V. Does the Exception for the Power Charge Extend
to the DWR Bond Charge?
A. Position of Parties
CMUA seeks modification of D.04-12-059 to exclude new MDL from any requirement to pay DWR Bond Charges. CMUA seeks this modification to resolve the "ambiguity" as to whether the CRS exemption for new MDL incorporates the DWR Bond Charge. CMUA cites to D.03-07-028 in which the Commission initially stated that new MDL shall not be subject to a CRS. CMUA then cites D.03-08-076 (on the rehearing of D.03-07-028) where the Commission limited the extent of the CRS exception for new MDL, noting that new MDL of existing POUs remains responsible for "the tail CTC component of CRS" pursuant to § 369. CMUA finds it significant that in D.03-08-076, while referencing the tail CTC component, the Commission did not explicitly state that new MDL is responsible for the DWR Bond Charge. CMUA thus infers that the Commission's intent was that the CRS exception for new MDL includes both the DWR power charge, as well as the DWR bond charge.
CMUA argues that the Commission's statement in D.04-12-059 that "new MDL should be held responsible for the DWR Bond Charge, pursuant to Public Utilities Code Section 366.2(d)..."3 is consistent with the Commission's action in D.03-07-028 and D.03-08-076. CMUA claims that there appears to be a conflict between D.04-12-059 and the Commission's prior decisions with respect to the MDL responsibility for the DWR Bond Charge.
PG&E and SCE oppose the modification sought by CMUA, and argue that there is no ambiguity or inconsistency in the Commission's decisions. PG&E and SCE believe that D.04-12-059 is clear that new MDL is responsible for paying the DWR Bond Charge, and that no further modification is warranted.
B. Discussion
We find no ambiguity in D.04-12-059 with respect to new MDL cost responsibility for paying the DWR Bond Charge. The language in D.04-12-059 is clear that new MDL remains responsible for the DWR Bond Charge. Moreover, we find no ambiguity or conflict between D.04-12-059 and other relevant Commission decisions. In fact, the Commission's purpose in making findings in D.04-12-059 regarding the applicability of the DWR Bond Charge was to promote clarity of Commission intent in prior decisions, not to obscure it.
D.04-12-059 was responsive to PG&E's Application for Rehearing, filed November 29, 2004, (see page 23) expressly seeking clarification that there is no MDL exemption for either the DWR Bond Charge or to Tail CTC.4 D.04-12-059 confirmed that new MDL, in fact, is responsible for both of these elements. Thus, we find no basis for granting the modification sought by CMUA on the issue of DWR Bond Charge responsibility based on any claim of ambiguity or conflict among Commission decisions.
CMUA further seeks to justify its requested modification to exempt new MDL from the DWR Bond Charge by arguing that DWR never procured power for new MDL. Yet, granting such an exemption would provide new MDL with a more favorable treatment than was accorded to CGDL. CMUA fails to address why MDL should be treated more favorably than CGDL with respect to responsibility for DWR Bond Charges.
In D.04-12-059, the Commission stated:
"With respect to excepted new MDL, there appears to be no statutory or policy justification warranting an exception from having to pay the DWR Bond Charge. Thus, consistent with CGDL CRS Decision, new MDL should be held responsible for the DWR Bond Charge, pursuant to Public Utilities Code Section 366.2(d),5 even though they will not have to pay the DWR Power Charge." (D.04-12-059 at page 25-26).
Moreover, we find that CMUA's argument on the issue of DWR Bond Charge cost responsibility goes beyond a request for clarification, and essentially asks the Commission to reconsider its substantive basis for its conclusions in D.04-12-059 with respect to new MDL cost responsibility for DWR Bond Charges. As such, CMUA attempts to relitigate a substantive issue that has already been decided by the Commission's rehearing order in D.04-12-059. Accordingly, CMUA's request to modify D.04-12-059 with respect to new MDL cost responsibility for the DWR Bond Charge is denied.
3 D.04-12-059 at 25-26.
4 In taking issue with D. 04-12-059, CMUA makes the claim that PG&E, in its Application for Rehearing, was NOT seeking rehearing on the new MDL exemption from the DWR Bond Charge. As support for this claim, however, CMUA cites to an excerpt from PG&E's August 1, 2003 Application for Rehearing of D.03-07-028. Yet, that Application for Rehearing is not applicable to D.04-12-059. CMUA omits reference to PG&E's Application for Rehearing of D.04-11-014, filed November 29, 2004, which is the relevant pleading in reference to the Commission's actions in D.04-12-059.
5 See Order Denying Rehearing of D.03-07-028 [D.03-08-076], supra, at pp. 4-8 (slip. op.) for a discussion of the Commission's authority to impose the DWR Charges of the CRS on new MDL.
