Linked In"> By Carmen Germaine Law360, New York (January 6, 2016, 10:40 PM ET) -- The California Public Utilities Commission reassigned on Tuesday a case involving Southern California Edison’s closure of a nuclear plant after the administrative judge overseeing it retired amid allegations that she had acted improperly and a criminal investigation into how the regulator handled the case.
Administrative Law Judge Melanie M. Darling has retired from her position at the CPUC, the regulator confirmed Wednesday. The move came shortly after a San Diego consumer group made several failed bids to force the commission to reassign the investigation into So Cal Edison’s shutdown of the San Onofre Nuclear Generating Station to a new judge and amid a criminal investigation into alleged back channel talks between So Cal Edison and the commission.
A spokesman for the CPUC confirmed that the case had been reassigned but denied that Judge Darling's retirement was related to the consumer group's allegations or the San Onofre case.
"Judge Darling’s long-planned retirement was the basis for the reassignment and bears no relationship to the San Onofre proceeding. ALJ Darling and other retirees were given resolutions at the last Voting Meeting of 2015," CPUC spokeswoman Constance Gordon told Law360 in an email.
Consumer advocacy group The Coalition to Decommission San Onofre had motioned several times to reassign the case, arguing that Judge Darling was not impartial and “had regular chats with SCE about substantive matters.” The most recent motion was denied by Chief Administrative Law Judge Karen V. Clopton on Nov. 24, but the case was reassigned to Administrative Law Judge Maribeth A. Bushey on Jan. 5.
The CPUC began investigating the circumstances of So Cal Edison’s unexpected closure of the San Onofre Nuclear Generating Station in October 2012, several months after the plant began leaking low-level radioactive steam. So Cal Edison retired the station in 2013 and reached a settlement with the CPUC over the shutdown in November 2014 that would provide consumers with refunds and credits of $1.3 billion.
The investigation overseen by Judge Darling continued after the settlement was reached, in part examining whether So Cal Edison had reported talks with former CPUC President Michael Peevey discussing costs related to the plant shutdown. Judge Darling issued a show cause order in August threatening to fine So Cal Edison up to $34 million for failing to disclose the talks, and the CPUC in December imposed a $16.7 million fine.
But the consumer advocacy group alleged Judge Darling had held improper ex parte communications with So Cal Edison over email and by phone regarding the case, “almost as if ALJ Darling were an employee of SCE.”
The motion to reassign the case claimed that Judge Darling had asked So Cal Edison if the settlement record should be reopened and sought to limit public participation in a community meeting, among other things. So Cal Edison filed a response disputing the claims, saying Judge Darling was inquiring whether the utility believed the record was unresolved and that there was no basis to the claim she sought to limit public involvement.
The Coalition to Decommission San Onofre also noted that Judge Darling was the subject of a search warrant issued in June by the California Department of Justice seeking emails and records from several current and former So Cal Edison directors and officers and other CPUC officials as part of an ongoing criminal investigation into the CPUC’s relationship with utilities.
A recently unsealed affidavit attached to a September search warrant alleged that Peevey may have had improper back channel communications with an So Cal Edison executive related to the settlement.
Judge Darling had served as an administrative judge at the commission since August 2008, according to the CPUC website. She joined the CPUC after working as senior tax counsel for the California State Board of Equalization for eight years, according to the commission.
Representatives for SCE and the Coalition to Decommission San Onofre did not respond Wednesday to requests for comment.
The case is Order Instituting Investigation on the Commission’s Own Motion into the Rates, Operations, Practices, Services and Facilities of Southern California Edison Company and San Diego Gas and Electric Company Associated with the San Onofre Nuclear Generating Station Units 2 and 3 And Related Matters, investigation number 12-10-013, before the California Public Utilities Commission.
--Additional reporting by Y. Peter Kang and Jacob Fischler. Editing by Christine Chun.