VI. Motions

TURN/UCAN brought a motion for admission of two confidential exhibits into the evidentiary record. The two exhibits were attached as confidential Appendices A and B to the confidential version of the motion. The exhibits had been deemed confidential by SDG&E pursuant to the amended protective order in this proceeding approved by Judge Walwyn in a December 1, 2003 ruling in R.01-10-024. TURN/UCAN seek the removal of the confidentiality designation to "promote "public access" to critical materials with direct bearing on the reasonableness of the Otay Mesa PPA."¹⁷

In the absence of any subsequent protective orders in this proceeding, the operative one is the December 1, 2003 ruling. Currently, the Commission has an open proceeding, R.05-06-040, which is designed to address the issues surrounding confidentiality vs. public access that pervades all the procurement proceedings and raises its head in many others. Evidentiary hearings have already been held in the confidentiality rulemaking and a decision is anticipated spring of 2006.

Because of this open rulemaking and the fact that this rehearing phase on the Otay Mesa PPA is concluded, TURN/UCAN's motion is denied. It is not denied, however, because of the persuasiveness of SDG&E's arguments in favor of confidentiality. Based on the utility's presentation alone, there was no overriding need presented that justified keeping the exhibits confidential. They are being kept confidential only because this rehearing proceeded without the use of those documents, no party claimed prejudice because they were confidential, and TURN/UCAN effectively argued their position without need to use them.

TURN/UCAN also brought an additional motion, concurrent with its reply brief, to have an additional exhibit received into the record. The exhibit referenced Calpine's financial situation. As previously discussed, the Commission is aware of the news accounts on Calpine and is proceeding to decide the Otay Mesa PPA without reference to those articles. TURN/UCAN's motion is denied.

TURN and UCAN also filed a motion to admit additional evidence on January 17, 2006 for the limited purpose of allowing the Commission to consider a motion filed by Calpine in its bankruptcy proceeding, Case No. 05-60200(BRL), pending in the U.S. Bankruptcy Court Southern District of New York. Since this filing is a matter of public record, it is not necessary to admit it as an additional exhibit, and TURN's motion is denied.

Any other motions not already ruled on or mentioned in this decision are deemed denied.

¹⁷ TURN/UCAN Opening Brief, p. 2.