V. Comments on Draft Decision
The draft decision of the Principal Hearing Officer 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 timely filed on the consolidated draft decision. Regarding procedural issues, Aerojet recommended that we not impose evidentiary sanctions against EL&L or RK&M to restrict any future participation in this or future related proceedings. We agree and remove these proposed sanctions.
Subsequently, two revised draft decisions which separated the substantive water quality and procedural issues were mailed to the parties. Similar comments on the procedural issues were filed in this second round of comments as in the initial comments.
Further substantial revision of the draft decision mandated a third comment period.
1. On May 3, 1999, the Assigned Commissioner rejected all EL&L arguments in opposition to answering respondents' data requests and granted Citizens and Cal-Am's motions to compel EL&L to answer these questions, but denied Cal-Am's request for sanctions. The Assigned Commissioner ordered EL&L to provide this information within ten days.
2. The Assigned Commissioner in the May 3, 1999 Scoping Memo specifically ruled that the Commission has personal jurisdiction over EL&L and RK&M.
3. In the Scoping Memo issued on May 3, 1999, the Assigned Commissioner ordered parties and DHS to address additional questions in an effort to narrow the dispute in this proceeding.
4. EL&L and RK&M failed to comply with the Assigned Commissioner's orders on May 3, 1999.
5. Because EL&L did not comply with the May 3d order, on June 14, 1999, Cal-Am filed a motion to compel EL&L to comply with the order to answer data requests and additional questions, requesting evidentiary and monetary sanctions.
6. Cal-Am did not provide a declaration to support its $15,000 monetary sanctions request.
7. EL&L provided inadequate reasons for not answering respondents' data requests or the questions in the Scoping Memo and instead seeks to withdraw from the proceeding without answering these questions.
8. In its notice of withdrawal, EL&L unjustifiably contends it intervened to monitor this proceeding, took affirmative positions at the direction of the Commission and in the public interest to complete the record in this investigation.
9. EL&L denies that it has any information critical to the outcome of this investigation.
10. EL&L received all information requested during discovery from respondents regarding their compliance reports in this proceeding and has not filed a motion to compel data from any respondent. Yet, EL&L alleges it has insufficient information to answer respondents data requests or the Commission's questions.
11. In response to Cal-Am's motion EL&L contends that it is not a party to this proceeding and cannot be compelled to respond to data requests which are beyond the scope of this investigation and the limits of discovery.
12. The Assigned Commissioner in his May 3d Scoping Memo previously rejected the same EL&L's arguments made in the subsequent response to Cal-Am's second motion to compel answers.
13. RK&M received all information requested during discovery from respondents regarding their compliance reports in this proceeding, yet failed to answer the questions in the Scoping Memo seeking to narrow the dispute in this proceeding.
14. Suburban subsequently filed a motion to compel RK&M to answer the Commission's questions in the Scoping Memo.
15. RK&M provided no justifiable reason for not answering the questions in the Scoping Memo and instead sought to withdraw from the proceeding without answering these questions.
16. RK&M alleges that it has no further need to participate since the dispute over jurisdiction was resolved in the Interim Order and in that order the Commission indicated it would not address any impact the investigation in this proceeding may have on civil lawsuits.
17. EL&L and RK&M did not request to limit their appearance or make a special appearance to challenge jurisdiction in this proceeding.
18. EL&L and RK&M both filed Petitions to Intervene as full parties, which were granted, and participated as full parties by engaging in discovery and recommending the scope, schedule, and issues in this and any subsequent related proceedings.
19. EL&L contends that it has no meaningful information with which to answer questions posed by Cal-Am and the Commission.
20. EL&L was one of the parties requesting Oral Argument, yet did not appear at the Oral Argument scheduled and notification of its intended absence reached the assigned ALJ after the argument was held.
21. Neither EL&L nor RK&M have provided any factual basis in this proceeding for allegations that respondents have at any time delivered drinking water that is harmful to the public or violated applicable drinking water standards for the past 25 years.
22. The parties and Commission resources are better served by not compelling EL&L and RK&M to answer data requests and questions posed in the May 3 Scoping Memo.
23. The record in this proceeding is adequate to resolve the issues posed in the OII without the participation of EL&L and RK&M.
1. The rulings of the Assigned Commissioner in the May 3, 1999 Scoping Memo should be affirmed.
2. EL&L refused to comply with a lawful discovery order and to answer crucial questions posed by the Commission to narrow any dispute in this proceeding.
3. RK&M refused to answer crucial questions posed by this Commission to narrow any dispute in this proceeding.
4. There is no supporting declaration for the sanctions requests, as required under CCP § 2023(c).
5. Based upon the facts in this proceeding, Cal-Am and Suburban's motions to compel answers to respondents' data requests and compliance with the May 3 Scoping Memo should be denied.
6. Based upon the facts in this proceeding, EL&L and RK&M's motions to withdraw should be granted, effective immediately.
7. This proceeding should be closed.
IT IS ORDERED that:
1. We affirm the Assigned Commissioner's rulings in the May 3, 1999 Scoping Memo.
2. California-American Water Company's motion to compel Engstrom, Lipscomb & Lack, Girardi & Keese, and Dewitt, Algorri & Algorri (EL&L) to comply with the May 3 discovery ruling is denied.
3. Suburban Water Systems' motion to compel answers to questions in the May 3 Scoping Memo is denied.
4. EL&L's motion to withdraw as a party in this proceeding is granted, effective on the date of this order.
5. Rose, Klein & Marias' motion to withdraw as a party in this proceeding is granted, effective on the date of this order.
6. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
