRs") for an account under a pre-September 20 contract, and if that is the effect of the decision, then the Commission should have held evidentiary hearings. They also ask the Commission to clarify that the utilities are required to continue to process DASRs for all accounts under an existing contract. They further claim that the decision errs because it threatens to retroactively suspend direct access, which is contrary to law and in excess of the Commission's authority, and would violate the federal and state constitutional prohibitions against the impairment of contracts.
In its rehearing application, Commonwealth argues that the Commission should have had evidentiary hearings to consider the impact of its decision on electric service providers ("ESPs") and whether less onerous alternatives could have been adopted. Specifically, it believes that D.01-09-060 errs by not allowing customers whose contracts expire to renew their contracts with their ESP; not allowing certain customers to procure "green" power without restriction; and not allowing customers who are new to California to procure power from ESPs. It also alleges that the suspension of direct access constitutes an unconstitutional taking.
Responses were due on October 5, 2001. Energy Producers and Users Coalition filed in support of AREM's application for rehearing. The California Department of Water Resources ("DWR") submitted comments in response to the rehearing applications and in support of D.01-09-060.
The instant decision resolves the applications for rehearing. We have carefully considered those applications and the responses thereto. Although we do not discuss each of the numerous allegations that the rehearing applicants assert justify rehearing, all bona fide allegations have been considered.1 Herein we decide that applicants' allegations of error, whether or not discussed, do not show good cause for rehearing. While we conclude that rehearing is not warranted, we do recognize certain errors or ambiguities in the Decision that require correction or clarifying modification. Therefore, our order today modifies D.01-09-060 consistent with our discussion below.
1 For example, Commonwealth's claim that a suspension of direct access constitutes an unconstitutional taking of its property is made without any specificity or discussion. (See Commonwealth's Application for Rehearing, p. 3 [as numbered], fn. 1. Since there are no page numbers in Commonwealth's application for rehearing, they have been numbered for purpose of referring to them.) Thus, it is not a bona fide rehearing allegation that comports with the requirements of Rule 86.1 of the Commission's Rules of Practice and Procedure, which provides:
"Applications for rehearing shall set forth specifically the grounds on which applicant considers the order or decision of the Commission to be unlawful or erroneous. Applicants are cautioned that vague assertions as to the record or the law, without citation, may be accorded little attention. The purpose of an application for rehearing is to alert the Commission to an error, so that error may be corrected expeditiously by the Commission." (Code of Regs., title 20, §86.1.)
(OII Re Mobile Telephone Service and Wireless Communications [D.95-03-043] (1995) 59 Cal.P.U.C.2d 91, 102, fn. 4, 1995 Cal.CPUC LEXIS 288; see also, Pub. Util. Code, §1732, which requires rehearing applicants to present their allegations with specificity.)
Another example of a claim that does not comport with this rule is the unspecified and unsubstantiated broad sweeping claim made by both Newark and AES that the Commission improperly relied upon "extra-judicial statements made by the Governor or the State Treasurer or pressure from other external sources that influenced its decision-making processes." (Newark's Application for Rehearing, p. 5; AES's Application for Rehearing, p. 2.)
