-: It's time to get started.
Is the court reporter ready?
Looks good.
We will be on the record.
The Commission will please come to order.
Good morning, everyone.
This is the time and the place
for the pre hearing conference
for complaint 21-1-014 County of Santa Cruz
versus Pacific Gas and Electric company.
The complaint was filed on January 25th, 2021.
PG&E was granted an extension to file their answer
and PG&E did so on April 29th, 2021.
PG&E also filed a motion to dismiss the complaint
on April 29th, 2021.
And the response from the County of Santa Cruz
to the motion to dismiss is due no later than tomorrow.
My name is Patrick Doherty
and I am one of the assigned Administrative Law Judges
for this proceeding.
The other co-signed Administrative Law Judge is Garrett Toy.
He is with us today
and the assigned Commissioner is President Batjer.
The purpose of a pre hearing conference
is to discuss the scope and schedule of the proceeding.
As such my agenda
for today is first to go over the service list
then discuss the categorization of this proceeding
followed by the scope of the issues,
and finally to discuss the schedule
for the remainder of the proceeding.
A determination on the aforementioned topics
will be finalized in a scoping ruling issued
by the assigned Commissioner's office.
A reminder for everyone
including myself to please speak slowly and clearly
or the benefit of our court reporter
and not to interrupt or speak over one another.
If you wish to make a comment or ask a question
please raise your hand so that I can call on you.
Are there any initial questions
or concerns before we move on?
Okay, hearing none.
The first order of business is to develop the
service list pursuant to rule 1.4
the complainant and the defendant are automatically parties
to the proceeding or each company or organization.
There will be one representative listed as the party.
All others will be listed as information only.
I will now read the names of the current parties
to the proceeding County of Santa Cruz and PG&E.
Is there anyone else with us today wishing to become a party
to this proceeding?
Hearing none let's move on
to categorization pursuant to rule 7.1 B
this proceeding has been categorized
as adjudicatory in the instructions to answer filed
on February 12th, 2021, no appeal
that categorization was lodged pursuant to rule 7.6
and therefore the adjudicatory categorizations stands.
The adjudicatory categorization triggers ex parte
communication rules described in rule 8.2 B
as a reminder of the parties that subsection
of rule 8.2 states that ex parte communications
and communications concerning procedural matters
between interested persons and decision-makers other
than the assigned Administrative Law Judges are prohibited.
Parties are also reminded
that the Commission may impose penalties
for violation of this rule.
Let's go ahead and move on
to the issues in the scope of the, of the proceeding based
on the complaint and the answer to the complaint.
I have preliminarily determined the scope
of the proceeding to be as follows.
Number one, determining the laws, rules, and orders
for which the Commission is authorized
to impose remedies upon PG&E.
If PG&E is determined to have violated those laws or orders.
Number two, determining if PG&E violated any of the laws
rules or orders for which the Commission is
authorized to impose remedies.
Resolving this issue will require
making factual findings regarding the PG&E activities
that are alleged in the complaint.
And number three, if a violation is determined
to have occurred,
what is the appropriate remedy to impose?
Do parties have any additional issues they wish to propose
or comments on the preliminary determination?
Okay, hearing no questions or comments
I propose to recommend these issues
to President Batjer for inclusion
in the scoping memo, because the second issue is necessarily
one of fact, I believe that evidentiary hearing is required
in this proceeding.
I note that the complainant also requested a hearing.
Do parties have any comment on the need hearing?
A hearing no comments.
I will recommend that we include hearings in the schedule
for this proceeding.
Now with respect to a schedule, the complainant proposed
that the hearing take place in March, 2021, we are obviously
not gonna make that date.
I do want to ensure that parties are provided
with adequate time for discovery and that the Commission is
afforded at least a few weeks to draft
and file a scoping memo.
Given those concerns, do parties have a view
on the best time for evidentiary hearing in this proceeding
-: For PG&E,
This is Laurie Edelstein from Steptoe.
We are concerned first about the scope of the proceeding
not in terms of the way
in which you laid out what the issues are
but rather we believe there are certain threshold
questions that to be decided first
in terms of the laws, rules, and orders
for which the Commission is authorized to
adjudicate the issues that have been raised
by the county of Santa Cruz.
And it would be helpful for us
if we first had a determination on those threshold questions
so that we would understand what the scope
of any evidentiary proceeding would be.
-: Thank you for that, Mr. Zazueta
do you, do you have a response
to that from the county of Santa Cruz's position?
-: Well, I believe that we do need to reach that threshold.
The question I'm, I think we're ready to proceed
to evidentiary hearings, however
as this is a somewhat unfamiliar territory for us
we'd invite Your Honor to lay out kind of, I guess
a path forward for any determinations that need to be made
as to whether or not there's a determination
for the laws, rules and orders
which are CQC is authorized to rule on in this matter.
-: Well, I would note for the record
that the motion to dismiss considers this issue
among several others.
And I suppose it's possible that a ruling
on the motion to dismiss could clarify that the laws
rules and orders are that can also be achieved
in the scoping memo with the parties being minimal.
If the Commission were to, through either
of those vehicles on what the specific laws, rules
and orders are they within the scope of this proceeding.
-: I believe the county would be comfortable
after being allowed to file its reply or opposition
to the motion to dismiss tomorrow as scheduled.
And then I welcome any comments
from my colleague, Justin Graham
but I think that would be appropriate to move forward after
after a ruling has given on that.
-: And we've had to request an opportunity
to submit a reply as well
(indistinct)
We would request an opportunity to submit a reply
on the motion to dismiss
-: Okay, the rules offers you that opportunity Ms. Edelstein.
So upon receipt of the response from the county
of Santa Cruz, PG&E can contemplate making such a request
pursuant to our rules.
You, you may request the opportunity to apply it
to the response.
With respect though, to the question
of addressing which laws, rules, and orders are
within the scope of the subtlety.
I can, I presume that PG&E is comfortable if
either the scoping memo and ruling
or the ruling on the motion considers that particular issue?
-: Yes we are.
-: I think that makes sense.
We should certainly do.
So given that the parties believe it's necessary
to prepare for hearing.
So we will aim to do so assuming that
because I don't wanna say anything
on the record that would be prejudicial
to the outcome of that determination.
If we assume that all of the laws
rules and orders alleged by the County of Santa Cruz
are to be considered in this proceeding.
And therefore we need to prepare for hearing on those.
What do parties feel like the best time
for hearing would be in this proceeding?
-: I think we would need to have a substantial period
in order to do adequate discovery.
In this case, there are a number
of factual questions that have been raised
by the county's complaint.
So we think that we need to build
in sufficient time to do discovery.
-: Okay.
So I-
-: Excuse me, Your Honor,
if I may, we also want to add
that there may be some spoilage
of certain evidence in the field.
So we certainly think that there's going to
be extensive discovery in this case.
And, but also to take into consideration
that just the timing as we enter into a new fire season
as we have debris that is currently spoiling
or could spoil in the field, I think it's,
I guess,
something that we would want to keep
in mind as far as a briefing schedule or hearing schedule.
-: Okay, so I'm gonna throw some timelines out there
and see how the parties respond, because
in the scoping memo, I wanna make sure we can be specific
so that the parties have expectations
about when discovery will be completed and when
they need to prepare direct testimony and then the rebuttal.
So if discovery extended through the summer
and were to end by September, would that be sufficient time
for the parties then to prepare direct testimony
battle testimony, and then hearing by the end of the year?
-: I think to some extent it will depend
on the number of issues that are in the scope
of the proceeding, which is why I'm hesitating
on a green twist as a schedule right now
because I think the scope will be different depending
on what issues remain in the proceeding.
If we had a sense
of when we could receive the scoping memo that laid
out the issues that were within scope
it would be helpful then to be able to assess at that point
what the procedural schedule would be.
Is that a possibility?
-: It certainly is.
And I think, again, the premise of my question
or I'm sorry, the hypothetical that I'm asking
about is if we assume that all of the laws, rules
and orders are within scope as alleged by the county
what would the schedule look like?
Because then I can, in the event that possibly
the scope is more restricted, we can work back from that.
So I'm trying to figure out
what's the maximum amount of time that the parties need.
-: I think we would certainly through the summer
if not longer through the fall, the factual, as well
as expert testimony in the case that will be necessary.
-: Okay. Mr. Zazueta do you concur?
-: Yeah.
September actually seems like a fair for a date
through the summer, I think is adequate
for the county to prepare.
-: Okay.
Thank you for this information.
I will keep it in mind as we go through drafting
the scoping memo.
If I presume then that discovery ends, let's say by the end
of September, indifference to the number of issues
that may be in scope, would it be appropriate to
consider prepared, direct testimony to be served by November
with rebuttal testimony then do
before the holidays in December
-: Yes, I think that that's possible.
-: Yes, the county's a minimal to them.
-: Okay.
Thank you.
That helps me start to frame
out the schedule of the proceeding.
So I appreciate that.
And in that event, if we stick to that schedule and that
then we'd be looking at hearing early in the year, 2022.
Okay.
That ends my need to discuss the schedule.
ALJ Toy, do you have any questions
or concerns that you would like to address at this time?
-: Sure. Since we're all here.
Hi everyone.
Thanks for being here today.
I had a couple of questions
about the outstanding motion to dismiss
since we're all here.
And I apologize if the questions, some of us will be covered
in the County of Santa Cruz's response tomorrow
but I wanted to make sure I had the party's thoughts
on a few things.
So presuming the county argues
that the Commission does have jurisdiction
for all the claims laid out
in the complaint and correct me if that's changed
but can I get some sense of the county's thoughts
on why the Commission would be the preferable venue
I guess, for some of the non public utilities code
or general order violations?
-: Yes. Can I defer to my colleague, Justin Graham?
I know that I'm being sure something here is, but you know
we are sharing our defense here.
Absolutely. Thanks.
-: Thank you, Your Honor.
And I apologize for my audio problems, Your Honor, it may be
that the Commission is the only venue
that's appropriate for the kind of relates-
-: To be off the record or off the record.
Mr. Graham, your, your volume is quite low.
If there's an ability to turn
up the gain on your incident, that would be appreciated.
-: And I need him to start over, please, Your Honor.
Cause I can barely hear.
Thank you. -: Understood.
-: Back on the record, go ahead Mr. Gray.
-: Off the record is it better, Your Honor.
-: A little bit louder.
Maybe if you speak a little bit louder
-: Better now, Your Honor.
-: I think that's a little court reporter.
Is that good?
-: Can you say something again?
Mr. Graham please?
-: Yes. I'm sorry.
Is this better?
-: Yes, thank you.
-: Okay. Back on the record.
-: Yes, Your Honor.
It may be that the CPC or
that the formal complaint process is the only location where
or only venue where the county's relief is
can be appropriately determined.
Your Honor, we have received communications
from PG&E as recently as January 25th
where it argues that the sole venue for determination
of compliance with general order 95, rule 35
complaints is the formal complaint process before the CQC.
And while we have alleged other violations of law,
we the county sees those violations
of law as essentially all characteristic
of how PG&E has implemented its activities
that it claims that are pursuant to general order 95
they're illustrative rather than necessarily
something that the Commission itself needs to determine.
Your Honor, we're also, we have also seen pleadings
from superior court cases where both the both PG&E
and and the Commission Amicus briefs
have argued that complaints having to do
with vegetation management activities conducted pursuant
to general order 95
the sole venue for resulting those complaints
is a formal complaint proceeding before the CPC.
And so here we are.
We think that, you know, as far
as the violation is alleged to the notice of violation
the factual elements are much more
or the factual allegations in those notices
of violation are much more illustrative
of the actual problems that we've seen with this program.
So an answer to your question, this
this is the sole venue that we think would be
appropriate to hear these complaints.
-: Okay. And I have a series of questions now, PG&E
get your thoughts at the end of them.
So can I get some sense
of the county's thoughts on why it believes it
should be the proper entity to prosecute some
of these non public utilities code complaints, as opposed
to some of the agencies issuing the notices of violation?
-: Yes, Your Honor,
we don't see this as prosecutorial
as far as those violations.
As I previously said, you really, perhaps
the best way to think about this is that coastal,
coastal Commission and Cal fire all have their
independent enforcement project processes.
But those processes are designed to deal
with remedies are designed to deal
with violations of the code that are
of their codes that are designed to prevent harm
to the citizens of the state
including citizens of Santa Cruz County.
We have a concern
that the activities that PG&E has conducted
and continues to conduct will continue to be not
in compliance with those sections.
And so this really goes to how PG conducts its business
and how it conducts its its vegetation management practices.
And we think that they're, you know
far from determining the
the validity of the notices of violation
there should be some input and ruling
from this Commission as to whether it is reasonable
for PG&E to conduct these activities in the coastal zone
without seeking permits from the coastal Commission
whether it's reasonable to, for PG&E
to conduct these activities that would normally be subject
to timber operations permits
without seeking the proper permitting from, from Cal fire.
And so really what we were asking the Commission to re weigh
in on our PG&E business practices
and its vegetation management practices.
-: Okay, thank you.
And this, the complaint proceeds on all claims
does the county envision needing the participation
of these other agencies?
-: The county would not object to it.
It might be constructive
and it might be beneficial for the Commission
to if we're the Commission to invite briefing from
for example, the coastal Commission or, or
from Cal fire as to what proper compliance
with their procedures would look like
and they are subject matter experts.
And I think that would be, you know, appropriate.
I don't know that we take a position one way
or another as to whether it's necessary.
-: Okay, thank you.
PG&E, do you have any comments on any of that
keeping in mind that we have your answers?
So we have your thoughts on most of that
-: Our papers, both our motion to dismiss in our answer
layout our positions on these issues.
It's still not clear to me whether
the County of Santa Cruz is asking for the Commission to
enforce the notices of violation or not.
I think I heard two separate things that Mr. Graham said
but as we lay out in our papers
we do not believe the Commission has jurisdiction to
enforce the forest practice act to enforce the coastal code
or the water code.
And, and we don't think
that this is the proper forum to address those issues.
I think Your Honor's question in terms of the relevance
of the other parties and it PG&E would welcome a discussion
with all relevant agencies present.
We don't think the complaint proceeding is
the right way to address some
of the issues that Mr. Graham has raised.
It seems like he's raising questions more generally
about PG&E practices going forward
not necessarily what has happened in the past.
And this would
that would not be inappropriate issues to be raised
in this complaint proceeding.
We have been engaging in discussions
with the various agencies to address the concerns
that have been raised in the notices of violation.
And we are working to address any concerns.
But again, we don't think this complaint proceeding
is the proper way to go about addressing these issues.
-: Thank you, Ms. Edelstein's.
Mr. Graham, do you have any comments on that?
-: No Your Honor.
-: Sorry. I raised my hand.
I don't know if you, if that, if that came up or not
but just a brief response that just to illustrate again
we're not asking the Commission to adjudicate
the NOVs that were, that were issued.
However, we're using them more
of a fact-based evidence standard that PG&E
in this instance has performed as if the coastal act
or the forest practice rules do not apply
to their activities, to their fork, to their
in a vegetation management activities.
And really using these NOVs is to illustrate that fact
we're not asking the Commission to adjudicate these NOVs
these notices of violations.
We would like PG&E to abide by the coastal act
abide by the forest practice rules.
And it seems to be there some disconnect between PG&E
and the CQC and the coastal Commission and Cal fire
as to what applies to PG&E in these instances.
And we're in dire need of some guidance.
And I believe PG&E is in dire need of some guidance.
And this venue, the Commission before the Commission
is the ideal place to seek that guidance.
-: I'm sorry. Mr. Zazueta,
I'm afraid you may have opened a can of worms.
And now I have a question you just said
that you don't want us to adjudicate
whether or not PG&E has violated the coast lag.
However you want us to provide some guidance
on whether or not they should comply with the coastal act.
As a matter of law, I would have assumed
that PG&E must comply with whatever laws apply to it.
So what exactly are you seeking
from us if you're not seeking an adjudication
on whether or not PG&E has violated that coastal act?
For example, I suppose that it's not necessarily the
because the coastal Commission has jurisdiction to, to
to adjudicate it's it has enforcement jurisdiction
to adjudicate its notices of violation.
We're asking that PG&E comply with the coastal act.
And that, I guess it's not necessarily that the Commission
adjudicate the specifics of the notices of violation
for Cal fire and for the coastal Commission, but
that there is a order and decision informing PG
and E that it is subject to the coastal act because
as we saw and the County of Santa Cruz, there was
no coastal development permit sought for the activities
performed after our wildfire season in 2020
-: Is your allegation.
Forgive me.
And I hate to ask these questions at a PHC, but
because the can has been opened, I am is your allegation
that somehow the Commission has provided PG&E
with the ability to circumvent because, or forestry acts
based upon Commissioned rules or orders.
That's not our allegation here.
Okay.
I think it's, it's more along the lines that there
there hasn't been, or at least it hasn't been clear from
from the evidence that we've seen or any documentation
or case law that we've read, that there is clear standards
through which the PG&E is subject to.
-: I'm sorry, Judge Toy.
I hijacked your line of questioning.
-: It is okay, I had the same question.
-: Did you have any others?
-: I think at this point you have enough to go on-
-: And I, I appreciate this actually a lot to, to discuss
obviously a lot of this will be laid out in our response
to the motion to dismiss, but this is very helpful
for the county to discuss with Your Honors
to get a better idea of
of what exactly is left to be answered.
-: Okay. Thank you.
Ms. Edelstein do you have comment?
-: Yeah.
So I just wanted to add that, you know,
PG&E emergency response efforts in response
to the fires was carried out in coordination
with Cal fire and PG&E has been in touch
with the other agency.
Again, we do not believe this complaint.
Proceeding is the proper forum, nor do we believe the
Commission has jurisdiction to adjudicate whether
or not PG&E required to obtain certain permits
under either the forest practice acts
or the water code or the coastal act.
Those are issues to be determined by those agencies.
-: Okay. Thank you.
Are there any other procedural matters that the
parties believe need to be addressed today county?
-: No, Your Honor.
Thank you, PG&E.
-: Well, just one other matter
in terms of either alternative dispute resolutions
or settlement discussions, we happen engaging
in discussions with the county PG&E
Welcome to continuing those discussions as well
either through the Commission's ADR process
or outside of that process directly with the county.
-: Certainly we welcome the parties,
utilizing our IDR process.
I'm not sure if the county's familiar with it
but we have a website detailing the alternative
dispute resolution process.
Basically the parties sit down with a mediator.
One of the ALJs typically here
at the Commission to work through the facts
and the laws to sort of come to a minimal conclusion.
Going off the record for a second court reporter.
Do you need anything else from us?
Thank you.
You know, Jake, Jordy
is there anything else you'd like to discuss?
-: No, I'm good ALJ.
Thank you.
Thanks. Say back on the record
there being nothing else to discuss today.
We are adjourned.
Thank you everyone for coming today.
-: Thank you.
Thank you.