IV. Substantial Contribution
In evaluating whether a customer made a substantial contribution to a proceeding, we look at several things. 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, if the customer's contentions or recommendations paralleled those of another party, 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.) As described in § 1802(i), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.
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
Should the Commission 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. 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 made to the proceeding.
A. 280 Citizens
280 Citizens participated actively throughout the proceeding and attended both of the PHCs. In response to an ALJ ruling, 280 Citizens offered recommendations on issues to be considered in the proceeding, and later submitted comments on the issues adopted in the Scoping Memo. 280 Citizens provided comments on the utilities' design guidelines and application of the design guidelines to representative FMPs. 280 Citizens' substantial contribution to specific issues addressed in D.06-01-042 is discussed below.
1. Utility EMF Design Guidelines and Field Reduction Measures
280 Citizens proposed standardizing the utility design guidelines to include measures used by one utility and not another. 280 Citizens also urged that the utilities expand their lists of EMF reduction measures and consider less typical measures. The Commission adopted some of these recommendations, and also ordered utilities to convene a workshop for this purpose.5 We find that 280 Citizens made a substantial contribution on both of these issues.
280 Citizens contended that the edge of the utility right-of-way (ROW) is the appropriate location for EMF modeling or measurement, or that the measurement should occur at points generally used by the public. The Commission adopted the ROW border as the point for EMF measurement, a location generally already used by the utilities. While the Commission rejected using points generally used by the public as a location for EMF measurement, it noted that in some unique circumstances, other locations might be considered. Although we did not adopt all of 280 Citizens' proposals on this matter, their input provided a substantial contribution to our adopted position.
280 Citizens recommended that although transmission lines may be located underground, such placement should not prohibit additional EMF reduction measures. The Commission adopted this position, although it noted that any additional mitigation cost should achieve significant further EMF mitigation. On this issue, 280 Citizens provided a substantial contribution.
The Commission did not adopt 280 Citizens' recommendation regarding "low-cost"6 mitigation measures for rural, agricultural, and undeveloped land. However, the Commission stated that no-cost mitigation measures should always be applied in all locations, including rural, agricultural, and undeveloped land. While the Commission did not adopt 280 Citizens' position regarding low-cost mitigation for undeveloped land, it did agree that no-cost measures should always be applied to all projects, and to that extent 280 Citizens made a substantial contribution on this issue.
280 Citizens argued that mitigation costs should not be limited to 4% of project costs where additional mitigation costs would result in substantial reduction in EMFs, particularly where exposure involved "large numbers of people." Although the Commission rejected this argument, it provided exceptions to the 4% low-cost benchmark under unique circumstances. To this extent, 280 Citizens made a substantial contribution on this issue.
The Commission rejected 280 Citizens' proposal to require actual measurements of EMF, and therefore on this issue, 280 Citizens did not make a substantial contribution.
280 Citizens recommended that the Commission: (1) continue to review new scientific studies on EMF and consider the assignment of Commission staff; (2) close the rulemaking and implement EMF policies; and (3) open a new rulemaking when new scientific data is available. The Commission adopted all of these recommendations regarding the development of new scientific data and studies, and therefore 280 Citizens made a substantial contribution on these issues.
280 Citizens proposed that utilities amend their EMF design guidelines to include measures listed in the guidelines of one utility but not another, and to expand design guidelines to include less typical mitigation measures. These proposals led to the Commission ordering the utilities to convene a workshop for the purpose of standardizing design guidelines. Thus on this issue, 280 Citizens made a substantial contribution which was noted and adopted by the Commission.
B. Kheifets
Kheifets participated in the PHCs and commented on the proposed scope of the proceeding. She also submitted comments on the utilities' FMPs, and replied to the comments of other parties on FMPs. Kheifets specific contributions to the proceeding and D.06-01-042 are discussed below.
As noted in her request for compensation, Kheifets' major contribution to this proceeding involved her knowledge and experience working in the area of EMF-related scientific data. Using this background, Kheifets focused her comments on the adequacy of no-cost and low-cost mitigation measures, and on EMF policies adopted worldwide. In particular, Kheifets, argued against adopting specific EMF exposure limits, and explained that future scientific studies are likely to recommend no-cost and low-cost EMF mitigation measures, similar to those adopted in D.06-01-042. D.06-01-042 cited her comments on anticipated EMF scientific studies and adopted the use of no- and low-cost mitigation measures. Kheifets also recommended that the strengths of each utility's design guidelines should be combined. D.06-01-042 adopted this position by ordering a workshop among the utilities to standardize design guidelines. On this issue and particularly with regard to the development of new scientific data and studies, Kheifets made a substantial contribution to D.06-01-042.
C. CCAE
CCAE jointly participated with Fund for the Environment (Fund); however, CCAE has filed a separate compensation request, and states its request is only for expenses incurred by CCAE, and none by Fund. Thus, the discussion below addresses CCAE's substantial contribution to D.06-01-042 and only CCAE's participation in this proceeding.
CCAE participated in the PHCs, provided comments regarding the scope of the proceeding, and submitted a prehearing statement in the April 2005 PHC. In its prehearing statement, CCAE recommended measurement of EMF levels and comparisons to EMF levels "associated with negative health impacts."7 CCAE further recommended the collection of various data, including data relative to a sample of constructed transmission lines, as well as the use of modeling for determining EMF measurements.
Later, CCAE provided comments on the various sample FMPs including recommendations for EMF measurements based on EMF levels of 2 and 4 milligauss. CCAE also submitted reply comments addressing the 4% benchmark, EMF measurements to validate modeling, expansion of mitigation measures, land use priority, EMF design guideline, and disagreement over the findings of epidemiologic studies.
CCAE states it identified the need for data on transmission lines, which in turn led to a review of the utilities' design guidelines. CCAE explains that in response to this proposal, utilities provided 13 FMPs for which the Commission's no-cost/low-cost mitigation policy was applied. This review of how the utilities implemented design guidelines formed the basis for improvements in the Commission's no-cost/low-cost mitigation policies. CCAE's recommendations and participation on this issue provided a substantial contribution to D.06-01-042.
Following the review of EMF design guidelines, CCAE proposed that residential areas be included in the first priority mitigation class, along with schools and licensed day-care centers. CCAE argues that although the Commission did not adopt CCAE's proposed addition of residential areas to the first priority mitigation class, the Commission did include hospitals in the first priority, thereby reflecting CCAE's inclusion of health-related facilities in this priority class.8
CCAE is correct that D.06-01-042 included hospitals in the first priority. However, CCAE's proposal included "long-term health-related facilities" as one of a number of locations9 for measuring EMF before and after mitigation, and not as a separate priority class. Therefore, while CCAE contributed to the consideration of hospitals in this priority class, it was not a specific proposal, and did not result in a substantial contribution on this issue.
CCAE states that prior to D.06-01-042, Pacific Gas and Electric Company's (PG&E) design guidelines required that every area within a priority group must receive equal mitigation treatment, otherwise no low-cost measure will be applied to this priority group or to lower priority groups. CCAE argued that this principle should not be applied in design guidelines, and instead, priorities within a group should be set based upon proximity to the project, people exposed and exposure levels. D.06-01-042 adopted a modification of CCAE's position and requested utilities to modify their design guidelines such that residences most impacted by EMF will receive some mitigation. We find that on this issue CCAE made a substantial contribution to D.06-01-042.
After we have determined the scope of a customer's substantial contribution, we then look at whether the compensation requested is reasonable.
4 D.98-04-059, 79 CPUC 2d, 628 at 653.
5 See, D.06-01-042, mimeo., pp. 16-17.
6 Low-cost mitigation is generally defined as mitigation costs that do not exceed 4% of total project cost.
7 Joint Prehearing Conference Statement of CCAE and Fund, p. 2.
8 Id.
9 CCAE included long-term health care facilities as well as schools, pre-schools, residences and workplaces as locations for measuring EMF. (Joint Comments of CCAE and Fund, p. 2, July 26, 2005.)
