8. Assignment of Proceeding
Michael R. Peevey is the Assigned Commissioner and Julie M. Halligan is the Assigned ALJ in this proceeding.
Findings of Fact
1. The modifications requested in the April 17, 2003 Joint Petition filed by SDG&E and PG&E would improve the Operating Agreements by making them more consistent and by removing unintentional typographical errors.
2. The modifications requested in DWR's April 17, 2003 memorandum would clarify the Operating Agreements to state that the Commission does not have jurisdiction over DWR and that those disputes that are not Commission jurisdictional should be resolved in a court or other appropriate forum, rather than requiring all commercial disputes regarding the Operating Agreement to come before the Commission.
3. The requirement that the utilities assume all operational, dispatch and administrative functions for the DWR contracts applies only to those DWR long-term power supply contracts allocated to the utilities in D.02-09-053.
4. DWR has not presented sufficient evidence demonstrating that the Williams RMR contract was allocated to SDG&E.
5. The record does not support DWR's claim that the Williams RMR contract was allocated to SDG&E as part of D.02-09-053.
6. The Williams RMR contract is a contract between Williams and the CAISO that is separate and apart from the DWR-Williams contract that was allocated to SDG&E in D.02-09-053.
7. The Williams RMR contract is outside the ambit of the products allocated to the utilities in D.02-09-053.
8. Nothing in D.02-09-053 requires SDG&E to administer the Williams RMR contract.
1. The Joint Petition to Modify D.03-04-029 filed by SDG&E and PG&E on April 17, 2003 is in the public interest and should be granted.
2. The April 17, 2003 Petition of DWR for Modification to D.03-04-029 is in the public interest and should be granted.
3. The Williams RMR contract is not subject to the SDG&E-DWR Operating Agreement.
4. The Petition for Modification filed by SDG&E on June 13, 2003 should be denied.
5. As modified to include the revisions requested by PG&E and SDG&E in their Joint Petition, the Operating Agreements are in the public interest and should be approved.
6. As discussed in this decision, SDG&E's request that the Commission clarify, or in the alternative, modify D.03-04-029 to state that SDG&E has been correctly calculating and remitting revenues associated with the Williams RMR contract should be denied because the Williams RMR contract deliveries are not subject to D.03-04-029.
7. The Commission should permit PG&E and SDG&E to file the executed Operating Agreements, modified as discussed herein, as compliance advice letters within fourteen days of the effective date of this decision.
IT IS ORDERED that:
1. The Joint Petition to Modify Decision (D.) 03-04-029 filed by San Diego Gas & Electric Company (SDG&E) and Pacific Gas and Electric Company (PG&E) on April 17, 2003 is granted.
2. California Department of Water Resource's (DWR)'s request to modify Section 2.02 of the Operating Agreement is granted as follows:
(a) Section 2.02 of the Operating Agreement adopted in D.03-04-029 shall be modified to state:
"In addition, the Parties acknowledge that DWR is not subject to the Commission's jurisdiction, and the Parties agree that none of the provisions of this Agreement, including Section 13.04 herein, shall be interpreted to subject DWR to the Commission's jurisdiction or authority."
(b) Section Section 13.04 of the Operating Agreement adopted in D.03-04-029 shall be modified to state:
"If the Parties are unable to resolve such dispute within 30 days from the date that a detailed summary of such dispute is presented in writing to the other Party, and the dispute related solely to Utility's conduct, performance, acts and/or omissions (and not to DWR's conduct performance, acts and/or omissions), then DWR may at its sole discretion, present the dispute to the Commission for resolution, in accordance with Applicable Law. All other disputes shall be brought in a court of competent jurisdiction or a forum mutually acceptable to the parties in accordance with Applicable Law. Nothing herein shall preclude either party from challenging the decision or action which such Party deems may adversely affect its interests in any appropriate forum of the Party's choosing."
3. PG&E and SDG&E are hereby permitted to file the executed Operating Agreements, modified as requested in the April 17, 2003 Joint Petition of PG&E and SDG&E and the April 17, 2003 memorandum submitted by DWR, as compliance advice letters within 14 days of the effective date of this decision. The modified Operating Agreements will be effective prospectively, as of the date of approval of the compliance advice letters.
4. If PG&E or SDG&E choose not to file executed Operating Agreements, they shall remain subject to the Operating Agreements approved in D.03-04-029.
5. SDG&E's June 13, 20003 request that the Commission clarify, or in the alternative, modify, D.03-04-029 to state that SDG&E has been correctly calculating and remitting revenues associated with the Williams Energy Marketing and Trading Company Reliability Must-Run contract is denied.
This order is effective today.
Dated October 28, 2004, at San Francisco, California.
MICHAEL R. PEEVEY
President
CARL W. WOOD
LORETTA M. LYNCH
GEOFFREY F. BROWN
SUSAN P. KENNEDY Commissioners
