3. Operation Standards and Parallel Changes to Maintenance Standards

The most important change to GO 167 is to include Operation Standards. We do this by including appropriate language in §§ 2, 3, 4, 8, 15 and Appendix E.⁴ The bulk of the changes are to GO § 8.

We use an approach that largely parallels that used for Maintenance Standards. For example, each GAO will prepare an Operation Plan that is retained at the plant location or central office, just as with the Maintenance Plan. Similarly, the GAO will file a verified Initial Certification with CPSD.

Based on Committee recommendations and comments from parties, we also give direction on the use of Guidelines, and include the filing of an Operation Plan Summary. We make similar changes to Maintenance Standards to maintain a parallel structure in the GO. We provide guidance on how these changes are to be understood and implemented for Maintenance Standards given actions already undertaken during Summer 2004. We address these and other comments in the sections below, and do this in the order of the Sections in the adopted GO. We begin with what was perhaps the most heated topic in this phase: the role of Guidelines.

3.1. Guidelines (GO § 8.1)

3.1.1. Inclusion Within Standards

The Committee adopted Operation Standards and Recommended Guidelines. Each GAO is required to operate in compliance with Operation Standards. (GO § 8.1, Appendix E.) The Guidelines may be used to determine compliance with a Standard. Respondents are unanimous in asking that the Recommended Guidelines not be considered part of the Operation Standards. We agree.

Each Standard is enforceable, while each Guideline is not. We include in the GO what is directly enforceable-that is, the Standards. We adopt the Committee's recommendations, and repeat the Committee's language here, because it provides meaningful context and direction on our use of the Guidelines:

"The Committee does not intend these guidelines to be enforceable. There may be reasonable ways of meeting a particular standard that do not follow every provision of the associated guidelines. On the other hand, the guidelines may not be an exhaustive list of the actions required by a standard, because at particular plants there may be special conditions not contemplated here.

"GAOs should consider the guidelines in reviewing or reformulating their own policies, operating procedures, and implementation schedules, to ensure that the concerns raised by the guidelines are addressed, where relevant, at each power generation unit. We anticipate that that Commission staff will use the guidelines as indicators of the kinds of GAO activities that are sufficient to meet standards. Failure to meet guidelines under a particular standard may of course raise questions about the completeness of a GAO's program. Failure to meet a guideline, in combination with other evidence, may indicate a violation of the Standards. However, failure to meet a guideline should not be taken, per se, as a failure to meet the associated standard." (Committee Operation Standards, October 27, 2004, Introduction, Guidelines, page 6.)

We adopt the Guidelines as guides, but do not adopt them as Standards. We seek a relatively compact, focused and streamlined GO that is most useful to the regulated community and the Commission. As such, we do not include the extensive and detailed Guidelines in the GO.

We do, however, include the Guidelines as an attachment to this decision. (See Attachment 3.) This permits the Guidelines to be in a printed volume of Commission decisions, and among Commission decisions on the Commission's web page, for easy reference. We note in the GO (at GO § 8.1 and in Appendix E) that the Guidelines are available from the Commission. We expect CPSD to make them readily available upon request.

3.1.2. Changes to Guidelines

While we adopt the Committee's Recommended Guidelines, we also authorize CPSD to modify Guidelines over time, and make revised Guidelines available to GAOs. We do this because the extensive and detailed Guidelines adopted today will not necessarily survive over time in the same manner as the adopted Standards. Rather, we expect CPSD to seek information and advice from the regulated community, along with using its own knowledge and experience, to revise Guidelines periodically, if and when reasonable and necessary.

Should concerns arise regarding CPSD's use of today's Guidelines, or those modified by CPSD over time, we may review the matter in one of several ways. First, a CPSD enforcement action involving Guidelines may be contested by the GAO. If subsequently brought to us formally by CPSD or another party, one or more participants may recommend that the Scoping Memo for that proceeding identify as an issue the reasonable use of one or more Guidelines. If made an issue, the ultimate disposition of that proceeding could determine the appropriate use of one or more Guidelines.

Second, CPSD may bring Guidelines to us for review and consideration by draft Resolution. Consistent with the Commission's process, parties would have an opportunity to comment. (Rule 77.7 of the Commission's Rules of Practice and Procedure.)

Third, a GAO might petition the Commission for initiation of a proceeding (e.g., Order Instituting Investigation (OII) or Order Instituting Rulemaking (OIR)) to review and revise Guidelines, or their use. (See § 1708.5; Rule 14.7 of the Commission's Rules of Practice and Procedure.) Finally, on our own initiative we might open an OII or OIR to examine the proper role and use of Guidelines or revisions.

In comments on the draft decision, Mirant contends that it is unlawful for the Commission to delegate authority to CPSD to modify Guidelines, since modification involves more than a ministerial act but requires the exercise of discretion and judgment. We are not persuaded. Rather, as we have said previously:

"These provisions [Pub. Util. Code §§ 7, 308, 309] clearly authorize delegation of responsibilities that involve the actual exercise of judgment and discretion, and not simply the application of a rubber stamp or mathematical formula [footnote deleted]." (D.02-02-049, mimeo., page 9; also see D.04-05-018, mimeo., pages 13-14 for a discussion of delegation of functions to staff.)

Moreover, we have agreed with parties and the Committee that Guidelines are not enforceable. There is no improper delegation since we are not delegating authority to change individually enforceable policies or standards.

Rather, each Guideline is a guide. Each Guideline is intended to assist a GAO achieve compliance with a Standard. We expect GAOs and Commission staff to use Guidelines "as indicators of the kinds of GAO activities that are sufficient to meet standards." (Committee Operation Standards, October 27, 2004, Introduction, Guidelines, page 6.) Where reasonable, we expect CPSD to give information to the regulated community about the "indicators" CPSD will consider in assessing compliance. The burden of actual compliance, however, remains with the GAO.

We expect CPSD to make Guidelines (as endorsed today or as modified over time) readily available upon request. CPSD may bring modifications to us for formal approval by draft resolution if desired, but that is not necessary. A GAO may bring the matter to our attention for formal consideration by contesting a CPSD enforcement action (e.g., GO § 13.3⁵), defending itself in a formal Commission action (e.g., GO § 13.1⁶), or petitioning the Commission to review and revise Guidelines. This approach recognizes the role of Guidelines as guides (not standards) while fully protecting parties' rights and at the same time efficiently using the limited resources of industry and government.

3.1.3. Maintenance Standards

We adopt the same approach for the Maintenance Standards, as discussed more below. As such, we eliminate reference in the GO to the Assessment Guidelines (GO § 7.2.1). We similarly streamline GO Appendix D (Maintenance Standards), and include references that Guidelines are available from CPSD.⁷ CPSD may modify Assessment Guidelines (Maintenance Standards) over time, just as it may modify Recommended Guidelines (Operation Standards).

3.1.4. Matrix

Related to whether or not the Guidelines are mandatory, respondents unanimously express concern about CPSD's prior use of a matrix to demonstrate compliance with Maintenance Standards. The matrix approach included a requirement that each Assessment Guideline for each Maintenance Standard be addressed or its nonuse explained. Respondents oppose the use of a matrix approach for measuring compliance with Operation Standards.

We understand CPSD's matrix concept was designed to employ a comprehensive approach, advance consistent and uniform treatment, and facilitate efficient processing of information. By employing the implementation recommendations of the Committee, however, we adopt an alternative approach that satisfies these goals in a less burdensome way. We address this below regarding the filing of a Maintenance Plan Summary and Operation Plan Summary.

3.2. Operation Plan (GO § 8.2)

3.2.1. Contents (GO § 8.2.1)

3.2.1.1 Contents Generally

Reliant, Mirant and others contend that CPSD should not be permitted to specify the contents and format of the Operation Plan. (GO § 8.2.1.) Rather, they assert that greater flexibility and individualized approaches be permitted.

We adopt their recommendation by making § 8.2.1 largely parallel to the previously adopted language for § 7.2.1. This eliminates use of the language in the September 13, 2004 proposal regarding CPSD. We adopt SDG&E's recommendation that:

"The focus should be on substance not form. As long as the Operation Plan allows CPSD to ascertain the necessary information, it should not be required to be in a particular format..." (SDG&E Comments dated October 6, 2004, page 3.)

At the same time, however, we expect GAOs to cooperate as fully as reasonably possible with CPSD. This cooperation will help reduce the cost and increase the efficiency of the entire process for GAOs and the Commission. If necessary to secure these efficiencies, in a future order we may be more specific on format and content. In the meantime, we also note that CPSD may seek information it needs in specific formats via information requests, and GAOs must comply. (GO § 10.)

3.2.1.2 Resolution of Conflicts and Use of Narrative

Part of the adopted flexibility is that a GAO may cite to "existing equipment manuals, checklists, warranty requirements and other documents" to demonstrate compliance. (GO § 8.2.1.) As initially proposed, GO § 8.2.1 would have required that "if any of these documents are contradictory, the Operation Plan will resolve the contradiction." Calpine asserts that GAOs may attempt to use Operation Plans to resolve all contradictory language, but it could be difficult to identify and resolve all instances where documents conflict, particularly as specific operating parameters and procedures change over time.

We agree with Calpine's concern, and modify the language to provide more flexibility. GAOs are expected to use due diligence in identifying and resolving conflicts, and the burden is on GAOs to do so. Nonetheless, we change the language in GO § 8.2.1 from "will" to "should." We adopt the same language for Maintenance Standards in GO § 7.2.1.

DENA recommends we specifically direct that the Operation Plan be a narrative description of how the GAO's practices demonstrate compliance with each Operation Standard. While a narrative approach appears highly reasonable, and we encourage its use in all reasonable instances, we decline to be this prescriptive at this time. Rather, we employ language that the Plan may be in the form of "a narrative, index, spreadsheet, database, web site or other form." This maintains flexibility for the GAO, while ensuring the necessary information is available to demonstrate compliance and facilitate an audit by CPSD. Failure to comply will occur if the information is not reasonably available, or if CPSD is unable to conduct an audit due to an inadequate Operation Plan, not whether the Plan is in the form of a narrative.

3.2.1.3 Corrective Action

We also include a requirement that the Operation Plan show how and when compliance will occur in a case where the GAO is not currently in compliance with an Operation Standard. This requirement is consistent with the previously adopted approach for a corrective plan (GO § 7.2.3 effective May 10, 2004), and as proposed September 13, 2004 (§ 8.2.3), but identifies the corrective plan to be part of the Operation Plan retained at the facility site. Flexibility is retained for a GAO's demonstration of compliance as long as the compliance with each Operation Standard is demonstrated, or how and when compliance will occur is documented. Moreover, this clarifies that we do not intend the corrective plan to be a separate document, but is part of the Operation Plan.

3.2.1.4. Specific Contents

Several parties note that the September 13, 2004 proposal identified four specific Operation Plan content elements (proposed GO §§ 8.2.1.1 through 8.2.1.4). They point out that these items should be revised based on what the Committee adopted on October 27, 2004. We generally agree.

In fact, however, we decline to adopt additional specifics regarding contents of the Operation Plan. This continues to make newly adopted GO § 8.2.1 more parallel with existing GO § 7.2.1. As discussed more below, specific elements may be considered for the Operation Plan Summary (GO § 8.3), including implementation items the Committee recommended on October 27, 2004.

Thus, the Operation Plan is composed of a more detailed document or documents retained at each GAO site that demonstrates how the GAO satisfies the Operation Standards. It may include a "mapping" like that used with the Compliance Document for Logbook Standards, as long as the necessary material is available without unreasonable delay for an audit or other use. GAOs should have reasonable flexibility in preparing their Operation Plan provided that it contains everything necessary to show compliance, or show how and when compliance will be achieved, and reasonably facilitate an audit. CPSD may obtain a copy as necessary. (GO § 8.3.)

3.2.2. Availability (GO § 8.2.2)

We adopt the proposed availability requirement, which mirrors that already adopted for the Maintenance Plan. We also make clear that CPSD may ask for portions of the Operation Plan, not just the entire plan.

3.2.3. Initial Certification (GO § 8.2.3)

We adopt the proposed Initial Certification requirement, but we reorganize the section to increase clarity. That is, the Initial Certification for the Operation Plan is the same as previously required for the Maintenance Plan. We clarify, however, that the certification is of either compliance or noncompliance.

In the case of noncompliance, the GAO must also verify that it has identified and documented deficiencies, and adopted a course of corrective actions reasonably designed to achieve compliance. SDG&E, DENA and others point out that GO § 7.2.3 adopted May 10, 2004 provides 180 days for a GAO to achieve compliance, but proposed GO § 8.2.3 provides only 90 days. SDG&E contends there is no reason to shorten the deadline for Operation Standards.

We disagree, and retain 90 days. The 90 days begins with the filing of the Initial Certification of Operation Plan, which is 90 days after changes to the GO are effective.

That is, for example, if GO changes are effective December 23, 2004, the Initial Certification is due within 90 days, or March 23, 2005. Compliance with all Operation Standards is then expected within 90 days, or by June 21, 2005. June 21, 2005 is just after the beginning of Summer 2005. It is reasonable to expect GAO compliance with all Operation Standards by Summer 2005, or approximately 6 months from the date of this decision. On the other hand, 180 days would push the deadline to September 19, 2005. This is unacceptably beyond Summer 2005.

The 180-day period was satisfactory for Maintenance Standards given the newness of the program. A shorter timeframe for Operation Standards is reasonable given the experience of GAOs and CPSD with GO 167, the relative maturity of the program, and the need to have implementation and enforcement of Standards in place for Summer 2005. ⁸

3.2.4. Filing Dates (GO § 8.2.4)

Each GAO must file a verified Initial Certification. For a generating asset in active service, the Initial Certification of a Maintenance Plan was due within 45 days of the effective date of the GO.⁹ (GO 167 §§ 7.2.4, 15.3.) For Operation Standards, the September 13, 2004 proposal was that this filing be within 90 days of the effective date of the order. (GO proposed § 8.2.4.) DENA contends this should be 180 days for Operation Standards, particularly if a matrix approach is used by CPSD.

We retain 90 days. This deadline is to complete the Initial Certification, not a matrix. The Initial Certification is a reasonably straightforward exercise to affirm and verify compliance or noncompliance. Moreover, we adopt the approach of an Operation Plan Summary. As such, we do not need to increase the days from 90 to 180.

A parallel timeframe for Operation and Maintenance Standards would argue in favor or making the days the same at either 45 or 90. We decline to do so. It is moot to increase the days for the Initial Certification of a Maintenance Plan from 45 to 90 since that date has passed.

Similarly, we decline to reduce the days from 90 to 45 for the Initial Certification of an Operation Plan. There were 18 Maintenance Standards but there are 28 Operation Standards. A GAO may need more time to file its Initial Certification for the larger number of Operation Standards.¹⁰

We also adopt 90 days for the filing relative to other assets (e.g., new facilities, acquisitions). We have previously adopted 90 days for the Initial Certification of a Maintenance Plan regarding other assets (GO § 7.2.5 effective May 10, 2004). We know of no reason not to do so for the Initial Certification of an Operation Plan.

3.3. Plan Summaries (New GO § 8.3)

3.3.1 Contents (GO § 8.3.1)

Mirant says that proposed GO §§ 8.2.1.1 though 8.2.1.4:

"should be collapsed and combined into a single statement that `each Generating Asset Owner should prepare an Operation Plan that summarizes how the Generating Asset Owner meets the intent of the Operation Standards, including by identifying relevant operating policies, procedures, programs and routines that the Generating Asset Owner has in place (or will put in place) to demonstrate compliance with the Operation Standards.' " (Mirant Comments, October 6, 2004, page 6.)

This is consistent with WCP's recommendation:

"The operations standards should be implemented by means of a report from the Generation Asset Owner to the Commission. In this report, the GAO would describe how its operating procedures meet the standard, with cross-references to its existing documentation of operating procedures." (WCP Comments, October 6, 2004, page 5.)

We agree, and do this in new GO § 8.3 regarding an Operation Plan Summary. We expressly provide for this in GO § 8.3.1 We adopt language less specific than recommended by Mirant, and only require that the document summarize how the GAO's operation complies with each Operation Standard. At the same time, however, we expect the summary or report to be as comprehensive as necessary to be complete (i.e., as a complete summary or report, not the complete Operation Plan). Absent good reason to the contrary, we expect it to address each Operation Standard individually. Further, it should reference Guidelines and documents (including policies, procedures, programs, routines) where necessary and useful.

Unlike for the Operation Plan above, we provide that the Executive Director shall specify the format and content elements of the Operation Plan Summary. This is a reasonable requirement since this document is filed with the Commission. Where feasible, the Commission seeks to provide a consistent approach for each filing made with the Commission so as to promote efficiencies for both the regulated community and the Commission.

GAOs are encouraged to assist by submitting a proposal (e.g., format, organizational structure, content elements) consistent with discussions between GAOs and staff at the September 20-21, 2004 workshops. Unless staff sets a different deadline, we direct that GAOs submit their proposal within 30 days of the date this order is mailed. The Executive Director should employ all reasonable and feasible suggestions of GAOs to moderate the burden on GAOs while meeting the Commission's need to have information in a usable form so that the Commission may fulfill its duties.

DENA, SDG&E and others also observe that the Committee recommended an approach involving a summary plan with two specific components.¹¹ (DENA Supplemental Comments, November 3, 2004, page 4; SDG&E Supplemental Comments, November 3, 2004, page 3.) They point out that this approach, if adopted, should be included in the GO. We agree, but we leave the specific items up to the Executive Director.

That is, we decline to include in the GO at this time the level of detail recommended by the Committee, but delegate that to the Executive Director. (GO § 15.10.) We are confident the Executive Director will determine a reasonable format and content elements, taking into account the recommendations of GAOs, and including some or all of the items specified by the Committee. If presented to us for consideration, we may in a future amendment to the GO be more specific about the level of detail, format and content elements for the Operation Plan Summary.

Finally, we note that the Operation Plan Summary must include a summary of corrective action a GAO will take when the GAO is not in compliance with an Operation Standard. This reasonably moves this requirement from what was previously called the Certificate of Noncompliance to the Operation Plan Summary.

3.3.2. Filing (GO § 8.3.2 and Related Sections)

Each GAO will need a reasonable amount of time to prepare its Operation Plan Summary after the Executive Director specifies the format and content elements. For assets in active service, we provide 120 days. (GO § 8.3.2.1.) For other assets (e.g., new facilities, acquisitions), we provide that the Operation Plan Summary be filed with the Initial Certification. (GO § 8.3.2.2.) This later timeframe (for other assets) is reasonable since the format and contents will be known sufficiently in advance to permit feasible preparation.¹² The Operation Plan Summary is to be filed under oath, affirmation or verification of a corporate officer, just as is each formal filing with the Commission (i.e., Certification, Recertification, Notice, Contest of Assessed Fine). We make that requirement clear in the appropriate part of the GO. (GO § 15.3.)

Moreover, we add a scheduled fine for failure to file an Operation Plan Summary, just as we have for other formal filings (i.e., Initial Certification, Recertification, Notice of Material Change). (GO § 13.3, and Fines for Specified Violations in Appendix F.) As with all scheduled fines, the GAO's acceptance of this fine is voluntary. The expedited procedure inherent with a scheduled fine, however, reduces the time and expense that a GAO might otherwise face as a respondent in a formal proceeding when the GAO admits (or does not dispute) violating the GO regarding a relatively specific act (e.g., failure to file a particular document by a specified date).

3.3.3 Updates (GO § 8.3.2.3)

Each GAO must periodically file a verified re-certification that it continues to maintain Logbooks and implement a Maintenance Plan in compliance with requirements of the GO. The re-certifications are due every other year pursuant to a schedule to be determined by CPSD. (GO § 15.1.) We add the parallel requirement in GO § 15.1 that each GAO periodically file a verified re-certification regarding implementation of an Operation Plan.

Related to this re-certification, we require that the GAO update its Operation Plan Summary and file a verified copy of the update with CPSD every other year on a schedule to be determined by CPSD. (GO § 8.3.2.3.) We also add a scheduled fine for failure to file an update to the Operation Plan Summary when required. (GO § 13.3, Appendix F.) This will ensure that the Commission has information that is reasonably up-to-date and accurate. CPSD may also obtain this and other information at other times as needed. (GO § 10.0.)

3.4. Exemption (GO § 8.4)

We adopt the same exemption provisions that we have already adopted for Maintenance Standards.

3.5. Maintenance Standards

3.5.1. Consistency With Operation Standards

We use this opportunity to make GO provisions for Maintenance Standards essentially parallel to those for Operations Standards. A similar GO structure for both Maintenance and Operation Standards will facilitate use of the GO by both the regulated community and the Commission. It permits incorporation of reasonable clarifications based on what we have learned since adoption of GO 167 in May 2004 (e.g., whether or not there is a separate Corrective Plan). It also permits consistent treatment of similar issues raised by parties (e.g., use of Guidelines, contents of each Plan).

The revisions retain the same basic requirements for Maintenance Standards adopted in May 2004. For example, the Plan is used to show compliance with Standards, and is retained at the GAO's facility. Similarly, the verified Initial Certification and filing dates are the same. We use a better GO organization and structure, however, such as putting compliance and non-compliance as items under Initial Certification.

We also adopt the same language regarding the contents of the Maintenance Plan that is used for the Operation Plan, and do so for the same reasons. Thus, each GAO has reasonable flexibility in its preparation of the Maintenance Plan. We similarly clarify that the Maintenance Plan is to include information on a course of corrective action when the GAO's maintenance does not satisfy a Maintenance Standard.

3.5.2. Matrix and Maintenance Plan Summary

We also use parallel language for each plan summary. (GO §§ 7.3 and 8.3). We provide the following guidance on how this change is to be understood and implemented for the Maintenance Plan Summary given actions already undertaken with regard to the Maintenance Plan compliance matrix in Summer 2004.

The Maintenance Plan Summary is not required until 120 days after the Executive Director specifies the format and content. We expect that the Executive Director will seriously consider accepting a fully completed matrix for the Maintenance Plan Summary. We also expect the Executive Director to work with GAOs on the reasonable format and content for the Maintenance Plan Summary, just as we do for the Operation Plan Summary, and to solicit their recommendations at the appropriate time. The Executive Director should consider those recommendations in designing a Maintenance Plan Summary. If appropriate as determined by the Executive Director, the Maintenance Plan Summary might then be filed by a GAO if the GAO has not already successfully completed an entire Maintenance Plan matrix. Alternatively, the Executive Director may defer specifying the format and content elements until the next biennial update and filing in 2006 (GO § 7.3.2.3).

In any event, we do not adopt this parallel treatment for each Plan Summary to unreasonably increase the burden on GAOs or staff. Rather, we adopt this language as part of the development and evolution of the program. We expect it to be employed reasonably in fulfilling the legislative intent and purpose for this program, to assist the regulated community come into reasonable compliance, to permit each GAO to demonstrate its compliance, and to provide staff with an additional tool to facilitate implementation and enforcement.

3.6. Committee's Recommendation

Our adopted approach applies the Committee's recommendation:

"that the Commission implement the standards in a way that provides GAOs considerable flexibility in meeting the standards while retaining accountability. Accordingly, the Committee recommends that the Commission require GAOs to file for each power generation unit an Operation Plan...[with certain minimum requirements]... The Committee recommends that the Commission require the Operation Plans to be updated appropriately..." (Committee Operation Standards, October 27, 2004 at page 7.)

That is, each GAO will have a specific Maintenance Plan, and a specific Operation Plan. Each plan will demonstrate how the GAO's practices comply with each standard, or how and when compliance will be achieved. (GO §§ 7.2.1 and 8.2.1.) Each plan will be retained at the GAO's site or central business office. (GO §§ 7.2.2 and 8.2.2.) Each GAO has filed, or will file, a verified Initial Certification. (GO §§ 7.2.3, 7.2.4, 8.2.2, 8.2.4, 15.3.) Each GAO will file a verified Plan Summary showing how its operation and maintenance meets each Standard. Each GAO will periodically file a verified re-certification of compliance, and an updated verified Plan Summary. (GO §§ 7.3, 8.3, 15.1.1, 15.2, 15.3.) This approach provides considerable flexibility while retaining accountability, requires the filing of reasonable plans, and provides for appropriate updates.

3.7. GAO Compliance

Our adopted approach seeks to facilitate a GAO's compliance, while meeting our duties. We expect each GAO's Summary Plan (along with each GAO's detailed plan retained at the GAO's site, and all other relevant information) to be used by CPSD to determine whether or not the GAO is in compliance with GO 167.

Even if not in a GAO's plan, we expect CPSD to use the Recommended Guidelines for Operation Standards adopted herein in its determination of a GAO's compliance (and the Assessment Guidelines adopted in D.04-05-018 for Maintenance Standards). As explained above, failure to meet a Guideline should raise concern about a GAO's compliance, and failure to meet a Guideline in combination with other evidence may demonstrate a violation, but failure to meet one or more Guideline(s) does not by itself demonstrate a failure to comply with GO 167.

Calpine expresses concern that this approach:

"sends a mixed message by asserting that the guidelines are not enforceable requirements, but the failure to meet a guideline may indicate a violation. This language suggests that the guidelines are enforceable to some degree." (Calpine Supplemental Comments, November 3, 2004, page 3.)

We are not persuaded. Failure to meet a Guideline may indicate a violation, or it may not. "May" is not "is." The facts of each case will control. GAOs have flexibility to employ alternative ways to satisfy each Standard, as long as there is compliance with the Standard. The burden is on the GAO to comply, and either show compliance or a plan of corrective action. The GAO may elect to use and cite Guidelines to show compliance, or may use and cite other methods, as long as the Standard is met.

"1) A brief Unit Plan including the expected years the plant will remain in operation, whether the plant is regarded as a baseload plant or peaking plant (or some intermediate designation), what level of availability the GAO intends for the plant, whether the plant will operate year-round or only seasonally, and whether the GAO views the plant as a long-term resource that requires continued maintenance and investment. "2) A general description and timetable of how the GAO meets or plans to meet the provisions of each Operation Standard at each unit (or identical groups of units), identifying by title (and location) and summarizing the various operating policies, procedures, training programs and routines the GAO has in place (or will put in place) to demonstrate compliance with the Operation Standards. " (October 27, 2004 Operation Standards, Introduction, Implementation, page 7.)