IV. CONCLUSION

For all of the foregoing reasons, good cause has not been shown for granting rehearing of D.04-05-017 and D.04-05-018. However, as discussed in this order, we find that some modifications to D.04-05-018 and GO 167 are necessary for the purpose of clarification.

Therefore IT IS ORDERED that D.04-05-017 is modified as follows:

1. On pages 13 to 14 (beginning with the next to the last line on page 13), delete the text, including footnote 16, that states:

"See Decision D.99-07-028.16 We direct the attention of the parties to our reasoning on the jurisdictional question addressed in that Decision, which is directly analogous to the jurisdictional question we are faced with in this Decision."

2. On pages 13 to 14, replace the text deleted in Ordering Paragraph 1 with the following:

"See D.99-09-028. Similarly, the Commission retains authority over the safety and reliability of generation plants for purposes of public health and safety."

3. On page 18, in the citation at the end of the first partial paragraph, replace "D.95-12-006" with "D.95-12-007."

IT IS FURTHER ORDERED that GO 167 is modified as follows:

4. The following sentence is added after the last sentence in section 11.3 Tests and Technical Evaluations:

To the extent feasible, Commission staff shall schedule such tests or evaluations to minimize generation disruptions and shall, as appropriate, coordinate its activities with CAISO.

5. Section 12.1 is deleted and replaced with the following:

Violation. A violation is the failure of a Generating Asset Owner to comply with a requirement of this General Order. A Generating Asset's Owner's lawful and reasonable assertion of its rights under this General Order or state or federal law will not be considered a failure to cooperate under any provision of this General Order.

6. Section 13.3.1 is deleted and replaced with the following:

Section 13.3.1. Specified Violations. For specified Violations of the General Order, CPSD may assess a scheduled fine or, in the alternative, proceed with any remedy otherwise available to CPSD or the Commission. Scheduled fines may be assessed by CPSD only for the Violations referenced in subsection 13.3.2 of this General Order. CPSD shall notify the Generating Asset Owner, in writing, of any specified Violations and assessed fines, and shall include notice of the right to contest the fine as set forth in subsections 13.3.3 and 13.3.4 of this General Order. No fine assessed pursuant to this subsection shall become payable if contested by the Generating Asset Owner pursuant to subsection 13.3.4.

7. Section 13.3.4 is deleted and replaced with the following:

Section 13.3.4. Contest of Assessed Fine. If a Generating Asset Owner contests the assessment of the scheduled fine, the Generating Asset Owner must file its contest within 300 days of the assessment. In the event of such a contest, staff shall withdraw the offer of the scheduled fine and proceed to any remedy otherwise available to the Commission, or shall withdraw the assessed fine and proceed no further, depending on the circumstances of each case. If the matter proceeds to a more formal proceeding before the Commission, neither CPSD in its investigation nor the Commission will be limited to the specified Violations or the schedule of fines set forth in Appendix F to this General Order.

8. Section 15.4.1 is deleted and replaced with the following:

Section 15.4.1. Burden of Establishing Privilege. A Generating Asset Owner has the burden of establishing any privilege that it claims regarding requested documents or information. A Generating Asset Owner has the right to claim an absolute statutory privilege, such as the attorney-client privilege, for information requested. If such a privilege applies, the Generating Asset is not required to provide such information to the Commission. However, the Generating Asset Owner must specify the statutory privilege applicable to particular information. A Generating Asset Owner may also assert a claim of privilege for documents or information provided to the Commission on a confidential basis, such as the trade secret privilege. In such cases, the Generating Asset Owner must assert the specific privilege(s) it believes the Generating Asset Owner and/or the Commission holds and why the document, or portion of document, should be withheld from public disclosure.

9. Section 15.4.3.4 is deleted and replaced with the following:

Section 15.4.3.4. Identify any specific privilege the Generating Asset Owner believes it holds and may assert to prevent disclosure of information, and explain in detail the applicability of that law to the information for which confidential treatment is requested. For example, if a Generating Asset Owner asserts that information is subject to a trade secret privilege (Evidence Code § 1060 et seq., the Generating Asset Owner must explain how the information fits the definition of a trade secret (e.g., how the information provides the holder with economic value by virtue of its not being generally known to the public and what steps the Generating Asset Owner has taken to maintain the secrecy of the information.

IT IS FURTHER ORDERED that

10. As modified by this order, the applications for rehearing of D.04-05-017 and D.04-05-018 are denied.

11. CPSD staff is directed to draft a proposal which further details the procedures of the staff citation program implemented by GO 167. Staff shall serve its proposal on all of the parties to this proceeding for comment. After reviewing the comments, CPSD staff shall draft a proposed resolution for the Commission's consideration and approval. If, during this process, CPSD staff determines that any changes should be made to GO 167 itself (as opposed to merely supplementing the general order), such proposed changes shall be presented in a petition to modify D.04-05-018 and GO 167, rather than in a resolution.

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