7. Comments on Draft Decisions
A. Comments on Commissioner Wood's Draft Decision
On October 29, 2003, the draft decision of Commissioner Carl Wood was filed and served on parties in accordance with Pub. Util. Code § 311( g)(1) and Rule 77.7 of the Commission's Rules of Practice and Procedure. Comments were filed and served on November 18, 2003, by PG&E, SCE, SDG&E, Mirant, Reliant, Elk Hills, DENA, AES, WCP, and the Western Power Trading Forum. Reply comments were filed and served on November 24, 2003, by WCP.
Based on the comments and reply comments to Commissioner Wood's draft decision, we make several changes that streamline the program and moderate the cost and burden on covered facilities and the Commission, as reflected in the order we adopt here. For example, we eliminate the need to enter limited information when some data is unavailable, seek cost-effectiveness information for our consideration in possible future adoption of a common logbook format, eliminate consideration of remote access to data in real-time, increase the MW size (from 10 to 50 MW) for entities to prepare a compliance document and submit a verified statement,37 and remove the delegation of authority to the CPSD Director to modify the criteria for filing.38 We also clarify several points, such as implementation and enforcement when a covered facility is located out-of-state or owned by several entities, and the Commission's authority to interpret, implement and enforce its own decisions.
At the same time, however, we decline to adopt the recommendation to defer this and other Commission decisions until the Committee has completed adoption of all standards, and the Commission can issue one implementation and enforcement order. The Committee is adopting standards over time, but implementation and enforcement should not wait. A standard for the keeping of records is relatively straightforward. The Legislature intended program implementation with some degree of urgency. The best implementation is after reasonable consideration of parties' comments on each standard as adopted.
We also make limited changes based on comments filed March 18, 2004, in this proceeding regarding the draft decision to adopt a General Order.39 In particular, comments suggest that some respondents may be confused between the requirements for a compliance document (retained at the generation facility site) and a verified statement (filed with the CPSD Director). We incorporate changes in both this decision and the General Order decision that clarify the requirements related to the document and statement.
7.1. Data Retention Period
In comments on the draft decision, SCE recommends that the timelines for document retention be standardized. That is, the Logbook Standards for Thermal Powerplants requires data retention for five years, the proposed GO requires retention for the life of an asset plus three years, and federal regulations require record preservation for up to 25 years. (SCE comments on draft decision at page 7, citing 18 CFR 125.) In particular, SCE says federal regulations require SCE to keep generation and output logs for three years, while station and system generation reports and clearance logs must be kept for six years.
We decline to adopt SCE's recommendation. Nonetheless, we encourage respondents and parties to give further thought to this matter and, if appropriate, subsequently present a comprehensive and complete proposal.
The issue was neither presented to the Committee in a timely manner, nor presented in any way that convinced the Committee to adopt a period other than five years. Parties should consider bringing the matter back to the Committee during the life of the Committee.40
Similarly, the matter was not presented to the Commission regarding Logbook Standards in a timely way. That is, federal regulations could have been cited in parties' comments in April 2003 on Commission implementation and enforcement of Logbook Standards, but were not. Federal regulations regarding preservation of records of public utilities and licensees contain retention periods from "destroy at option" to 25 years. Regarding operation and maintenance of non-nuclear production facilities, the period appears to vary from one year to 25 years. Whether federal retention periods cover all data required in Logbook Standards is unclear. Moreover, the federal scheme might be effectively overridden by another provision that specifies the retention period is five years for reports to state regulatory commissions. (18 CFR 125.3 at item 41.)
If the federal scheme is relevant, respondents and parties may give further consideration to the federal timeframes, and make a recommendation that more clearly demonstrates whether or not the federal scheme covers all data at issue here; more clearly specifies which of the data is to be retained for which period (e.g., destroy at option, one year, three years, five years, six years, 25 years, some other period); and includes other necessary information to make a clear, compelling and comprehensive recommendation. Respondents and parties should do so before the Committee, as appropriate, and may do so before the Commission (including in comments on the proposed GO) to assist the Commission make each element of the adopted program compatible.
7.2. Waiver of Logbook Standards
In comments on the draft decision, Elk Hills contends that the decision should be modified to permit a generator to seek and obtain a waiver of one or more of the specific Logbook Standards. We decline to make this change.
No party earlier made a viable claim that any of the required logbook data is unnecessary, irrelevant or would be unavailable. Elk Hills now argues that a waiver mechanism should be adopted "in recognition of the various means by which a generating facility might keep its records, and in order to provide a practical level of flexibility with respect to implementation and enforcement." (Comments dated November 18, 2003, page 14.)
The Standards already permit data to be kept in hard copy or electronic form. No other data retention technique was identified that would require adoption of a waiver mechanism to permit recognizing "various means" by which data is kept.
Implementation is by use of a compliance document. This approach obviates the need for any facility to change how or where it compiles its data. Rather, it only requires that the data and its location be documented or "mapped." This already provides a "practical level of flexibility." We are not persuaded that a waiver mechanism is needed to provide an increased level of flexibility.
Moreover, even if we were persuaded to consider a waiver process here-which we are not-Elk Hills fails to propose a specific approach for such waiver, and we decline to fashion one ourselves at this late date in the process of adopting this decision.41 Even if we did fashion one, parties may desire a round of comment on the proposed mechanism. To the extent truly necessary, parties may consider making such specific recommendation in comments later in this proceeding.
B. Comments on Draft Alternate Decision
On April 22, 2004, the draft alternate decision of President Peevey was filed and served on parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Commission's Rules of Practice and Procedure. Comments were filed and served on April 29, 2004, by PG&E, SCE, SDG&E, Mirant, DENA, AES, WCP, Elk Hills and High Desert Power Project, LLC. Reply comments were filed by AES. The comments do not raise any new issues that have not already been considered and discussed above. However, in response to the repeated contentions to the effect that we have no jurisdiction to adopt these standards, we have added some further clarifying language in Sections 3.3 and 5.1.2 above. We have also revised the discussion, in Section 3.5 above, in response to SCE's concerns about the Commission's jurisdiction over out-of-state facilities operated by SCE.
37 This modification is in response to the general concern regarding mitigation of burden on covered facilities and Commission staff to the extent reasonable, while still meeting important state goals (e.g., public health, public safety, reliability, stability, adequacy). 38 In our decision adopting a General Order, we consider whether or not to delegate certain authority to the Executive Director. 39 This is the draft decision of ALJ Thorson mailed February 27, 2004 entitled: "Draft Decision Adopting General Order Implementing and Enforcing Electric Generator General Duty Standards for Operation and Maintenance, Maintenance Standards, and CAISO's Outage Coordination Protocol."40 Consistent with the discussion above, consideration of the matter might be undertaken by the Commission as part of the Commission's adoption, implementation and enforcement of Standards, particularly after the Committee expires on December 31, 2004.
41 For example, would the pleading (e.g., that one or more Logbook Standards be waived) be before the Committee or the Commission? If before the Commission, what type pleading that would be filed (application, petition for modification, motion, advice letter, other)? Would the pleading be served, would comments and replies be permitted, what would be the period for comments and replies? Would the pleading initiate a proceeding subject to Article 2.5 of the Commission's Rules of Practice and Procedure (e.g., categorization, Scoping Memo, proposed decision (PD), 30 days for public comment on the PD)? Would the process result in a Commission decision or could the decision be delegated to staff? Would there be an appeal process and if so, what would be the parameters?
