7. Comments on the Proposed Decision
The proposed decision (PD) of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311 and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed jointly by Reid and Aglet (together, "Reid/Aglet") on February 25, 2009. There were no reply comments.
Reid/Aglet argue that the PD contains six errors. First, they contend that the PD used a "win-or-don't-get-paid standard" when it states:
D.08-11-032 adopted only one of Reid's recommendations listed above (i.e., Recommendation 10) and rejected the rest. We conclude that Reid did not make a substantial contribution with respect to those recommendations that were rejected by D.08-11-032.
Reid/Aglet assert the "win-or-don't-get-paid standard" is a novel approach that will have a chilling effect on the intervenor compensation program.
Reid/Aglet misconstrue the intervenor compensation program. The determination of whether an intervenor has made a substantial contribution is a matter of judgment.28 It is our judgment that Reid did not make a substantial contribution to D.08-11-032 with respect to his recommendations that were rejected by D.08-11-032. It would be an abuse of the intervenor compensation program and contrary to §§ 1801 et seq., to compensate Reid for participation that did not result in a substantial contribution.
Second, Reid/Aglet argue that the PD improperly disallowed 80% of Reid's hours for "general work." They define "general work" as time that cannot be assigned to individual issues, such as an initial review of a utility's application and preliminary discovery efforts. Of the 607.5 hours claimed by Reid, 278.2 hours are for general work. Reid/Aglet assert that it is the Commission's practice to compensate intervenors for general work. We disagree. The Commission has repeatedly held that it may disallow compensation for general work.29 In this case, it is our judgment that most of the 278.2 hours of general work claimed by Reid was not reasonably related to, or necessary for, his limited substantial contributions to this proceeding.
Third, the PD found that Reid made a substantial contribution in seven of the ten areas claimed by Reid. Reid/Aglet contend that all of the 607.5 hours claimed by Reid was spent on these ten areas, and that only 10.1 hours should be disallowed for the three areas in which Reid did not make a substantial contribution. We disagree that Reid spent 607.5 hours on these ten areas. As explained previously, most of Reid's participation in this proceeding was devoted to recommendations that were not adopted by D.08-11-032 and which did not result in a substantial contribution.
Fourth, Reid/Aglet assert that the PD erred by finding that Reid did not make a substantial contribution with respect to the following highlighted dicta on page 22 of D.08-11-032:
We disagree with Reid's assessment that PG&E's justification for the proposed Ruby capacity amounts to speculation in energy markets. The fundamental purpose of the proposed Ruby capacity is to diversify away from PG&E's disproportionate reliance on Canadian gas supplies in order to reduce portfolio risk. Reid's own analysis shows that it is cost effective for PG&E to reduce portfolio risk by acquiring Ruby capacity. (Emphasis added. Footnote in original omitted.)
The highlighted dicta notes a contradiction in Reid's presentation. This contradiction does not constitute a substantial contribution to D.08-11-032. Reid/Aglet argue there is no contradiction because D.08-11-032 misconstrued Reid's position. We disagree. We have reviewed the record and find that D.08-11-032 provides an accurate representation of Reid's position.
Fifth, Reid/Aglet contend that the PD erred by finding that Reid's testimony was not the basis for Finding of Fact 22, which states as follows:
PG&E has a need to diversify away from its heavy reliance on declining WCSB gas supplies. PG&E's proposed gas transportation arrangements on the Ruby Pipeline and PG&E's Redwood path that are described in A.07-12-021 provide a reasonable and cost-effective means for doing so. (Emphasis added.)
Reid/Aglet believe that because Reid testified that PG&E's proposed contract with Ruby LLC is cost effective for ratepayers, the Commission must have relied Reid's testimony when it wrote Finding of Fact 2. We disagree. D.08-11-032 cites DRA, TURN, PG&E, and Ruby LLC as the sources for its finding that the proposed Ruby contract is cost effective.30 This finding was key to the Commission's decision to approve the proposed contract. D.08-11-032 never cites Reid's testimony as the basis for its finding. This is not surprising given that Reid asserted in his opening brief that his analysis of the cost effectiveness of the Ruby contract provided "supporting evidence for [his] recommendations," which included his recommendation that the "Commission should reject PG&E's application in its entirety.31"
Finally, Reid/Aglet argue that the PD was issued just two days after PG&E served its response to Reid's request for compensation and 13 days before the deadline for Reid/Aglet to file a reply to PG&E's response. They argue that because the PD was issued before Reid/Aglet could reply, the PD was based on an incomplete record. This issue is moot, as today's decision is being issued after all responses and replies have been filed, and is thus based on a complete record.
28 D.98-04-059, 79 CPUC2d 628 at 653.
29 D.07-12-026, pp. 22-23; D.07-05-043, p. 22; D.07-05-037, pp. 14-15; D.89-09-103, 1989 Cal. PUC LEXIS 477, *3; and D.85-08-012, 1985 Cal. PUC LEXIS 652, *23.
30 The Commission's analysis of the cost effectiveness of the proposed Ruby contract is contained on pages 17 - 27 of D.08-11-032.
31 Reid Opening Brief, pp. iv and 9.
