The judge in charge of deciding whether to reopen the San Onofre settlement - and whether Southern California Edison should be sanctioned for failing to disclose private communications with regulators who approved it - was herself involved in backchannel dealings with an Edison executive.
Melanie Darling, an administrative law judge with the California Public Utilities Commission, talked and emailed with Edison executive Russell Worden in December 2012, days after regulators opened an investigation into what happened at San Onofre.
The emails were obtained under the California Public Records Act by the San Diego law firm Aguirre & Severson, which is challenging the November settlement of $4.7 billion in shutdown costs for the failed San Onofre nuclear plant as a bad deal for utility customers.
When The San Diego Union-Tribune first reported on the conversation between the administrative law judge and the executive last year, the utilities commission portrayed the conversation as a purely procedural discussion of public outreach for an upcoming public hearing.
"A communication is not an ex parte contact under our rules if there is no substantive discussion of the subject of an open proceeding," spokeswoman Terrie Prosper said at the time. "Thus, an ALJ may initiate contact with a party on rare occasion regarding, for example, procedural matters."
The emails show Worden discussed several more substantive matters with Darling, which were never disclosed. According to a Dec. 5 email to Darling from Worden, recapping their conversation, topics included:
- Edison's expectations about damages it might recover from Mitsubishi Heavy Industries, manufacturer of replacement steam generators that brought down the nuclear plant amid a radiation leak in January 2012.
- Edison's work with Mitsubishi to understand what went wrong with the generators, and what analysis had been done regarding the cause of the failure.
- Arbitration terms in Edison's contract with Mitsubishi.
- Issues with whether Mitsubishi's studies of the steam generator failure would be considered proprietary.
The utilities commission is supposed to serve as an impartial arbiter of matters that come before it. Dealings with stakeholders in commission decisions are required to take place in public, or with immediate public notice of any substantive communications.
Ongoing criminal investigations into the agency are focusing on behind-the-scenes communications and whether they disadvantaged the public in favor of utility companies.
Edison said Friday that the communications between its executive and the administrative law judge were routine and properly reported within the three-day requirement.
"The discussions were entirely appropriate," company spokeswoman Maureen Brown said in a statement. "Seeking guidance from the ALJ with regard to compliance with CPUC rules is permitted and prudent given that the rules can require interpretation."