4. Substantial Contribution
In evaluating whether TURN 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 TURN? (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.3
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. 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.
TURN asserts that it made a substantial contribution in the proceeding that directly contributed to the recommendations proposed in the ALJ's proposed decision, the Brown Alternate, and the final decision, D.04-09-020. TURN's substantial contribution can be seen in the final decision's disallowance of automatic meter reading costs. The Commission agreed with TURN's argument that any benefit that this spending produced for system safety and reliability was too remote and insignificant to qualify as a reasonable use of § 368(e) funds.4 The Commission adopted TURN's recommendation to disallow recovery of costs incurred to purchase vehicles for metering purposes.5 The Commission also agreed with TURN's arguments in opposition to the utility's request to recover over $2 million in costs related to electric industry restructuring here, rather than in the Section 376 proceeding.6 The Commission kept the proceeding open and the (System Safety and Reliability Balancing Account) for the sole purpose of recovering and crediting to ratepayers any reimbursements for joint pole test and treat work.7
TURN's substantial contribution to the proceeding is apparent in the ALJ's proposed decision that recommended adopting many of TURN's other recommendations in this proceeding. The Commission has repeatedly held that an intervenor's contribution to a final decision may be supported by contributions to a proposed decision, even where the Commission's final decision does not adopt the proposed decision's position on a particular issue.8
PG&E's rebuttal testimony responded in detail to TURN's testimony. The utility reduced its request for cost recovery by $362,249 in automatic meter reading costs and $348,823 for metering projects, for a total of $711,072 attributable to TURN's testimony identifying errors.
TURN's comments on the Brown Alternate resulted in a significant change to the discussion on burden of proof. TURN and PG&E were the only parties to submit comments on the Brown Alternate, and only TURN criticized this aspect of the Alternate as a departure from past Commission.9 PG&E's Opening Comments were silent on this issue, and its Reply Comments argued that TURN's argument on this point was incorrect. The Brown Alternate was revised for the final decision to reflect TURN's position on the burden of proof issue in the general discussion of the applicable standards.
TURN's involvement was extensive and included participation in hearings and preparation of comments, expert testimony, and briefs, and therefore TURN made a significant contribution to final decision. Although, TURN was not successful on every argument presented, the two draft decisions and the final decision reflect the significant impacts of TURN's advocacy.
TURN was one of only two parties (the Office of Ratepayer Advocates was the other) to test PG&E's assertions on the reasonableness of § 368(e) costs and its efforts gave the Commission important information regarding PG&E's actions. Every issue raised by TURN was relevant and within the scope of the proceeding, therefore there is no need to consider any adjustment to the time TURN spent on the proceeding.
The Commission has previously awarded full compensation where the intervenor's positions were not adopted in full, especially in proceedings with a broad scope. (See D.98-04-028, 79 CPUC2d 570, 573-574.) Here, TURN achieved a less than total level of success in the final decision on the issues it raised. In the areas where we did not adopt TURN's position in whole or in part, we nevertheless benefited from TURN's analysis and discussion of the issues.
3 D.98-04-059, 79 CPUC2d, 628 at 653.
4 See D.04-09-020, p. 16 and Conclusion of Law 11; and TURN Opening Brief, pp. 10-11.
5 Id. at pp. 26-27 and Conclusion of Law 15, and TURN Opening Brief, pp. 21-22.
6 Id. at pp. 21-22, and TURN Reply Brief, pp. 12-13.
7 Id. at pp. 25-26, and TURN Opening Brief, pp. 11-12.
8 D.92-08-030, mimeo. at 4; D.96-08-023, mimeo. at 4; D.96-09-024, mimeo. at 19; D.99-11-006, mimeo. pp. 9-10; D.01-06-063, pp. 6-7.
9 TURN's August 12, 2004 Comments on the Brown Alternate, pp. 1-3.
