7. Rehearing and Judicial Review
This Decision construes, applies, implements, and interprets the provisions of SB 772. Therefore, applications for rehearing and judicial review of this Decision are subject to §§ 1731 and 1769. These laws provide that any application for rehearing of this Decision must be filed within 10 days of the final order. The Commission must issue its decision on any application for rehearing within 20 days of the filing for rehearing. Any court challenge must be made directly to the California Supreme Court and must be filed within 10 days after the Commission denies rehearing.
1. The petitions to modify D.04-11-015 and D.04-02-062, which were issued in A.04-07-032 and I.02-04-26, respectively, raise related questions of law and fact.
2. In their petitions to modify D.04-02-062, CMUA, Merced, and Modesto seek to exempt new MDL from the RAC to the same extent that new MDL is exempted from the DWR Power Charge. CMUA also requests that D.04-02-062 be modified to exempt transferred load from the RAC.
3. There is no opposition to modifying D.04-02-062 to exempt new MDL from the RAC to the same extent that new MDL is exempted from the DWR Power Charge. PG&E opposes CMUA's request to modify D.04-02-062 to exempt transferred load from the RAC.
4. The RAC and ERB Charges are similar in that both types of charges recover the same PG&E bankruptcy costs.
5. CMUA's petition to modify D.04-11-015 asks the Commission to (i) confirm that new MDL is exempt from ERB Charges to the same extent that new MDL is exempted from the DWR Power Charge element of the CRS, and (ii) modify D.04-11-015 to exempt transferred load from ERB Charges. There is no opposition to CMUA's first request. PG&E opposes CMUA's second request.
6. In D.05-07-041, the Commission held that (i) BART is exempt from ERB Charges pursuant to SB 1201, and (ii) Sierra Pine Ltd. is exempt from the ERB Charges pursuant to Pub. Util. Code § 367.3. No party contended in the instant proceeding that the types of exemptions to ERB Charges granted by D.05-07-041 apply to new MDL or transferred load.
1. Application 04-07-032 and I.02-04-026 should be consolidated pursuant to Rule 55 for the sole purpose of resolving these petitions.
2. The Commission intended in D.04-02-062 to exempt new MDL from the RAC to the same extent that new MDL is exempted from the DWR Power Charge pursuant to decisions issued in R.02-01-011.
3. Since the issuance of D.04-02-062, the Commission in R.02-01-011 has exempted certain new MDL and transferred load from the DWR Power Charge element of the CRS. This exemption is subject to various restrictions and caps.
4. For the reasons stated in the two previous Conclusions of Law, D.04-02-062 should be modified to exempt new MDL from the RAC to the same extent new MDL is exempted from the DWR Power Charge element of the CRS by decisions issued in R.02-01-011, including D.04-11-014, D.04-12-059, and D.05-01-040. The same restrictions and cap that apply to new MDL's exemption from the DWR Power Charge should apply to new MDL's exemption from the RAC.
5. PG&E should file revised tariffs that reflect new MDL's exemption from the RAC adopted by today's Decision.
6. As long as the RAC remains in effect, PG&E should promptly revise the provisions in its tariffs reflecting new MDL's exemption from the RAC to conform to any revisions to new MDL's exemption from the DWR Power Charge.
7. The Commission in D.04-02-062 did not intend to exempt transferred load from the RAC in response to developments in R.02-01-011.
8. Exemptions from the RAC and ERB Charges should be treated similarly because both charges recover the same PG&E bankruptcy costs.
9. SB 772 does not exempt transferred load from ERB Charges.
10. Because exemptions from the RAC and ERB Charges should be treated similarly, and transferred load is not exempt from the ERB Charges, transferred load should not be exempted from the RAC.
11. Transferred load should not be exempted from the RAC for the reasons stated in the four previous Conclusions of Law.
12. Decision 04-11-015 determined pursuant to SB 772, § 848.1(c), that ERB Charges should apply to new municipal load "to the same extent...it is determined in R.02-01-011 that new municipal load is exempt from the CRS." This provision in D.04-11-015 is ambiguous due to the determination in R.02-11-011 to exempt certain new MDL from only the DWR Power Charge element of the CRS, and not the entire CRS.
13. It would be consistent with D.04-11-015 and SB 772 to exempt new MDL from ERB Charges to the same extent that new MDL is exempted from the DWR Power Charge element of the CRS by the Commission in R.02-01-011.
14. Decision D.04-11-015 should be clarified to mean that new MDL's exemption from the ERB Charges adopted by D.04-11-015 should be identical to new MDL's exemption from the DWR Power Charge element of the CRS adopted by Commission in R.02-01-011.
15. Except as noted in Finding of Fact 6, Sections 848.1(b) - (d), which were enacted by SB 772, require all of PG&E's customers and types of load to pay ERB Charges except for those customers and types of load specifically exempted from ERB Charges by SB 772. There is no statutory exemption in Sections 848.1(b) - (d) for transferred load. Consequently, transferred load must pay the ERB Charges.
16. CMUA's request to modify D.04-11-015 to exempt transferred load from the ERB Charges should be denied for the reasons set forth in the previous Conclusion of Law.
17. CGDL and transferred load are differently situated with respect to the RAC and ERB Charges because D.04-02-062 and SB 772 have exempted CGDL, but not transferred load, from PG&E's bankruptcy costs.
18. Because CGDL and transferred load are differently situated with respect to the RAC and ERB Charges, the fact that certain CGDL has been exempted from the RAC and ERB Charges does not mean that transferred load should be exempted from these charges.
19. Decision 04-11-015 is a Financing Order enacted pursuant to SB 772 that is irrevocable to the extent specified in § 848.1(g). However, the Commission may supplement D.04-11-015 as long as the supplement is not inconsistent with the terms and provisions of D.04-11-015.
20. The clarification of D.04-11-015 adopted by today's Decision is not inconsistent with the terms and provisions of D.04-11-015.
21. This Decision construes, applies, implements, and interprets the provisions of SB 772. Therefore, applications for rehearing and judicial review of this Decision are subject to Sections 1731 and 1769. These laws provide that any application for rehearing of this Decision must be filed within 10 days of the final order. The Commission must issue its decision on any application for rehearing within 20 days of the filing for rehearing. Any court challenge must be made directly to the California Supreme Court and must be filed within 10 days after the Commission denies rehearing.
22. The following order should be effective immediately because it makes needed modifications to D.04-02-062 and an important clarification regarding the Commission's intent in D.04-11-015.
IT IS ORDERED that:
1. Decision (D.) 04-02-062 is modified to exempt new municipal departing load (new MDL) from Pacific Gas and Electric Company's (PG&E's) bankruptcy Regulatory Asset Charge (RAC) to the same extent that new MDL is excepted from having to pay the Department of Water Resources (DWR) Power Charge pursuant to Commission decisions issued in Rulemaking (R.) 02-01-011.
2. Within 10 days from the effective date of this Order, PG&E shall file revised tariffs for the RAC that implement Ordering Paragraph 1, supra.
3. For as long as the RAC remains in effect, PG&E shall promptly revise its RAC tariffs for new MDL to mirror any revisions to new MDL's exception from the DWR Power Charge adopted by the Commission.
4. Decision 04-11-015 is clarified to mean that new MDL is exempt from Energy Recovery Bond Charges to the same extent new MDL is excepted from payment of the DWR Power Charge element of the Cost Responsibility Surcharge by Commission decisions issued in R.02-01-011.
5. The petition to modify D.04-11-015 filed by the California Municipal Utilities Association (CMUA) is granted to the extent set forth in the previous Ordering Paragraphs. The petition is denied in all other respects.
6. The petitions to modify D.04-02-062 filed my CMUA, the Merced Irrigation District, and the Modesto Irrigation District are granted to the extent set forth in the previous Ordering Paragraphs. The petitions are denied in all other respects.
7. Application 04-07-032 and Investigation 02-04-026 are consolidated pursuant to Rule 55 for the sole purpose of resolving the petitions identified in the two previous Ordering Paragraphs.
8. Application 04-07-032 is closed.
9. Investigation 02-04-026 remains open.
This order is effective today.
Dated September 25, 2005, at San Francisco, California.
MICHAEL R. PEEVEY
President
GEOFFREY F. BROWN
SUSAN P. KENNEDY
JOHN A. BOHN
Commissioners
Comr. Grueneich recused herself
from this agenda item and was not
part of the quorum in its consideration.
