4. Preliminary Procedural Issues
Under § 1804(a)(1) and Rule 17.1(a)(1), a customer who intends to seek an award of intervenor compensation must file an NOI before certain dates.
On September 14, 2006, Administrative Law Judge (ALJ) Anne Simon ruled "Aglet Consumer Alliance (Aglet) was found eligible for compensation in this proceeding (R.06-02-012) in the Administrative Law Judge's Ruling Finding Aglet Consumer Alliance Eligible to Claim Intervenor Compensation (March 30, 2006), issued in Rulemaking (R.) 04-04-026, the predecessor to this proceeding." On September 20, 2006, at the request of ALJ Simon, Aglet filed an updated NOI in R.06-02-012.
On November 19, 2008, in R.08-08-009, ALJ Burton W. Mattson ruled that Aglet remained eligible to seek intervenor compensation. "This eligibility covers compensable intervenor work in R.06-05-027 and continues for compensable intervenor work in R.08-08-009." (Ruling at 2.)
In its NOI, Aglet demonstrated significant financial hardship by showing that the economic interests of Aglet's individual members are small compared to the costs of effective participation in the proceeding. On March 30, 2006 in R.04-04-026, an earlier predecessor to R.06-02-012, ALJ Simon found that Aglet had demonstrated the requirements of § 1802(g).
Pursuant to § 1804(b)(1), Aglet also established significant financial hardship by rebuttable presumption established in an earlier proceeding. On April 2, 2008, ALJ Timothy Kenney issued a ruling in Application (A.) 07-12-021 which found that Aglet was a customer and met the significant financial hardship requirement by rebuttable presumption established in another proceeding, and met the eligibility requirements for intervenor compensation. R.08-08-009 commenced within one year of the date of ALJ Kenney's ruling.
Regarding the timeliness of the request for compensation, Aglet filed its request for compensation on August 18, 2009, within 60 days of the issuance of D.09-06-050.2 No party opposed the request.
Aglet submits that its request for compensation is also timely filed for hours and expenses associated with its substantial contributions to D.07-02-011 and D.08-05-029. Aglet has delayed filing compensation requests for work associated with D.07-02-011 and D.08-05-029 for two reasons: (1) Aglet spent a small number of hours on issues resolved by the decisions; and (2) the general subject matter (RPS) evolved from one proceeding to another. Aglet recorded approximately 14 hours of professional time on issues resolved by D.07-02-011 and approximately 12 hours of professional time on issues resolved by D.08-05-029.
Aglet submits that its request for compensation is also timely filed for hours and expenses associated with its claim of substantial contribution to D.07-02-011 and D.08-05-029. This deferral of hours and costs is consistent with the Commission's longstanding practice in proceedings that produce a number of decisions as they run their course, especially when each decision may only involve a relatively small number of intervenor hours. Rather than require an intervenor to file a request after every decision to which an intervenor has made a substantial contribution, the Commission has permitted intervenors to file requests that include several decisions, even where some of those decisions were issued more than 60 days prior to the filing of the compensation request.
As an example of the Commission's past practice in this regard, Aglet references The Utility Reform Network's (TURN) compensation request for its substantial contributions to D.06-10-050, D.07-02-011, D.07-03-046, and D.07-05-057 and for participation in procurement review groups, filed on July 30, 2007, where the Commission found:
We agree with TURN that this practice continues to be reasonable.
It would be inefficient for an intervenor to prepare, and the Commission to address, individual requests after each of several decisions in a long-running proceeding, particularly when the intervenor's work on issues in any one decision may involve a relatively small number of intervenor hours. As TURN states, intervenors have no interest in devoting more of their limited resources to the preparation of a greater number of compensation requests, nor does the Commission have an interest in considering and adopting a greater number of decisions. Furthermore, an approach that requires an intervenor to wait until the issuance of a final decision would be inconsistent with the Legislative intent that compensation be awarded within a reasonable period after the intervenor has made a substantial contribution to a proceeding.3
We approve Aglet's request that the Commission apply this same standard of timeliness here in our evaluation of Aglet's compensation request. With this approval, we find Aglet's requests for compensation for all of the decisions contained herein to be timely filed.
In view of all of these facts, we affirm the ALJs' rulings and find that Aglet has satisfied all the procedural requirements necessary to make its request for compensation in this proceeding.
2 D.09-06-050 was issued on June 19, 2009.
3 D.07-10-012 at 5.
