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Attorney Mike Aguirre will argue this afternoon (April 16) that U.S. District court judge Cathy Ann Bencivengo was wrong when she ruled tentatively earlier this week that Aguirre's "taking" case could not be heard in federal court because the California Public Utilities Commission had already held a hearing on the matter. There was no official hearing, Aguirre will tell the judge. "The decision-making took place outside duly established procedures," he will argue.

Cathy Ann Bencivengo

Cathy Ann Bencivengo

On March 26, 2013, former utilities commission president Michael Peevey secretly huddled with a top executive of Southern California Edison. Notes of that meeting, seized by investigators, show that the two sketched out a scheme by which ratepayers would pick up the tab for 70 percent of the closing of the San Onofre nuclear plant. Those notes turned out to reflect almost exactly what happened.

The meeting that the judge says was a hearing was really a press conference, Aguirre will argue. The decision had already been made secretly. The judge said earlier this week that since there had already been a meeting, federal court was not the right venue for Aguirre's suit, which charges that the secret agreement was essentially an unconstitutional taking of property without the paying of a fair price.

Aguirre wants to amend his suit. Bencivengo seemed adamant in her initial decision, saying that if she stuck with it, Aguirre's suit could not be brought back. That's dismissing a suit "with prejudice."

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Don Bauder April 16, 2015 @ 4:01 p.m.

JUDGE ADJOURNS HEARING, SAYS WILL ISSUE DECISION SHORTLY. Judge Bencivengo this afternoon listened to both Aguirre and a lawyer for Edison (each had ten minutes), and adjourned the meeting, saying she will rule shortly.

The Edison lawyer argued the proper venue for the suit was state court. But in an interview, Aguirre said that in state court, "In any matter involving the CPUC, you have to get permission" to go to state court, and a small percentage of the cases even make it to the court room.

In today's hearing, Aguirre referred to the notes of the Warsaw, Poland, meeting between Peevey and an Edison executive. Edison had to report an ex parte meeting within three days. Edison took two years, and only then because it was under duresss. When Aguirre pointed out that the scenario that Peevey and the Edison executive sketched out was almost exactly the scenario that eventuated. (Peevey had been president of Edison before he became president of the CPUC.) The Edison lawyer said Peevey and his company's executive "expressed some views." Some in the courtroom had to hold back snickers.

Judge Bencivengo intends to rule on whether there was a "fair and reasonable" hearing in the decision that stuck ratepayers with 70 percent of the bill for the failure of the nuclear plant.

Aguirre argued that under CPUC rules, all parties should have had a notice, said Maria Severson, Aguirre's law partner, in a separate interview. There was no notice because the meeting was completely secret.

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Jimgee April 16, 2015 @ 4:36 p.m.

This is how people of all ages lose respect for government. It seems transparently obvious that the ratepayers were denied a say in this matter, but those who are paid to do something about it (especially a judge), don't. I hope she does a better job with her final ruling.

P.S. Don, thought you might find amusing the UT's coverage of this matter. I sure have. Every story I have read in the UT has left out any mention of Aguirre. Can't imagine why.

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Don Bauder April 16, 2015 @ 6:13 p.m.

danfogel: There are more, too. Having said that, though, I would not be surprised if UT editors are trying not to use Aguirre's name often. But it is difficult to write this story without using the name of Aguirre and his law partner, Maria Severson. Best, Don Bauder

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Don Bauder April 16, 2015 @ 6:10 p.m.

Jimgee: Jeff McDonald is covering the story for the UT and is doing an excellent job, in my judgment. I was extremely ill from Feb. 17 into April, and got behind on this story. I am trying to catch up. I have seen Aguirre's name in Jeff's stories. Best, Don Bauder

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Don Bauder April 17, 2015 @ 10:11 a.m.

Wabbitsd: The doctors said in February that I would recover by mid-April. I am not completely recovered, but feel much better. Best, Don Bauder

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CaptD April 17, 2015 @ 2:13 p.m.

Don - I agree, Jeff McDonald has really stepped up and has done a good job of keeping this Multi-Billion Debacle in the news, despite the hesitation by most if not all local MSM (not counting the SD Reader) to remain "Mum" since it concerns two local "power houses" (pun intended).

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Don Bauder April 17, 2015 @ 5:57 p.m.

CaptD: At least, the Reader and the UT believe this is a very important story. The Reader has always fought scams against consumers. The government is a major scamster in this one. This is a classic example of corrupt regulation. The statements by the Office of Ratepayer Advocates and TURN, released today, are extremely important in showing this corruption. Best, Don Bauder

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Diogenes April 16, 2015 @ 6:57 p.m.

The judge will decide if there was a meaningful hearing before the PUC. If there were undisclosed ex parte contacts in Poland with the decision-maker and no hearings into the issue of "prudence, " it would serm to be a no-brainer that the ratepayers were ordained to bailout the utility's shareholders.

Phase Three was never had. That involved the critical fault issue or "prudence "(lack thereof). How can an allocation of damages be made without knowing who was at fault. Hint, hint - it was Not the ratepayers. (I should have been a federal judge.)

There had been a substitution of alloys that caused vibrations and the tubes fractured. There was no relicensing hearing before the NRC. Edison and Southern California Edison designed the alloy. Their negligence caused the material failure of the metal (alloy).

It looks like Edison wants to cover up their fault. Justice and due process demand a full and impartial hearing. Nothing less...

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Don Bauder April 17, 2015 @ 10:23 a.m.

Diogenes: You are right on all points. See the item I put up this morning -- at the bottom of the responses to this blog -- noting that the Office of Ratepayer Advocates, which is part of the CPUC, says it is "outraged" at the secret Poland huddle. However, the office wants some money returned to ratepayers, but not a significant amount. Best, Don Bauder

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Jimgee April 16, 2015 @ 6:57 p.m.

Don & Dan, I stand corrected. jimgee

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Don Bauder April 17, 2015 @ 11:04 a.m.

jimgee: But you are correct in your original assessment. This whole matter sheds light on why people don't believe in government anymore -- the administrative branch, judicial branch, legislative branch, and particularly so-called regulators.

It is critical that you and others on this blog read the two items I posted below on this morning's statements by the Office of Ratepayer Advocates and TURN. Best, Don Bauder

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Visduh April 16, 2015 @ 7:41 p.m.

Some details would help. Where does this federal judge sit? And why was the case filed in her division? Who appointed her? If she dismisses this "with prejudice", does that mean that it can be taken to the 9th Circus? That appellate court is a wild card, and might be willing/able to conclude just about anything. I doubt that Mike and Maria are totally stymied if this judge says no. It just makes it more difficult.

A "plain folks" support group for Mike Aguirre and Maria Severson is appropriate at this point. Can't someone set up a tax deductible foundation or other non-profit that will help them and provide financial support for this scandalous saga?

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Diogenes April 16, 2015 @ 10 p.m.

Judge sits on a bench (bad joke) - you mean in what Department? - she is in the Federal District Court for the Southern District. The Schwartz Federal Building on Front Street.

The clerk accepts complaint for filing, then the judge is assigned by the clerk. Affidavit of prejudice may be filed in state court for any reason. That is called a "preemptory writ." Federal judges can only be challenged for cause. I do not think there is a peremptory challenge I'm federal court.

The order of dismissal with prejudice is an order that can be appealed. The Complaint cannot be amended and refiled. If it is dismissed without prejudice, with leave to amend, it could be amended and refiled. If the dismissal was based on improper venue, then it could be refiled in another District.

This judge indicated that Aguirre should somehow go to state court. I wonder if there is a state court remedy. I am not familiar with the route of judicial review of PUC orders. Maybe a writ of mandate. .... to review.

I had a federal dismissal with prejudice in federal court in Los Angeles. We appealed to the Ninth Circuit Court of Appeals and won. That was a lot of work.

I do not know who appointed the judge. Seems like it must have been the Obama administration. I have not heard of her. So I'm assuming it was not Bush.

Democrats presumably would be more consumer friendly but Governor Gray Davis appointed Michael Peevey and Governor Brown is his friend.

Federal judges are appointed for life I believe. They have much more independence.

If there is no adequate state court remedy then the federal court should not dismiss the case. That is reason in and of itself to hear the case on constitutional grounds. The state court system is denying due process by its inadequate procedures and lack of an appropriate appeal process. That is Aguirre argument aleast as I understand it.

I hope this information helps. Just attend the hearing to show moral support.

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Visduh April 17, 2015 @ 7:24 a.m.

My question had to do with the city this judge is in. Mike could have filed in LA or SF or Sacramento for all I knew. So, this one is local, huh. And those federal judges, once appointed and approved can only be removed by Congress through the process of impeachment. That's been done a few times, but only a few times. We can only speculate why she's taking such a hard-nosed approach with this case. Yes, their lifetime tenure makes those federal judges quite independent, and when they rule wisely can be a force for justice. But when one misses the boat, it can be very sad. Let's hope she reconsiders.

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Don Bauder April 17, 2015 @ 6:03 p.m.

Visduh: I don't see how any honest person can read those statements by the Office of Ratepayer Advocates and TURN and somehow conclude that there was a fair hearing. The settlement was dictated by the president in a secret meeting, and then a few tweaks were made to make it look like it was somewhat different from the Warsaw agreement. TURN was told by Peevey about the meeting, but did not report this to authorities. Best, Don Bauder

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Don Bauder April 17, 2015 @ 12:50 p.m.

Diogenes: Judge Bencivengo was named to the court by Barack Obama in 2012. She got her B.A. and M.A. from Rutgers, and her law degree in 1988 from the University of Michigan. She was a federal magistrate between 2005 and 2012, when she was named to the court. Best, Don Bauder

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danfogel April 17, 2015 @ 2:46 p.m.

don bauder When her confirmation vote was held in Feb. 2012, the Senate make up was 51/47/2. The vote was 90 in favor and 6 against. The 6 against were Republicans. So roughly 85% of the voting Republicans voted in favor of her nomination. It's not like she barely skated by.

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Don Bauder April 17, 2015 @ 6:04 p.m.

danfogel: She had solid backing. Best, Don Bauder

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ImJustABill April 17, 2015 @ 8:09 p.m.

The judge sits on her behind (even worse joke)

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Don Bauder April 18, 2015 @ 6:54 a.m.

ImJustABill: But you ARE correct: judges sit on their rear ends. Who doesn't? Best, Don Bauder

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Don Bauder April 17, 2015 @ 11:07 a.m.

Visduh: I agree that there should be a tax-deductible foundation, if possible, to support the legal efforts of Aguirre and Severson.

If the CPUC, the courts, the governor, the so-called consumer advocates get away with this outrage, your utility bills will continue skyrocketing. The bandits will realize they can continue to get away with this fleecing of ratepayers. Best, Don Bauder

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Don Bauder April 17, 2015 @ 7:51 a.m.

JUDGE RULES AGAINST RATEPAYERS, NEVER TAKES THE WARSAW MEETING INTO ACCOUNT. Late yesterday (April 16), about an hour after the hearing, Judge Bencivengo, as expected, ruled against Aguirre's "taking" suit, accepting the arguments of Southern California Edison.

Bencivengo never even considered the thrust of Aguirre's argument -- the question of whether the secret Warsaw hearing, at which the outline of the eventual decision was put on paper, resulted in an unfair hearing.

Aguirre thinks his side will win the appellate battle. "The sole question now is whether ratepayers were give a fair hearing before the CPUC," he says. The notes from the secret Warsaw meeting clearly show that ratepayers were, as usual, cheated, and the utility got off completely. This is typical of courts' handling of CPUC matters. "This will go on for another two years," says Aguirre.

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danfogel April 17, 2015 @ 8:30 a.m.

Well, that certainly went as I expected. Despite what Aguirre seems to think his chances are, I think things will continue to go against him and I see him accomplishing very little, if anything. He's gone that route before and it has cost him. He missed a couple of things as city attorney, pissed off enough people and got his ass kicked in the next election, by Goldsmith of all people. You know what they say, the road to hell is paved with good intentions.

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Don Bauder April 17, 2015 @ 11:09 a.m.

danfogel: You may well be right -- fighting crime is futile -- but see the statements of the Office of Ratepayer Advocates and TURN that I posted this morning. They are trying to get themselves off the hook. They know crimes have been committed and they were involved. Best, Don Bauder

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dwbat April 17, 2015 @ 9:41 a.m.

Question: If Peevey were to get indicted in the future (either by CA or the feds), wouldn't that provide Aguirre with the legal support he needs for a successful appeal?

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Don Bauder April 17, 2015 @ 11:13 a.m.

dwbat: Aguirre says that since the judge made an error of law, he and Maria may file a motion for reconsideration. But, he says, Bencivengo's decision can be appealed. I would say that these two statements by the CPUC's Office of Ratepayer Advocates and TURN are quite compelling arguments for reconsideration. Best, Don Bauder

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dwbat April 20, 2015 @ 4:17 p.m.

Well, that didn't answer MY question. I'll rephrase. If Aguirre gets shot down again by the court(s), and if Peevey gets indicted, would THAT development then allow Aguirre to appeal again?

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Don Bauder April 21, 2015 @ 7:34 a.m.

dwbat: I would think that if Peevey gets indicted (and I don't expect that, despite overwhelming evidence), Aguirre's appeal would be stronger. But the indictment wouldn't ALLOW Aguirre to appeal -- it might encourage him to keep appealing. Best, Don Bauder

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Don Bauder April 17, 2015 @ 10:09 a.m.

CPUC'S RATEPAYER ADVOCATES SAYS "THE PROCESS FOR FAIR DEALINGS AT THE CPUC HAD BEEN SEVERELY COMPROMISED." SAYS IT IS "OUTRAGED" AT THE REVELATION OF PEEVEY'S CLANDESTINE MEETING WITH EDISON EXECUTIVE. ADVOCATES WANT $648 MILLION RETURNED TO RATEPAYERS, BUT, UNFORTUNATELY, THAT IS A DROP IN THE BUCKET.

The Office of Ratepayer Advocates at the CPUC this morning (April 17) said it is "outraged" at the revelation of Peevey's clandestine meeting in Poland with an Edison executive. The office says the notes of the secret Warsaw huddle "appear to set a framework for settlement that is similar to the elements of the settlement that was ultimately accepted by the CPUC." Hmmm. This comes the day after a judge wouldn't even take the secret huddle into account when she reached an anti-consumer, pro-Edison decision.

The Office of Ratepayer Advocates wants "at least" $648 million returned to ratepayers. But this is a piddling amount. The settlement is for $5 billion, with ratepayers picking up 70 percent of the tab. (The Office of Ratepayer Advocates was one of four parties involved in the so-called settlement. The others were The Utility Reform Network, TURN, a self-professed ratepayer representative, and Edison and San Diego Gas & Electric.

Importantly, the Office of Ratepayer Advocates said that the notes from the clandestine huddle are similar to the final settlement approved by the CPUC. In short, it appears that the deal was cut by Peevey and the Edison executive, and everything after that was a Kabuki dance.

"The process for fair dealings at the CPUC had been severely compromised," said the office. However, it doesn't want to rip up the agreement and start over, because it worries that Edison will go to court and the ratepayers will end up as an even bigger loser. I, for one, have always thought this excuse was utter horse manure.

It is time for a complete housecleaning at the CPUC, perhaps involving criminal time for certain people. Will it happen? Don't hold your breath. I have a call in to Aguirre and will update this when he calls back. Best, Don Bauder

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Don Bauder April 17, 2015 @ 11:16 a.m.

Murphyjunk: I have no idea. Best, Don Bauder

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danfogel April 17, 2015 @ 9:11 p.m.

Well her bio does say she once represented Dr. Seuss. And I think she attended the same law school that surfpuppy went to, at about the same time.(feel free to draw your own inferences from any of those)

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Don Bauder April 18, 2015 @ 6:56 a.m.

danfogel: I have forgotten what law school SurfPuppy attended. Best, Don Bauder

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Don Bauder April 17, 2015 @ 10:45 a.m.

THE UTILITY REFORM NETWORK (TURN) ALSO DENOUNCES BACK ALLEY MEETING, AND SAYS PEEVEY FREQUENTLY HAD SUCH MEETINGS "IN BLATANT VIOLATION OF HIS OWN COMMISSION'S RULES."

San Francisco-based The Utility Reform Network (TURN), which like the Office of Ratepayer Advocates was a party to the agreement that rapes ratepayers, said this morning (April 17) that the stealth meeting of Peevey and Edison executive Steve Pickett raises "concern about Edison's good faith participation in the San Onofre settlement."

Then TURN came up with a couple of revelations of its own. "TURN was disturbed to hear that Mr. Peevey had engaged in backroom talks with [Edison] executives. But TURN was not surprised given that Mr. Peevey routinely had private, unreported contacts with utility executives on a wide array of pending CPUC issues, in blatant violation of his own commission's rules. Such meetings were a hallmark of President Peevey's leadership style."

TURN admitted, "TURN attempted to disqualify President Peevey in other cases due to his private dealings with utilities. In every case, TURN was unsuccessful."

So TURN admits that all along, it had known of Peevey's propensity for back channel meetings, yet it still agreed to the so-called settlement that fleeced ratepayers over the San Onofre closing.

TURN went on to say in the release that on April 10 of last year, it huddled with Peevey, who stated that he had had the undercover meeting with Steve Pickett in Poland. But Peevey would not show TURN the notes from that meeting. This information should be critical to the criminal investigations of Peevey, and should have been critical to the decision by Judge Bencivengo yesterday.

"TURN should have immediately disclosed" the information it got from Peevey, says San Diego attorney Mike Aguirre, who is fighting for ratepayers. "The complicity of TURN in the proceedings is a shock and renders them unable to participate further."

As to this morning's news release by the Office of Ratepayer Advocates, Aguirre says that "The matter should be reopened." There was to be a study of who was to blame for the San Onofre shutdown. The study, by a prominent PhD, was closed down after the CPUC lined up the so-called settlement. Best, Don Bauder

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Don Bauder April 17, 2015 @ 2:17 p.m.

AGUIRRE SAYS SAN ONOFRE BAILOUT AGREEMENT WAS ILLEGAL. HE CITES TURN'S STATEMENT OF THIS MORNING. At a press conference this afternoon (April 17), attorney Mike Aguirre said that because The Utility Reform Network (TURN) admitted this morning that it had been informed of Peevey's secret meeting with Edison's then-top lawyer in Warsaw, Poland, the bailout agreement was illegally negotiated. The deal that Peevey and Edison's Steve Pickett worked out was substantially similar to the arrangement that eventuated. Aguirre also noted that TURN did not report Peevey's unlawful activities to the appropriate authorities. That was "unconscionable," said Aguirre. Best, Don Bauder

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CaptD April 17, 2015 @ 2:04 p.m.

Don

Here is THREE points you might like to consider:

  1. Michael Aguirre made a great statement, telling the Judge that the items found on Peevey's meeting documents were "Deal Points" not meeting/talking points which is a huge difference, since they clearly indicate that most of the final deal components were indeed "finalized" between SCE and Peevey long before any discussions were held with the public about a Proposed settlement.

  2. The few cherrie picked groups that agreed to SCE's "Proposed Decision" now look very bad, since they agreed (in secret from the other Groups) to support the one sided SCE Settlement, to in my opinion seek favor (and receive intervenior funding) from the CPUC for "rolling over" on their ratepayers.

  3. Elected Officials will now start speaking out about SanOnofreGate because it is very evident that they also remained "mum" not wanting to anger two of their largest contributors (SCE and SDG&E) instead of speaking out about this "Raw Deal" that affects all their constituents to the tune of about $1000 per Utility account . The latest to suddenly find their "tongue" are Toni Atkins and Ben Hueso:

http://www.utsandiego.com/news/2015/apr/15/chairman-calls-for-new-san-onofre-deal/all/?print

BTW: For everyone using Twitter please see the new hashtag #SanOnofreGate which will allow you to keep up to date on the ongoing investigation into the multi-billion $ SCE-CPUC ripoff, just by entering the hashtag into the Tweeter search box.

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Don Bauder April 17, 2015 @ 6:25 p.m.

CaptD: I agree with your observations. The points dictated at the clandestine Polish meeting were similar to the final deal. There is no question about that. There was no fair hearing. Remember that two of the groups that were parties to the four-way settlement, TURN and the Office of Ratepayer Advocates, tried to separate themselves from the corruption in their statements this morning.

SanOnofreGate is a good term; I don't think it has been used, but should be. Here's a key point: there is an ongoing attempt by government at various levels to bury this scandal. The statements this morning by TURN and the Office of Ratepayer Advocates may help thwart this ongoing attempted coverup. Best, Don Bauder

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CaptD April 22, 2015 @ 11:50 a.m.

Don - I think that everyone involved (NRC, the NRC Region IV, SCE, SDG&E, Senator Boxer, The CPUC, most of our elected Officials and even our MSM) are now trying to cover their own "tracks", since it is clear that #SanOnofreGate involves them all at various levels because none of them stepped up and spoke out about this multi-billion dollar ratepayer ripoff; choosing instead to "lay low" seeking to retain favor (VERY BIG donations) of these Powerful Utilities. We are lucky to have the SD Reader, Michael Aguirre, Maria Severson and now Jeff McDonald of the UT adding ever more information about this debacle:

Bill would ease CPUC appeals

http://www.utsandiego.com/news/2015/apr/21/cpuc-appeals-bill-rendon/all/?print Cases could be brought in Superior Court under proposed amendments

By Jeff McDonald3:50 p.m.April 21, 2015

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Don Bauder April 22, 2015 @ 2:10 p.m.

CaptD: All along, Aguirre has known, and said, that battling the CPUC in California courts is extremely difficult. This bill, if it passes, should be a help, but more steps have to be taken. Best, Don Bauder

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ImJustABill April 17, 2015 @ 8:10 p.m.

Big gas line blast today in Fresno

http://news.yahoo.com/gas-line-explosion-closes-california-injures-least-3-230125901.html

It will be interesting if this gets handled differently in the post-Peevey PUC era.

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Don Bauder April 18, 2015 @ 7 a.m.

ImJustABill: Is there a post-Peevey era that differs significantly from the Peevey era? The new CPUC president has not proved that he is any different. Again, I point to the statement by TURN. It has known for a long time that Peevey conducted business surreptitiously, in violation of CPUC rules. Best, Don Bauder

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eastlaker April 19, 2015 @ 10:21 a.m.

This latest explosion does make me wonder just how PG&E and SDG&E are doing with those lists of pipes that are due for upgrading--might be nice if there could be an update on that. I do remember reading that the San Bruno pipes that exploded had been on a repair list for over 10 years, and nothing had been done. Makes me wonder. And have the occasional moment of concern.

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Don Bauder April 19, 2015 @ 11:14 a.m.

eastlaker: PG&E says it is making progress updating its pipes. But does anybody believe it? Best, Don Bauder

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danfogel April 17, 2015 @ 8:53 p.m.

That explosion happened when a county worker leading group of inmates from a work program at the Fresno county jail constructing a new dirt road accidentally hit a gas line.The PUC has already said they are investigating the explosion in cooperation with the federal Pipeline and Hazardous Materials Safety Administration. I guess they could be conspiring with the Fresno county jail since it was a PG&E line, but I really doubt it.

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Don Bauder April 18, 2015 @ 11:57 a.m.

danfogel: It happened at a sheriff's gun range. A front-loader may have been to blame. The workers were nearby, according to the account I read. Best, Don Bauder

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danfogel April 18, 2015 @ 12:08 p.m.

don bauder Yes I read that as well. The original reports attributed the accident to the road work.

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Don Bauder April 19, 2015 @ 11:12 a.m.

danfogel: Maybe we journalists always get it wrong the first time....and the second time, and the third time... Best, Don Bauder

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Don Bauder April 21, 2015 @ 3:49 p.m.

Laurel Kaskurs: It is fair to say there was never a meaningful meeting (other than the clandestine and illegal one in Warsaw, Poland.) Best, Don Bauder

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