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State Utility Regulators Will Again Consider Releasing San Onofre Emails

THE SAN DIEGO UNION-TRIBUNE
http://www.sandiegouniontribune.com/news/watchdog/sd-me-puc-emails-20170426-story.html

The day after then-Sen. Barbara Boxer called on the U.S. Department of Justice to investigate Southern California Edison’s handling of the San Onofre nuclear plant, utility executive Michael Hoover sent an urgent email to another company official.

“We have a small window of opportunity to work with parties to implement a shutdown in exchange for getting our money back,” Hoover wrote to senior vice president Les Starck May 29, 2013. “That window will close soon and we will lose a very good opportunity.”

The next week, Edison International CEO Ted Craver placed a call to Gov. Jerry Brown — then golfing with President Barack Obama in Rancho Mirage — to inform the governor that the company decided to close the broken power plant for good.

Craver later emailed his board of directors, alerting them to the decision and recounting his conversation with Brown.

The whirlwind of private communications and regulatory decisions surrounding the 2012 closure of the San Onofre plant became clearer after emails and other documents were released under a multitude of requests under the California Public Records Act.

Yet the California Public Utilities Commission continues to withhold specific emails between regulators and the Governor’s Office that could shed more light on why utility ratepayers are being charged billions of dollars for failure of the power plant north of Oceanside.

The commission on Thursday will consider whether to release more than 60 San Onofre-related emails exchanged between commission President Michael Picker and the Governor’s Office. The staff’s recommendation is that the board not release the emails to San Diego consumer attorney Michael Aguirre.

The item is posted on the commission’s consent agenda, where matters considered routine and not worthy of public debate are voted on in bulk. According to the draft resolution, the emails are not subject to disclosure because they are privileged communications.

“Aguirre claims the withheld records should be disclosed because the ‘public is highly interested in knowing the role the Governor’s office played in connection with San Onofre’,” it states.

”The plain language of Govt. Code section 6254(l), however, shows that the exemption to disclosure of documents exchanged with the Governor’s Office is an absolute exemption; it does not include a balancing test. Therefore, the public’s alleged interests in the disclosure of these records are not relevant.”

The agenda item Thursday follows a lawsuit Aguirre filed in 2015, arguing that the commission was improperly withholding the emails.

A San Francisco Superior Court judge was sympathetic to Aguirre’s case.

“There’s something about this that just doesn’t sound right, about stonewalling public information like this,” Judge Ernest Goldsmith told commission lawyers. “That’s the optics of where we are: There’s something the PUC doesn’t want out there.”

Before he could review the emails in chambers to decide whether they should be released, an appeals court sent the dispute back to the commission.

The appeals court agreed with the the utilities commission that the commission itself — not a judge — is the right place to go to contest a records request rejection by the commission.

A denial by the commission on Thursday could then be appealed to the state appeals court.

Aguirre and law partner Maria Severson complained that the commission excluded from the public file their petition outlining the events surrounding the closure — including emails like the one Hoover sent his colleague in 2013, when the company was deciding whether to repair or abandon the nuclear plant.

“How far will they go to keep their secrets?” Severson asked.

The San Diego lawyers said the emails between Picker and the Governor’s Office could explain how ratepayers ended up being charged $3.3 billion of the $4.7 billion in premature closure costs.

“They fought us at the Court of Appeal and now they fail to publicly disclose the damning evidence that commands release of the records,” Severson said. “By placing the matter on consent agenda without a hearing, they are again shutting out the public.”

Liza Tucker of Consumer Watchdog, an advocacy group based in Santa Monica, said utility regulators have no business withholding records related to the plant closure and its settlement costs.

“That is an excuse to make sure the public never gets to the bottom of what really went down in the settlement over San Onofre,” she said. “It doesn’t answer the question about whether government officials helped Southern California Edison evade responsibility for one of the biggest financial and environmental disasters in the state.”

The commission approved the San Onofre settlement in November 2014, allowing Edison to recover most of its shutdown costs.

Three months later, Edison disclosed a private meeting with then-commission President Michael Peevey in 2013, when they agreed to deal points very similar to the agreement eventually adopted..

That meeting, held in a Warsaw, Poland hotel during an industry junket, has been under criminal investigation for more than two years. No charges have been filed.

Earlier this year, after a federal appeals court agreed to hear a separate Aguirre lawsuit challenging the San Onofre settlement, regulators agreed to reopen the proceeding. Mediation talks are scheduled in June.

jeff.mcdonald@sduniontribune.com (619) 293-1708 @sdutMcDonald