Substantial Contribution

In evaluating whether a customer made a substantial contribution to a proceeding we look to the intervenor compensation statute. First, did the ALJ or Commission adopt one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer? (See § 1802(i).) Second, where another party took a position similar to the customer's did the customer's participation materially supplement, complement, or contribute to the presentation of the other party or to the development of a fuller record that assisted the Commission in making its decision? (See §§ 1802(i) and 1802.5.) The Commission must exercise judgment in making these determinations.

In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer's presentation substantially assisted the Commission.⁴

Even where the Commission does not adopt any of the customer's recommendations, compensation may be awarded if, in the judgment of the Commission, the customer's participation substantially contributed to the decision or order.⁵ For example, if a customer provided a unique perspective that enriched the Commission's deliberations and the record, the Commission could find that the customer made a substantial contribution. With this guidance in mind, we turn to the claimed contributions TURN made to the proceeding.

As TURN notes, we did not adopt TURN's position on the disputed capital additions in this proceeding. Over 80% of TURN's total requested compensation was incurred in 1999 and 2000, at a time when there was uncertainty over the ultimate disposition of the disputed capital additions. Later events, including the amendment of Section 377, the adoption of the Edison settlement agreement, and the transfer of certain capital additions to A.02-05-004, affected the capital additions at issue in this proceeding. Therefore, our review recognizes that TURN committed resources and engaged consultants to review the application, and prepare and provide testimony, before circumstances beyond TURN's control changed many matters that affected the ultimate outcome in this proceeding. TURN analyzed over $30 million of capital additions on reliability and maintenance projects in retained plants that ended up under consideration in A.02-05-004, and are addressed in a different decision. As it is not possible to separate time for this work, time related to the transferred capital additions performed prior to September 2002 is considered here.

TURN states that although the final decision did not adopt TURN's position on Edison's capital additions, TURN substantially contributed to D.04-02-025 in a number of ways. First, TURN notes that D.04-02-025 specifically states that the case-by-case analysis by TURN and ORA of Edison's capital additions was invaluable to the Commission in reaching its decision.⁶ TURN argues that it substantially contributed to the development of the record, including analyses regarding payback periods and treatment of heat rate improvement. TURN points out that its testimony explained Edison's change from a 20-year payback period to a ten-year payback period for certain capital additions. As a result, and as we discuss in more detail later, Edison withdrew its request for the cost recovery of some capital additions. Thus, in addition to TURN's significant review of all capital additions, TURN substantially contributed to the development of the record, particularly matters addressing Edison's payback period, and heat rate improvements.

Finally, TURN provided us with a substantial contribution in correcting several issues and policies addressed in the original proposed decision, and the revised decision. In the original decision, TURN pointed out that certain capital additions were incorrectly categorized, and other capital additions were insufficiently justified. In the revised decision, as a result of TURN's comments, the Commission corrected certain findings of cost- effectiveness, and findings on the recovery of environmental, regulatory, safety, and relicensing capital additions. We find that although many of TURN's positions were not adopted, TURN made a substantial contribution to D.04-02-025.

After we have determined the scope of a customer's substantial contribution, we then look at whether the compensation requested is reasonable.