5. Award

We award SSRC $629,118.90, as follows and as shown in Appendix A to this decision:

Attorneys

 

Hours

Rate

Amount Requested

Amount Awarded25

2000-2001

        

M. Mihaly

218.4

$315/hr

68,796.00

68,796.00

O. Armi

335.4

$220/hr

73,788.00

73,788.00

J. Schue

404.6

$165/hr

66,759.00

66,759.00

Law Clerks

15.5

$60/hr

930.00

930.00

2002-2003

   

M. Mihaly

299.2

$325/hr

97,240.00

97,240.00

O. Armi

807.4

$230/hr

185,702.00

185,702.00

J. Schue

422.0

$175/hr

73,850.00

73,850.00

Law Clerks

72.5

$60/hr

4,350.00

4,350.00

SUBTOTAL

2,575.0

  

$571,415.00

$571,415.00

Deductions for Disallowed Activities

 

Hours

Rate

Amount to Deduct

M. Mihaly

0.5 (comm. with gov't officials)

$315/hr

($157.50)

M. Mihaly

1.8 (comm. with press)

$325/hr

(585.00)

O. Armi

0.5 (comm. with gov't officials)

$230/hr

(115.00)

O. Armi

5.1 (comm. with press)

$230/hr

(1,173.00)

J. Schue

1.9 (comm. with gov't officials)

$175/hr

(332.50)

J. Schue

2.7 (comm. with press)

$175/hr

(472.50)

Deductions ($ 2,835.50)

Experts

 

Hours

Rate

Amount Requested

Amount Awarded

W. Schmus (2001)

19.5

$225/hr

4,387.50

$3,705.0026

A. Smeerdyk (2001-2002)

215.5

$225/hr

48,487.50

$40,945.0027

SUBTOTAL

235.0

  

$52,875.00

$44,650.00

Expenses

Source

Amount Requested

Amount Awarded

Shute, Mihaly & Weinberger LLP

16,325.44

$13,763.31

Anton Smeerdyk

1,157.55

$1,157.55

SSRC Board of Directors

25,847.65

$968.54

SUBTOTAL

$43,330.64

$15,889.40

     

SUBTOTAL

$667,620.64

$622,272.45

Less Deductions from above table

  

($2,835.50)

     

TOTAL

  

$629,118.90

Consistent with previous Commission decisions, we will order that interest be paid on the award amount (calculated at the three-month commercial paper rate), commencing the 75th day after SSRC filed its compensation request and continuing until the utility makes its full payment of award.

As in all intervenor compensation decisions, we put SSRC on notice that the Commission Staff may audit SSRC's records related to this award. Thus, SSRC must make and retain adequate accounting and other documentation to support all claims for intervenor compensation. SSRC's records should identify specific issues for which it requests compensation, the actual time spent by each employee, the applicable hourly rate, fees paid to consultants, and any other costs for which compensation may be claimed.

Waiver of Comment Period

Pursuant to Rule 77.7(f)(6) of the Commission's Rules of Practice and Procedure, the otherwise applicable 30-day period for public review and comment could be waived. However, we are allowing 30-days comment on the decision because it does not award the requested compensation in full and because SDG&E has contested the request.

SSRC filed comments on August 11, 2003. SSRC agrees with the draft decision except as to the awards for costs. It challenges the cost awards related to the efforts of its law firm, Shute, Mihaly, and to the efforts of SSRC itself. We examine each of its arguments in turn.

While it did not do so with its original request, with its comments SSRC sorted the Shute, Mihaly costs by activity rather than by date. This change makes it far easier to determine how Shute, Mihaly's costs break down.

For unexplained reasons, the re-sorting resulted in a reduction of the Shute, Mihaly cost request from $16,325.44 to $13,763.31. In the original decision, we allowed SSRC 25 percent of the $16,325.44 figure, or $4,081.36.

Shute, Mihaly's revised summary shows that the costs break down as follows:

While the costs are still higher than average, we find that SSRC has now adequately documented them by category. The draft decision expressed concern about the $1.00 per page facsimile charge, but the comments establish that major copy centers charge at least this amount. SSRC explains that 32 faxes over a two-year period was reasonable, and that it only used facsimile transmission when the recipient did not have email access, electronic versions of the needed documents were unavailable, or signature pages needed to be transmitted. SSRC also explains and documents that it used commercial copy centers for much of the copying. The aerial photo and poster reproduction costs were out-of-pocket costs paid to SDG&E and a third party vendor to show the effects of the proposed transmission line. The telephone, travel and computerized legal research costs all represent reasonable, out-of-pocket charges. We therefore allow SSRC the full $13,763.31 claimed in costs for Shute, Mihaly. This adds $9,681.95 to SSRC's total.

SSRC offers no new reasons justifying recovery of the $25,847.65 in its own costs. It explains - as did its request - that the efforts were related to community organizing. Were such efforts compensable in the intervenor compensation context, the costs could be extremely high, dependent only on the size of the "community" at issue. Using SSRC's reasoning, were its outreach to extend to the entire population of the State, the compensation request for copying alone could be in the millions. Moreover, SSRC makes no argument that the community involvement was germane to the reliability need and economic need issues the Commission decided in D.02-12-066. While we welcome community involvement in all our proceedings, these expenses do not directly relate to SSRC's participation in this proceeding, and disallow all but the $968.54 the draft decision allowed.

SDG&E addresses two issues: SSRC's fundraising, and its division of efforts with the City of Temecula and the Pechanga, who were not eligible for intervenor compensation. Neither argument raises new issues, and we reject both. We address each in turn:

SDG&E continues to oppose an award to SSRC because it raised other funds. It cites two new legal theories. First, it notes that Public Utilities Code § 1802(h) states: "Where the customer's participation has resulted in a substantial contribution . . . the commission may award the customer compensation . . . (emphasis added)." In this case, SDG&E asserts, the Commission should exercise its discretion and not award SSRC double recovery for expenditures already reimbursed through donations.

This interpretation could eviscerate the right to intervenor compensation, giving us discretion to disallow it for virtually any reason. If an intervenor is eligible for compensation and has made a substantial contribution, we do not believe the vague use of the word "may" undercuts an intervenor's right to compensation simply because it has raised other funds. We suspect other intervenors have fundraising ability as well, and we have never required them to provide budgets or other sources of funding.

Second, SDG&E asserts that awarding SSRC a double recovery of its expenditures also would violate the Legislature's requirement set forth in § 1802(h) that the Commission award only reasonable fees and costs. This is another overbroad interpretation of the statute. We believe the "reasonableness" limitation relates to the amount of fees and costs themselves, and not to the organization's financial ability to pay. Financial hardship is dealt with elsewhere in the statute. Thus, we reject this argument as well.

SDG&E also asserts that it was unjust for SSRC to bear the lion's share of the workload given that it partnered with the City of Temecula and the Pechanga Development Corporation, entities that were ineligible for compensation. However, one could look at the issue precisely the opposite way, and find that SSRC saved money by its voluntary partnership with a third party. It certainly was not obligated to share duties with anyone. SDG&E cites no basis for us to regulate how intervenors allocate their time and efforts to non-intervenor parties, and we are not prepared to carve out a new rule governing such allocations.

Assignment of Proceeding

Susan Kennedy is the Assigned Commissioner and Michelle L. Cooke is the assigned ALJ in this proceeding.

Findings of Fact

1. SSRC has made a timely request for compensation for its contribution to D.02-12-066.

2. SSRC has made a showing of significant financial hardship by demonstrating the economic interests of its individual members would be extremely small compared to the costs of participating in this proceeding.

3. D.02-12-066 dealt with the reliability need and economic need issues.

4. SSRC justified the hours it spent on the reliability need and economic need issues.

5. Although D.02-12-066 did not reach environmental issues or Project siting, the Commission invited input on those issues during Phase 1 of the proceeding.

6. SSRC justified the hours it spent on the environmental and Project sitting issues.

7. SSRC's unallocated time relates to activities compensable under the substantial contribution standard, even if it is not easily attributable to a single issue.

8. SSRC did not duplicate the efforts of other parties.

9. SSRC has requested hourly rates for attorneys that are no greater than the market rates for individuals with comparable training and experience.

10. SSRC has requested hourly rates for its experts that exceed the rates we have awarded in the past to experts of additional education.

11. The hourly rates SSRC seeks for law clerks/law students are consistent with Commission precedent and lower than Shute, Mihaly's market rates.

12. The costs incurred by Shute, Mihaly are reasonable.

13. The costs incurred by SSRC for community organizing are not reasonable.

14. The costs incurred by SSRC for travel are not reasonable and should be reduced by 90 percent.

15. The other costs incurred by SSRC are reasonable.

Conclusions of Law

1. SSRC has fulfilled the requirements of §§ 1801-12 which govern awards of intervenor compensation.

2. The fact that SSRC raised funds from private donors does not render it ineligible for compensation or undermine a finding that it meets the financial hardship test.

3. A party is not bound by its NOI estimate if it can demonstrate a reasonable basis for the difference between the NOI estimate and the compensation request.

4. SSRC demonstrated a reasonable basis for the difference between its NOI estimate and its compensation request.

5. SSRC should not recover compensation for time spent communicating with the press, because such time does not relate directly to its participation in this proceeding.

6. SSRC should not recover compensation for time spent lobbying non-Commission governmental officials, because such time does not relate directly to its participation in this proceeding.

7. SSRC should recover compensation for time spent on condemnation issues, which are related to the siting issues the Commission raised in Phase 1 of this proceeding.

8. SSRC should recover compensation for Mr. Smeerdyk's work, which relates to the need issues and consideration of alternate routing.

9. We should increase the hourly rates for Attorneys Mihaly, Armi, and Schue by $10.00 each for 2002-03, to $325, $230, and $175 per hour, respectively.

10. We should set the hourly rates for experts Smeerdyk and Schmus at $190 per hour.

11. We should award SSRC $60 per hour for work by its law clerks.

12. SSRC should recover $13,763.31 for its attorneys' office costs.

13. SSRC should not recover full compensation for costs related to community organizing or travel.

14. SSRC should receive compensation for reasonable costs.

15. SSRC should be awarded $629,118.90 for its contribution to D.02-12-066.

16. This order should be effective today so that SSRC may be compensated without unnecessary delay.

ORDER

IT IS ORDERED that:

1. Save Southwest Riverside County (SSRC) is awarded $629,118.90 in compensation for its substantial contribution to Decision 02-12-066.

2. San Diego Gas and Electric Company (SDG&E) shall pay SSRC $629,118.90 within 30 days of the effective date of this order. SDG&E shall also pay interest on the award at the rate earned on prime, three-month commercial paper, as reported in Federal Reserve Statistical Release H.15, with interest, beginning May 2, 2003, and continuing until full payment is made.

3. This proceeding is closed.

This order is effective today.

Dated October 16, 2003, at San Francisco, California.

I dissent.

/s/ MICHAEL R. PEEVEY

President

I dissent.

/s/ GEOFFREY F. BROWN

Commissioner

Compensation Decision Summary Information

Compensation Decision(s):

D0310056

Contribution Decision(s):

D0212066

Proceeding(s):

A0103036

Author:

Cooke

Payer(s):

San Diego Gas & Electric Company

Intervenor Information

Intervenor

Claim Date

Amount Requested

Amount Awarded

Reason Change/Disallowance

Save Southwest Riverside County (SSRC)

February 24, 2003

$667,620.64

$629,118.90

Attorney, SSRC costs disallowed; expert hourly rate too high

Advocate Information

First Name

Last Name

Type

Intervenor

Hourly Fee Requested

Year Hourly Fee Requested

Hourly Fee Adopted

Marc

Mihaly

Attorney

Save Southwest Riverside County

$315

2000

$315

Marc

Mihaly

Attorney

Save Southwest Riverside County

$315

2001

$315

Marc

Mihaly

Attorney

Save Southwest Riverside County

$325

2002

$325

Marc

Mihaly

Attorney

Save Southwest Riverside County

$325

2003

$325

Osa

Armi

Attorney

Save Southwest Riverside County

$220

2000

$220

Osa

Armi

Attorney

Save Southwest Riverside County

$220

2001

$220

Osa

Armi

Attorney

Save Southwest Riverside County

$230

2002

$230

Osa

Armi

Attorney

Save Southwest Riverside County

$230

2003

$230

Janette

Schue

Attorney

Save Southwest Riverside County

$165

2000

$165

Janette

Schue

Attorney

Save Southwest Riverside County

$165

2001

$165

Janette

Schue

Attorney

Save Southwest Riverside County

$175

2002

$175

Janette

Schue

Attorney

Save Southwest Riverside County

$175

2003

$175

Anton

Smeerdyk

Engineer

Save Southwest Riverside County

$225

2001

$190

Anton

Smeerdyk

Engineer

Save Southwest Riverside County

$225

2002

$190

Wayne

Schmus

Engineer

Save Southwest Riverside County

$225

2001

$190

25 See deductions from requests for Mr. Mihaly, Ms. Armi and Ms. Schue below under "Deductions for Disallowed Activities." 26 We awarded Mr. Schmus $190/hour rather than the $225/hour SSRC requested. 27 We awarded Mr. Smeerdyk $190/hour rather than the $225/hour SSRC requested.

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