6. Motions

After PG&E filed its original Application for approval of the 1^st APPA, there have been numerous motions filed in this proceeding. Most have been resolved through a specific ruling.

6.1. Motions by Group Petitioners

6.1.1. Motions for Reconsideration

Group Petitioners' asked to be recognized together as one party and were allowed to submit a late NOI as one party asserting "Category 3" customer status, a group or organization authorized by its articles of incorporation or by-laws to represent the interests of residential and/or small commercial ratepayers. (§1802(b)(1)(C).) ALJ Darling's January 23, 2009 Ruling found Group Petitioners' ineligible for intervenor compensation because insufficient information was submitted to establish that all members of Group Petitioners were entitled to "customer" status and that each would suffer significant financial hardship. Group Petitioners filed a timely Motion for Reconsideration (GP Motion) which claimed to cure the prior omissions or, in the alternative, seek consideration of member organizations under any of the three possible categories of "customer." The GP Motion is denied due to insufficient information, the same reason set forth in the prior ruling.

A threshold barrier for Group Petitioners is their mistaken claim that as long as any one member organization is an eligible customer, the entire party should be considered an eligible customer. (GP Motion at 3.) To adopt their view would open the door for non-customer members of a coalition-party to obtain intervenor compensation since it would file one Request for Compensation and reimburse all coalition members for the costs of participation. (D.98-04-059, 79 CPUC2d at 643.)

Group Petitioners also seek to recast the representative authority of Skywest Homeowners Association and HAPA by reliance on D.04-10-012 for the proposition that Articles of Incorporation need only state an organization represents "the interests of customers" or "residents" to qualify as a Category 3 customer. However, this decision, which found union Local 483 was an eligible "customer," was vacated and reversed in D.05-02-054. Although the union group was a party in the proceeding, it was "not authorized to represent the interests of residential ratepayers in its articles or by-laws." (D.05-02-054 at 5.) Two pages from amended Articles of Incorporation for California Pilots Association were submitted, but none of the three groups' Articles grant specific authority to represent residential ratepayers nor suggest the groups were formed for such purposes. (D.05-02-054.) To the contrary, each appears formed for rather specific and narrow purposes unrelated to the regulation of public utilities, with the possible exception of HAPA.

Turning to their request that the Commission instead consider Group Petitioners as Category 1 or 2 customers, Group Petitioners stated they qualify "like Local 483" and offered copies of PG&E bills to establish Skywest as a Category 1 customer.⁴⁷ Even if we accept counsel's offer of proof that the other groups qualify as Category 1 customers⁴⁸ and we infer their representation is beyond self-interest, Group Petitioners did not demonstrate that undue financial hardship will occur as a result of each group's participation here. (§ 1802(g).) D.98-04-059, 79 CPUC2d at 651, requires Category 1 and 2 customers seeking a finding of significant financial hardship to disclose their financial information to the Commission, under appropriate protective order. Group Petitioners did not submit any financial information at all.

In reaching the conclusion that Group Petitioners are ineligible for intervenor compensation due to insufficient information, we do not alter our support for "a robust intervenor compensation program, which strengthens the Commission in its decision-making process by enabling participation by parties whose voices would not otherwise be heard." (TURN Comments on PD at 6.) Instead we affirm that eligibility standards are "an important part of the accountability and control mechanisms appropriate to the compensation program's administration." (D.98-04-059 at 642.) It is the duty of an intervenor to establish eligibility, including customer status and significant financial hardship, rather than offer unsupported statements and inferences from which the Commission is to derive rather specific elements of qualification. While it is possible Group Petitioners could qualify if given enough time to further supplement their NOI, there is no authority that binds the Commission to wait indefinitely.

6.1.2. Motion to File Under Seal

Along with their January 23, 2009 Comments on the proposed settlement, Group Petitioners also filed a Motion to File Under Seal Certain Portions of the Contest and Opposition to Joint Motion for Approval of Second Amended and Restated Power and Purchase Agreement. No opposition to the motion was filed. However, the "redacted," or Public, version of their Comments omits a significant amount of the document including portions that do not contain any market sensitive information subject to confidential treatment according to D.06-06-066. Group Petitioners apparently acknowledge this overreaching because they say the motion was filed in "an abundance of caution" and urge PG&E to advise them as to which parts should be kept confidential.⁴⁹

The Motion is vague as to what was omitted from the Public version. Accordingly, we partially grant Group Petitioners' motion to file confidential material in their "Contest and Opposition to Joint Motion" (GP Comments) under seal for just two portions of the requested material. First, because the specific language of section 9.3 is disclosed, we agree that lines 15-21 on page 6 of the "Confidential" version of Group Petitioners comments are confidential and should be filed under seal. We also agree that lines 12-19 (through the sentence ending in "letter") on page 7 of the "Confidential" version of their comments disclose some content from the letter.

6.2. Motions by PG&E

In a February 6, 2009 Ruling, ALJ Darling granted PG&E's motion to seal the evidentiary record as to the Confidential Testimony but only partially granted PG&E's motion to seal the evidentiary record as to the Confidential Supplemental Testimony. The Ruling directed PG&E to serve on all parties a revised version of the Public Supplemental Testimony which it did on March 3, 2009. On March 6, 2003, PG&E filed a motion to Offer Testimony into Evidence and a Motion to Seal the Evidentiary Record as to revised Confidential Supplemental Testimony. No opposition has been filed and both of these motions are granted.

⁴⁷ GP Motion at 10.

⁴⁸ Counsel for Group Petitioners affirmed her review of PG&E bills sent to the chair of HAPA and the regional chair of the California Pilots Association.

⁴⁹ Group Petitioners Confidentiality Motion at 3.