Comments on Draft Decision
The draft decision of the ALJ Orville I. Wright in this matter was mailed to the parties in accordance with Section (311(g)(1) of the Public Utilities Code and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on , and reply comments were filed on .
1. PacifiCorp and Nor-Cal filed an application for Commission approval pursuant to Public Utilities Code Section 851 of a proposal that PacifiCorp will sell and Nor-Cal will buy all of PacifiCorp's distribution assets, certain of its transmission assets, and all of those permits and authorizations utilized to provide retail electric service to customers in PacifiCorp's Northern California service territory, being portions of the Counties of Del Norte, Modoc, Siskiyou and Shasta.
2. PacifiCorp is an Oregon corporation providing electric generation, transmission, and retail distribution service in its Northern California service territory.
3. Nor-Cal is a JPA established by the County of Del Norte and the City of Yreka, Siskiyou County.
4. It has been duly adjudged and decreed by the Superior Court of Del Norte County that Nor-Cal does not have authority to undertake the transaction described in the application to finance and operate the proposed system to sell electric power at the retail level. This is a final decision as the time for appeal has expired.
5. Having failed to validate Nor-Cal's participation in the application proposal, Jefferson JPA was established by the Cities of Yreka and Dunsmuir for the purpose of providing retail electric service as a licensee of Nor-Cal, thus avoiding the Superior Court judgment's critical holding that a county has no authority to provide electrical service at retail in California.
6. As no validation action has been filed by Nor-Cal and Jefferson, it is not known whether the license arrangements of Nor-Cal and Jefferson would result in the validation of the Asset Purchase Agreement, the Indenture, the Bonds and Resolutions of the participating cities and county.
7. The California Public Utilities Commission does not undertake to perform the functions of the Superior Courts of this State.
8. Statements made at PPHs, unsworn and not subject to cross-examination, cannot form the basis for Commission findings of fact.
9. Applicants' representation that they will market $198.5 million of 30-year taxable, non-recourse, revenue bonds at 7% interest to pay for PacifiCorp's assets is nowhere corroborated in this record.
10. Nor-Cal's borrowing projections and operating plan dated August 11, 1999 are not supported by the record.
11. The application is incomplete in that it fails to demonstrate how Nor-Cal can fulfill its guarantee that no PacifiCorp customer will be negatively impacted by the proposed acquisition because:
a. There is no commitment for the underwriting of the proposed bond issue;
b. There is no commitment for insurance of the bonds; and
c. The asset Purchase Agreement, the Indenture, the Bonds and the Resolutions of Nor-Cal and Jefferson have not been validated.
12. The Settlement Agreement is not reasonable in light of the whole record, is not consistent with law, and is not in the public interest.
1. The motion of PacifiCorp and Nor-Cal for Adoption of Settlement Agreement should be denied.
2. The application should be dismissed.
IT IS ORDERED that:
1. The motion of PacifiCorp and Nor-Cal for Adoption of Settlement Agreement is denied.
2. Application 99-08-036 is dismissed.
3. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
