Discussion

SDG&E argues that complainant has not met the burden of proof for establishing that the generators at his facility were nonmobile self-generation. We disagree. SDG&E's Rule 23 contains exemptions from competition transition charges for certain specific parties. Those exemptions apply to "an on-site or over-the-fence non-mobile self-generation or cogeneration facility." The evidence shows that Farm ACW had purchased a large 1,500 kW generator in 1992 or 1993 and placed it in its generator building in 1995. The generator supplies electricity and heat to a 1,000 acre farm with 180,000 avocado trees as well as providing electricity to refrigeration, dormitories, and other services. It has remained in place since 1995, certainly nonmobile.

SDG&E argues that complainant's testimony, and the proffered testimony of a putative expert witness to perform the arithmetic described in Section 218.5 fail to properly demonstrate that complainant's generation facility meets the definition of cogeneration. SDG&E contends that Farm ACW's expert witness must be disqualified, and her testimony stricken, because: (a) she fails to satisfy the requirements for qualification as an expert witness under Evidence Code Section 720; and (b) her opinion testimony is not based upon reliable evidence, as required under Evidence Code Section 801, subdivision (b).

Evidence Code Section 720 states:

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.

SDG&E asserts that the testimony that Farm ACW qualifies as a cogenerator is based entirely on its expert's calculations based on information received from Mr. Arterberry. She said she had never performed this calculation prior to being retained by complainant in this matter. She had to contact SDG&E's expert for advice.

We disagree with SDG&E's assertion that Farm ACW's expert is not qualified to render an opinion on cogeneration. She is an engineer with 20 years experience with SDG&E including analyses of cogeneration projects and reviewing cogeneration drawings. When she had a question she consulted an SDG&E expert for advice, who agreed that based on the assumptions given to her, the numbers were accurate. We find Farm ACW's expert to be qualified.

The principal issue is the validity of the use of assumptions and the assumptions themselves. Evidence Code, Section 801, provides that an expert witness' opinion testimony must have a reliable basis:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. (Emphasis added.)

The rule stated in subdivision (b) permits an expert to base her opinion upon reliable matter, whether or not admissible, of a type that may reasonably be used in forming an opinion upon the subject to which her expert testimony relates. "The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed." (PG&E v. Zuckerman (1987) 189 Cal.App.3d 1113, 1134; Witkin, Opinion Evidence, § 30, § 61.)

The matter for decision is whether the Farm ACW expert witness reasonably relied on Dr. Arterberry's testing in order to form her opinion. We find that she did. We will not repeat the testimony of Dr. Arterberry set forth above. We note, and find, that the details of his operation were not refuted by SDG&E. SDG&E did not provide any witness to explain how a 1,000 acre avocado farm with 180,000 trees operates, nor how to make potassium sulfate soluble. The farm was operating in 1995, it is operating today, and it operated from 2001 to June 30, 2005 without electricity provided by SDG&E. We have no doubt Dr. Arterberry knows whereof he speaks, and his expert could reasonably rely on his description of his operations.

Safety

SDG&E's witness testified that SDG&E de-energized its service to Farm ACW on August 3, 2001, because of safety considerations and failure to pay past due amounts. He said SDG&E remained willing and able to resume supplying electricity to Farm ACW provided that Farm ACW obtained safety approval from the County of San Diego. Service was re-established July 3, 2005. As a consequence, SDG&E argues that regardless of any determination made concerning the other issues set out above, the Commission must fulfill its obligation to determine whether or not SDG&E, under the circumstances, acted pursuant to its tariff by ensuring the continued isolation of the complainant's generators until their safe interconnection with its distribution system could be determined.

In this case we need not determine whether SDG&E acted prudently in disconnecting Farm ACW from its system. We make no finding on this issue. Our concern is with the amount of the charges, if any, owed by Farm ACW. We have found that during the period covered by this complaint Farm ACW was a cogenerator within the meaning of SDG&E's tariffs and as such is not liable for the departing load charges billed by SDG&E. The question remaining is whether Farm ACW is liable for standby charges.

Standby Charges

SDG&E argues that even though Farm ACW was a cogenerator, standby service charges are applicable. Complainant argues that under SDG&E Rate Schedule CGDL-CRS, he is not liable for any standby charges because he had physically disconnected from SDG&E's electric distribution system in January 2001 or was disconnected from SDG&E's system by SDG&E in August 2001. Complainant is incorrect. Standby service is applicable to complainant because SDG&E would have provided standby or breakdown service1 to complainant for the period from January 2001 until August 2001 had complainant simply made the unilateral decision to throw a switch and do so. Schedule S requires that SDG&E base the charges from Schedule S on the lower of the nameplate of the customer's generating facilities and SDG&E's estimate of the customer's peak demand. In developing the billing amount of $16,235 SDG&E has complied with the two Schedule S criteria independent of any requirement for a contract with the customer. Therefore, SDG&E asserts that standby charges are properly due from complainant.

Farm ACW argues that as a legal matter, there is no tariff authority for assessment of standby charges. It says Schedule S, SDG&E's tariff in force at the time Farm ACW disconnected from SDG&E's grid, is explicit that there is no basis for Farm ACW to be assessed standby charges. SDG&E's tariff clearly states that "[t]his schedule shall apply only when a Contract Generation Agreement is signed with the utility." (Sch. S, Cal P.U.C. Sheet No. 10914-E at 3.) SDG&E has conceded that there was no such contract in this case.

Farm ACW claims that Section 489 requires that all rules affecting rates be filed with and enforced by the Commission. Under the filed-rate doctrine, the tariff, "when so published and filed, had the force and effect of a statute, and any deviations therefrom were unlawful unless authorized by the commission." (Dyke Water Co. v. Public Util. Comm'n (1961) 56 Cal.2d 105, 123.) The Commission has repeatedly affirmed that approved and filed tariffs have the force and effect of law. (See, e.g., Almond Tree Hulling Co. v. Pacific Gas & Elec. Co., D.05-10-049 at fn. 4.)

Farm ACW contends that in addition to the factual and legal reasons why the imposition of standby charges on Farm ACW is unsupportable, there are significant policy concerns about imposing standby charges on a customer who disconnects from the grid to run its own generators and does not contract for standby service. Such a precedent, holding that SDG&E may impose standby charges on any customer who disconnects from the grid or who ceases to use SDG&E's power for limited periods of time, would have potentially sweeping implications, in complainant's opinion. As one example, agricultural customers who run separately-metered water pumps (unlike Farm ACW) and shut down the pumps during on-peak periods. Such a customer remains connected to SDG&E, and could, at its own discretion, turn its pumps back on and draw power at SDG&E's peak period. Similarly, a customer who shifts load using self-generation, as Farm ACW did for years, could stop operating its generators and use SDG&E power at peak periods. Either type of customer retains the option and the power to utilize energy that it normally does not consume, thereby effectively placing SDG&E in the same position with respect to the provision of standby power: the customer retains full control over whether it draws power from SDG&E during these peak periods, and the utility must therefore be prepared to meet the customer's demand.

Complainant's argument is without merit; complainant is liable for standby charges of $16,235. Complainant's attempt to put himself in the same position as a customer who receives power by turning his wall switch on or off misses the mark. The issue is the cost of being connected to the SDG&E electric system. When you turn your lights off you are not disconnected from the system and your electric bill depends on the rate schedule applicable to your service. But when you disconnect from the SDG&E system you are in a different position altogether. If the disconnect is permanent you are no longer a customer; but if you are in a position to reconnect without the consent of the utility then you are using the utility as a backup and are liable for a backup charge. Any customer that retains control over whether it draws power from the grid must be assessed standby charges for the privilege of so deciding. If complainant were to escape all standby fees because he has no contract, Schedule S would be effectively rendered useless. Persons similarly situated as complainant would not need to pay for standby service, they would receive it without cost.

There is good reason to require a contract for standby service. It gives the utility the opportunity to refuse if the service might cause a problem on the utility system.2 Special Condition 7 of Schedule S provides:

For us to hold that a Contract Generation Agreement is the sole way to obtain standby service, would be to hold that complainant, who did not comply with Schedule S, received standby service at no cost while customers who complied with Schedule S paid for standby service. To argue that you should not pay for services received because you failed to abide by the tariff is preposterous. We reject that result.

1 (Schedule S, Applicability) "The service provided on this Rate Schedule is standby or breakdown service where all or part of the customer's electrical requirements are supplied by a generation source, other than the Utility, which is located on the customer's premises."

2 See, Pub. Util. Code § 399:

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