XIV. Comments on the Proposed Decision

As a courtesy, the proposed decision of Commissioner Kennedy was mailed to the parties on April 5, 2004. Comments were received on April 12, 2004.

Edison re-iterated its argument that a failure to comply with a Commission general order may be treated as something other than a violation of that order. In support of this position, Edison argued that the knowledge standard we employ in this decision is inconsistent with treating all failures to comply with general orders as violations. In particular, Edison argued, unforeseeable failures to comply should not be treated as violations but as "nonconformances" that may ripen into violations if not cured within a reasonable time. In support of this argument, Edison also noted that by treating all failures to comply as violations, we may subject the utility to the risk of adverse consequences in civil litigation with persons injured on or by Edison property.

This comment confuses the standard for finding a violation with the standard for imposing a fine. As stated in the opinion, there is nothing in our general orders or elsewhere that distinguishes "nonconformances" from violations. But by providing the utility with notice and a reasonable opportunity to cure violations, we also provide a means for erasing the violations from the record of the utility's performance. This, we believe, adequately addresses the concern about the relationship of violations to potential civil litigation. Our model here is the "fix-it" ticket that most police departments issue. The ticket treats the motorist's failure to maintain his vehicle in a safe condition as a violation of the laws requiring such maintenance, but gives the motorist an opportunity to cure the violation within a reasonable period of time and by doing so to avoid a fine.

Edison also argued that we inconsistently applied the knowledge standard in our discussion of individual cases. Upon review of the facts in the individual cases, we decline to modify our original conclusions.

Finally, Edison argued that we erred by interpreting the annual inspection requirement in GO165 as requiring inspections not less frequently than once every 365 days. This point was also urged on us by PG&E in its comments. Upon review, we concluded that our original opinion on this point was in error. Throughout this opinion, our emphasis is on insuring the safety and reliability of the electrical distribution system. There is no evidence in the record that interpreting GO 165 as requiring inspections at least once every 365 days will increase the safety or reliability of the system. On the other hand, there is unrebutted testimony from both Edison and PG&E that such an interpretation will increase the utility's cost of compliance. Given that state of the record, we believe that the utilities are correct in urging us to reject the 365 day interpretation and we do so now. Appropriate modifications have been made to the text of this decision to reflect this interpretation.

CPSD broadly supported the analytical approach taken in this decision but urged us to clarify certain factual errors and include prevention of violations as a stated purpose of our regulatory regime. We have made some of those changes. With respect to prevention as a goal, we note that it may be possible to predict with a fairly high degree of accuracy the level of violations within the system at any given time, even if it is impossible to predict with specificity where those violations will occur. For example, it may be possible to estimate the number of missing high voltage signs in the system at any time, but not to predict which particular signs are missing. With that awareness in mind, we encourage Edison and CPSD to work together to develop a prevention methodology that focuses on raising the system-wide level of compliance as well as on correcting individual violations once discovered.

We also make changes to the proposed order to make the remaining text consistent with Section VII, to improve the discussion and to correct typographical errors.