HomeMy WebLinkAboutAgenda Report - May 4, 1988/—I.
PACIFIC GAS AND ELEGTRIC COMPANY
_ 77 BE _E STRr-ET, SAN FRANCISCO, CALIFORNIA 9-706 =..=?HCNE
cCY 7442. SAP: FR NCtSC�. CALtFCRNta _»i2J TELECOFIEP..(
JOANN SHAFFER -
ATTORNEY AT : 'r ..
April 15, 1988
Ms. Diane M. Elder
Public Utilities Commission
State of California
505 Van Ness Avenue
San Francisco, CA 94102
tr.
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BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
In the Matter of the Application of j
PACIFIC GAS AND ELECTRIC COMPANY for a }
Certificate of Public Convenience and )
Necessity Authorizing Participation in j
the California -Oregon Transmission j
Project. }
(U39E) }
Application 87-10-016
(Filed October 14, 1987)
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BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
In the Matter of the Application of )
PACIFIC GAS AND ELECTRIC COMPANY for a_ )
certificate of Public Convenience and )
Necessity Authorizing Participation in )
the California -Oregon Transmission )
Project. )
(U39 E) usyE))
Y
Application 87-10-018
(Filed October 14, 1987)
REPLY OF PACIFIC GAS AND ELECTRIC COMPANY
TO RESPONSE OF DIVISION OF l-ATEPAYER ADVOCATES
TO APPLICATION FOR REHEARING OF D.88-02-029
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INTRODUCTION
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south -of -Tesla issue, the issue which formed the basis for the
Commission's rejection of the COT Project application.
PG&E hereby files a reply to DRA's Response.
zZ
BACKGROUND
PG&E's Application contains a description of the background
of this case leading up to the Commission's Decision. After the
Commission issued the Decision rejecting PG&E's initial appeal of
the rejection of the COT Project application, PG&E filed an
application for rehearing in accordance with Rules 85 and 86.1 of
the Commission's Rules of Practice and Procedure specifically
12 alleging that the Commission's Decision violates the Permit
13 Streamlining Act (PSA) (Govt. Code 65920, et seq), and Public
14 Utilities Code Section 1746,
fln rznnpnnnn tt) th-e Appttcatlon; DRA believes that:
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PG&E's Application should be a o e
extent t h at the Commission hold one ori
days of haarinas to det_erminP whgth :
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(a) whether (sic) the "Transmission
Principles" identified in PG&E's JCPCNJ
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Application still represent even PG&E's
position on South -of -Tesla arrangements;
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(b) whether (sic)any other mutually
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' '.e transmission, arrangements
between 'PG&E and the.other'coparticipants
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are .likely to be reached in the.near
future:
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DRA' S FILING I S NOT A "RESPONSE" AS CONTEMPLATED UNDER RULE 86.2
AND, THEREFORE, SHOULD BE DISREGARDED
Rule 86.1 requires an applicant to "set forth specifically
the grounds on which the applicant considers the order or
decision of the Commission to be unlawful or erroneous",
FG&E's Application complies with Rule 86.1 by specifically
setting forth the legal errors which it believes requires a
reversal of the Decision, and presents legal arguments and
analysis supported with citations. Rule 86.2 provides for a
response to an application for rehearin0. A reasonable
interpretation of that rule is that such a filing will to
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PG&E's Application did not request a hearing on this issue! How
then can the Commission order hearings on that issue in the guise
of "granting" PG&E's Application? PG&E contends it cannot. The
only appropriate inquiry which can arise from PG&E's Application
must be within the context of the allegations of legal error as
contained therein. What then is the purpose of DRA's filing? It
is, again, an effort to misuse the CPCN Application's
completeness review as a device to address factual issues on the
merits. This is improper.
In the first round of appeal on the COT Project CPCN
application denial, the DRA failed to convince the Commission
that it should be able to continue discovery in the absence of an
accepted application. Now it.would go even further by using
PG&E's Application as a vehicle not only to do discovery but to
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require hearings on what it perceives to be a major issue in the
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case - all prior to acceptance of the CPCN application. It -is
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difficult to imagine a more flagrant violation of the Permit
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streamlining.Act and the Commission's procedures -than to require_
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hearings,_witrin the context --of an application -for rehearing, on
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a factual issue as a prerequisite for acceptance of a CPCN
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application. The issue'- for decision -:now is.whether the.
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Commission, ommitted legal error by redefining:-ahe project that
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is the subject. of PG&E'sCPCN`application.' The Commission says
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did, not,: PG&E. says it aia: This is a legal question, the=
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resolution of which will not be aided by DRA's proposed hearings..
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Assuming, arguendo, that, an application.for rehearing o f,_
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Decision 88-02-029 is an appropriate procedure to trigger
hearings and inquiry into a factual issue (a position with which
PG&E disagrees) , DRA's request must, still be denied. DRA did not
file an application for rehearing but is simply responding to
PG&E's Application. That DP.A did not apply Cor a rehearing of
Decision 88-02-029 is understandable. The Decision affirmed
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It then quotes from the Decision where the Commission states:
We do not believe, however, that we have
the authority under the statutes to delay
acceptance of an application in order to give
ourselves and our staff greater time to
consider the merits.
(Emphasis deleted. Response, p.11)
DP -'k apparently believes that because the Commission stated in
the Decision that it was without authority to delay acceptance of
the COT Project CPCN application in contravention of the
applicable statutes, its rejection of the application was per se
based on lawful grounds. If by the stroke of a pen the
Commission can make an absolute determination of the lawfulness.
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of its ac tions,` Public Utilities Code Section 1756 (which grants
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applicants the right to apply to the California Supreme Court for
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a review for the purpose of having the lawfulness cf an order or
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decision determined) may as well be repealed. It is not, the
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province of the Commission to ultimately determine if its acti
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comply with the law - it is the Court's. DRA apparently views
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the -statements and action of the Commission as sacrosanct. This
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simply not the case. Even the Coinmission must on occasion
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face -the -harsh light of judicial scrutiny. We now ask the;_
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Commission to rectify its legal error and eliminate the need for
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judicial review.
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CONCLUSION
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DRA criticizes PG&E!s Application for its focus on"the
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narrowest of legal arguments and its complete disregard of the V
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facts" (Response, p.8). DRA 's complaint ignores the fact that
legal error is a basis for an application for rehearing, is
E,:vidence of its preoccupation with factual inquiry in this case
to the exclusion of proper procedures, and demonstrates the
weakness of its position on the legal issues raised by PG&E.
PG&E has appealed to the Commission for rehearing of its
Decision on the basis of a violation of the law. DRA, faced
without legal arguments supporting denial, uses its Response to
1'ead for inquiry into factual matters. The Commission should
disregard this request. PG&E has the right to have its
Application for Rehearing judged on the issues which it has
raised. DRA does not have the right to use PG&E's Application as
a vehicle to compel hearings on the merits of a factual issue as
a prerequisite for the Commission's decision on PG&E's
Application,
Respectfully submitted,
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PROOF OF SERVICE BY MAIL
(C.C.P. Secs. 1013a(I) and 2015.5)
I, the andersigned, state that I am a citizen of the United
States and employed in the City and County of San Francisco; that I am
over the age of eighteen (IE) years and not a party to the within
cause; that my Business address is 77 Beale Street, San Francisco,
California 94106; and that OR the date set out below I deposited a
true copy of the attached
REPLY OF PACIFIC GAS AND ELECTRIC COMPANY TO RESPONSE
OF DIVISION OF RATEPAYER ADVOCATES TO PG&E's APPLICATION
FOR REHEARING OF D.88-02-029.
sealed in envelope(s) with postage thereon fully prepaid in a mailbox
regularly maintained by the Government of the United States in the
said City and County, addressed as follows:
(See attached Service List)
i
ti
I certify under, penalty `of
perjury under the Iaws
of the
St�tof Cal=forbid that the foregoing,is true anti corrects.
mat
Signature
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