3. Requirements for Awards of Compensation

3.1 Introduction

The intervenor compensation program is established in Pub. Util. Code §§ 1801-1812.² The legislation requires California jurisdictional utilities to pay the reasonable costs of an intervenor's participation, as determined by the Commission, if the intervenor's "presentation makes a substantial contribution to the adoption, in whole or in part, of the commission's order or decision" and if participation without an award "imposes a significant financial hardship." (§§ 1803(a), 1803(b).) A public utility that has been ordered to pay the costs of an award may adjust its rates to fully recover the amount awarded within one year of the date of the award. (§ 1807.)

We carefully review each intervenor's request to determine whether it complies with statutory requirements and related standards and requirements established by the Commission. We do so because the costs of compensation awards are ultimately paid by utility ratepayers. By ensuring that the requirements for awards are met, we provide assurance that ratepayers receive value for the compensation costs that they underwrite.

3.2 Requirements for Intervenors

All of the following procedures and criteria must be satisfied for an intervenor to obtain a compensation award:

1. The intervenor must satisfy certain procedural requirements including the filing of a sufficient notice of intent (NOI) to claim compensation within 30 days of the prehearing conference (or in special circumstances, at other appropriate times that we specify). (§ 1804(a).)

2. The intervenor must be a "customer," i.e., a participant representing consumers, customers, or subscribers of a utility subject to our jurisdiction, or an authorized representative. (§ 1802(b).)

3. The intervenor must file a request for a compensation award within 60 days of the final order or decision in a hearing or proceeding. (§ 1804(c).)

4. The intervenor must demonstrate "significant financial hardship." (§§ 1802(g), 1804(a)(2)(B), 1804(b)(1).)

5. The intervenor's presentation must have made a "substantial contribution" to the proceeding. (§ 1802(i).)

6. The requested compensation must be reasonable. Among other things, the claimed fees and costs must be comparable to the market rates paid to experts and advocates having comparable training and experience and offering similar services. (§ 1806.)

In a ruling dated August 27, 2002, the Administrative Law Judge (ALJ) found that Aglet and TURN had timely filed NOIs, demonstrated their standing as customers, shown significant financial hardship, and were therefore eligible to claim compensation in this proceeding. In a ruling dated January 18, 2003, the ALJ found that Greenlining had (1) timely filed an NOI; (2) demonstrated its standing as a customer; and (3) was therefore eligible to claim compensation in this proceeding provided, however, that it would need to show significant financial hardship when it filed its request for compensation.³ Greenlining included a showing of significant financial hardship with its compensation request. Greenlining established that the "rebuttable presumption" authorized by § 1804(b)(1) is operative. Each of the intervenors timely filed its request for compensation within 60 days of July 16, 2004, the mailing date of D.04-07-022.

We conclude that each intervenor has met the procedural requirements and criteria set forth in Items 1-4 above. We will separately address each intervenor's showing regarding substantial contribution (Section 4) and the reasonableness of its request (Section 5).

3.3 Requirements for the Commission

In addition to the requirements imposed upon intervenors, described above, there are several statutory provisions that govern the manner in which the Commission is to administer the intervenor compensation program. SCE points to one such provision, § 1801.3(f), which expresses legislative intent that the Commission should administer the program "in a manner that avoids unproductive or unnecessary participation that duplicates the participation of similar interests otherwise adequately represented or in participation that is not necessary for a fair determination of the proceeding." Emphasizing this single aspect of the intervenor compensation statutes, SCE proposes that we reinstate the former Commission policy of imposing "duplication penalties," i.e., reductions to compensation awards where the intervenor's participation results in a substantial contribution but also overlaps that of another intervenor. In D.03-03-031, we ordered that this policy be discontinued.⁴

In D.03-03-031 and D.04-07-039 the Commission carefully considered the intervenor compensation statute as a whole, including § 1802.5, § 1803, and the entirety of § 1801.3. It determined that the imposition of duplication penalties was contrary to legislative intent. The Commission concluded that it would be "impermissible under the statutes governing intervenor compensation to reduce intervenor compensation awards on account of duplication once the Commission has determined that the participant made a `substantial contribution` in Commission proceedings." (D.04-07-039.) SCE has failed to present a persuasive legal or policy argument for reinstating duplication penalties. We therefore decline SCE's suggestion that we overrule D.03-03-031 and D.04-07-039 with respect to this issue.

Properly understood, under D.03-03-031 and D.04-07-039, we may still find that an intervenor who, for example, merely endorses the position of another party, has not thereby made a substantial contribution. The statute clearly states that in such a situation, the test of whether the intervenor made a substantial contribution is, did the intervenor supplement, complement, or otherwise contribute to the party whose position the intervenor endorsed? (See § 1802.5.) We have applied this test since the cited decisions, and we do so today.