3. Procedural Issues
3.1. NOI
It is undisputed that the Mackintoshes did not timely file their NOI (although they served it on time). However, we find that such failure is excused and does not preclude a finding of entitlement to compensation.
The PHC in this matter was held on June 20, 2006. The NOI was therefore due 30 days later on July 20, 2006. While the Mackintoshes served the NOI on all parties on July 20, 2006, due to inadvertence they did not file the NOI until August 1, 2006, after being notified by the assigned Administrative Law Judge (ALJ) that the NOI had not been filed. The Mackintoshes assert that the ALJ implicitly allowed the late filing by noting that parties should respond to it,3 and we agree.
Even if the ALJ had not allowed the late filing, we would conclude it was inadvertent and non-prejudicial. The Mackintoshes clearly intended to submit the NOI timely by virtue of having served it on the due date. PacifiCorp-the only party that commented on the request for compensation-and the ALJ received the NOI on time. Thus, no one was prejudiced by the late filing.
We have occasionally excused late filings where the intervenor is new or if the NOI is only a few days late. See, e.g., D.00-03-044. The Mackintoshes' 12-day delay in filing the NOI is significantly less than the delay the Commission deemed acceptable for a new intervenor in D.00-03-044.
Thus, we find that the late filing of the NOI is excused in this case, and that this requirement of the intervenor compensation statute does not preclude an award of compensation.
3.2. Customer Status
The Mackintoshes claim they are eligible for compensation as a customer of PacifiCorp. The kind of "customers" that may claim compensation are defined in § 1802(b)(1), which defines a "customer" as A) a participant representing consumers, customers or subscribers of a utility; B) a representative who has been authorized by a customer; or C) a representative of a group or organization authorized pursuant to its articles of incorporation or bylaws to represent the interests of residential or small business customers. The Mackintoshes claim they meet the first category of customer and therefore hold Category 1 customer status.
PacifiCorp objects to the Mackintoshes' claim and asserts that the Mackintoshes acted purely out of self-interest: to protect their own scenic views and property values. We disagree. The Mackintoshes succeeded in persuading the Commission to require that PacifiCorp use the existing transmission corridor for the line upgrades. This position benefited not only the Mackintoshes, but everyone living near, or travelling through, the undisturbed valley where PacifiCorp proposed to site the new line.
The Mackintoshes correctly point out that we have accorded Category 1 customer status to customers that act out of self-interest, as long as they "also represent the broader interest of at least some other customers." D.86-05-007, 21 CPUC2d 99, 1986 Cal. PUC LEXIS 287, at *5-6; D.88-12-034, 30 CPUC2d 93, 1988 Cal. PUC LEXIS 770, at *9.
PacifiCorp argues that the Mackintoshes are disqualified as Category 1 customers for the same reason as the customer in D.88-12-034: because the self-interest arises out of a reason unrelated to their status as a utility customer. In D.88-12-034, the customer was interested in the case, involving inside telecommunications wiring, because it was a competitor of the incumbent telephone company, rather than because it used telephone service. Likewise, PacifiCorp appears to argue, the Mackintoshes are interested in PacifiCorp's transmission line not as electricity customers, but as homeowners, and therefore fail to qualify as Category 1 customers.
However, to agree with PacifiCorp would run contrary to a series of intervenor compensation cases that followed D.88-12-034, in which we awarded compensation to homeowners and homeowner groups who persuaded the Commission to reroute transmission lines. See, e.g., D.02-11-024, 1992 Cal. PUC LEXIS 719, at *4 (PG&E Tri-Valley transmission line; compensation awarded to homeowners' group found to be a Category 1 customer); see also D.06-04-018 (PG&E Jefferson-Martin transmission line; compensation awarded to homeowners' group found to be Category 3 customer); D.05-02-009, 2005 Cal. PUC LEXIS 71, at *6 (finding group eligible to represent customers under "expansive approach to customer eligibility"). Thus, the mere fact that the Mackintoshes' interest in the proceeding arises from their status as homeowners does not disqualify them from compensation.
Further, the Mackintoshes' self-interest was complemented by broader interests in their community and environment as a whole. The Mackintoshes raised numerous objections to the transmission line that encompassed issues relevant to the broader community, including preservation of the scenic valley around Hoy Road, preservation of views from neighboring properties, electrical deficiencies of PacifiCorp's proposal, and reliability concerns for the project. Further, while other neighbors participated in the case, the Mackintoshes were the only party opposing PacifiCorp's proposal that retained counsel and carried out a full-blown case in opposition to the original route. Finally, one of the exhibits introduced at hearing was a petition of a large number of other residents of the Weed area supporting rerouting of the line to avoid the Hoy Valley, consistent with the Mackintoshes' position.4 Thus, the Mackintoshes acted out of more than self-interest.
To summarize, a Category 1 customer may act out of self-interest as long as it also embraces a broader purpose beyond its own self-interest. We find the Mackintoshes meet this test. Preserving the Hoy Valley did not benefit the Mackintoshes alone. All residents living in its vicinity will benefit, including the Luiz family and Pappas family, who participated informally at hearing, as well as the dozens of area residents who signed a petition (Ex. 107) to save the valley from the proposed line. Further, people traveling on the public road (Hoy Road) traversing the valley will also benefit. Thus, the Mackintoshes' efforts did not benefit them alone, but many others in the vicinity. Without the Mackintoshes' involvement, the Commission likely would not have focused on the visual impacts and hydrological concerns caused by routing the line through the Hoy Valley. Likewise, the Commission would not have had to order and adopt an EIR to consider routes other than the proposed route. Thus, the Mackintoshes' involvement caused the Commission to focus on important issues that no other party was raising in a formal way.
3.3. Significant Financial Hardship
It is not enough for a customer to meet one of the three categories of "customer" allowed to recover intervenor compensation. Such a customer must also demonstrate significant financial hardship if required to bear the cost of participation on its own. Section 1802 (g) defines "significant financial hardship" to mean "that the customer cannot without undue hardship afford to pay the costs of effective participation, including advocate's fees, expert witness fees, and other reasonable costs of participation...." D.98-05-014, 80 CPUC2d 209 (1998).
In D.86-05-007, we generally addressed what would constitute sufficient documentation of significant financial hardship. In that decision, we concluded that participants seeking a finding of eligibility should provide detailed documentation along the lines of gross and net monthly income, monthly expenses, and cash and assets, including equity in real estate. In D.98-05-014, we concluded that where an individual intervenor's financial data demonstrated that the compensation requested would amount to a large portion of the intervenor's uncommitted annual compensation, it was reasonable to conclude that the intervenor had demonstrated undue hardship.
The Mackintoshes established financial hardship by submitting full financial data under seal. PacifiCorp obtained copies of all of the financial data pursuant to a nondisclosure agreement, and stated that it would comment if it objected to the Mackintoshes' claim of financial hardship. After reviewing the financial data, PacifiCorp explicitly waived its right to object to a finding of financial hardship. Thus, the issue of hardship was undisputed.
In view of the above, we find that the Mackintoshes have satisfied all the procedural requirements necessary to make their request for compensation in this proceeding.
3.4. Request for Compensation
Pursuant to § 1804(c), a request for compensation must be filed within 60 days of our final order or decision in a proceeding. D.07-03-043 issued on March 20, 2007. However, on April 19, 2007, PacifiCorp filed an application for rehearing of that decision. On July 12, 2007, the Commission denied the rehearing request in D.07-07-021. According to the Commission Rules of Practice and Procedure (Rules) Rule 17.3, if an application for rehearing challenges a decision on an issue on which the intervenor believes it made a substantial contribution, the request for an award of compensation may be filed within 60 days of the issuance of the decision denying rehearing on that decision. The Mackintoshes filed their request on September 10, 2007, within 60 days of the issuance of D.07-07-021 denying PacifiCorp's request for rehearing of D.07-03-043. Therefore, the request is timely.
On October 10, 2007, PacifiCorp filed a response to the Mackintoshes' request for compensation opposing the request. On October 25, 2007, the intervenors filed a reply to PacifiCorp's response. We address the responsive and reply comments throughout this decision.
3 See Reply Comments of Don and Judy Mackintosh Regarding PacifiCorp's Response to the Mackintoshes' Request for Intervenor Compensation, filed Oct. 25, 2007, Attachment C (e-mail message from ALJ Thomas).
4 PacifiCorp notes that not all residents supported the Mackintoshes' point of view. The fact that other customers opposed the Mackintoshes' view does not disqualify the Mackintoshes from compensation if the Mackintoshes otherwise meet the requirements for Category 1 customer status. Thus, the e-mail from Meredith Seawell attached as Exhibit A to PacifiCorp's opposition to the Mackintoshes' request does not undermine the Mackintoshes' entitlement to compensation.
