June 6_IntrvnrFund.doc

DECISION MEMORANDUM

TO: COMMISSIONER KJELLANDER
COMMISSIONER SMITH
COMMISSIONER HANSEN
JEAN JEWELL
RON LAW
GENE FADNESS
BILL EASTLAKE
LOU ANN WESTERFIELD
DON HOWELL
RANDY LOBB
TERRI CARLOCK
DAVE SCHUNKE
TONYA CLARK
BEV BARKER
WORKING FILE

FROM: LISA NORDSTROM

DATE: JUNE 6, 2001

RE: APPLICATION FOR INTERVENOR FUNDING IN THE IDAHO POWER PCA CASES, CASE NOS. IPC-E-01-7 AND IPC-E-01-11.

On May 17, 2001, the Land and Water Fund of the Rockies, Mary McGown, Idaho Rivers United, and Idaho Rural Council (“Intervenors”) petitioned the Idaho Public Utilities Commission for intervenor funding pursuant to Idaho Code § 61-617A and Rules 161-165 of the Commission’s Rules of Procedure, IDAPA 31.01.01, for the amount of $9,661.84. Idaho Power Company’s response, filed on May 24, 2001, did not object to the Intervenors’ Application for intervenor funding. Idaho Power did, however, ask that it be permitted to include the payment of the award as an expense in the Power Cost Adjustment (PCA) for the PCA year 2001-2002, unless the Commission authorizes a further increase in the pending PCA proceeding. Furthermore, Idaho Power noted that it would appear equitable to allocate the amount of the award to all classes of customers, not just the residential class that the Intervenors stated they sought to benefit.
INTERVENORS’ APPLICATION
The Intervenors state that they materially contributed to the Commission decision by requesting that the Commission order Idaho Power to immediately reinstate certain Demand-Side Management (DSM) programs using a portion of the funds sought through the combined PCA filing. Motion for Reinstatement of Demand-Side Management Programs at 2-3, 10-12 (hereinafter “Motion”). The Intervenors further advocated that the Commission initiate proceedings to evaluate long-term funding methods for DSM programs, and to evaluate the establishment of other DSM programs. Motion at 2-3, 10-12. The Commission “partially granted” Intervenors’ Motion by initiating Case No. IPC-E-01-13 and directed Idaho Power to “file a comprehensive demand-side management program by August 1, 2001....” Order No. 28722 at 28. The Intervenors note that this Order marked a significant change in Idaho energy policy, “reversing course from Idaho Power’s efforts in the mid- to late-1990’s to terminate the vast majority of its DSM programs.” Application at 2. Intervenors and Commission Staff also asked that the Commission implement a block rate design for residential customers to encourage conservation. Motion at 3. The Commission subsequently implemented a block rate design for residential customers. Order No. 28722 at 24-25. The Intervenors also argue that their filings differed materially from those submitted by Staff in that Staff only touched upon a low interest loan program while the Intervenors posed “supported and specific requests for reinstatement of DSM programs.” Application at 2.
The Intervenors allege that the following fees and costs were reasonably incurred in this proceeding:
Legal fees $5,130.00
William M. Eddie
51.3 hours @ $100 per hour

Expert witness and consultation fees $1,950.00
Anthony Jones
30 hours @ $65 per hour

Expert consultation fees $2,496.00
Advanced Energy Strategies
9.5 hours @ $85 per hour
18.5 hours @ $125 per hour, less a 20% discount

Costs $85.84
photocopying & postal expenses

TOTAL $9,661.84

The Application explains that the $100 hourly fee charged by Mr. Eddie is on the low end of fees charged by other Idaho attorneys of similar experience in specialized fields, and is well below rates at which Mr. Eddie has charged in other matters. Intervenors note that they do not seek compensation for the hours that attorney Sara Denniston has expended in this matter, nor for miscellaneous copying, mailing, or telephone expenses other than those associated with copying and mailing their Motion and Comments. The Application further notes that payment of the requested costs would constitute a financial hardship for Mary McGown, an individual Idaho Power ratepayer lacking financial resources, and for the non-profit organizations of Idaho Rivers United and Idaho Rural Council.
Intervenors state that they intend to remain involved in the further proceedings for disputed PCA issues and in the IPC-E-01-13 DSM case, but at a more limited level. Thus, this Application is the Intervenors’ “total request for funding” and they “waive any further request for intervenor funding in this combined PCA filing and in IPC-E-01-16.” Application at 2 (FN 1).
STATUTORY STANDARDS
Idaho Code § 61617A and Rules 161-165 of the Commission’s Rules of Procedure provide the framework for awards of intervenor funding. Section 61617A provides that the Commission shall rely upon the following considerations in awarding funding to a given intervenor: (1) whether the intervenor materially contributed to the decision rendered by the Commission; (2) whether the alleged costs of intervention are reasonable in amount and would be a significant financial hardship for the intervenor to incur; (3) whether the recommendation made by the intervenor differed materially from the testimony and exhibits of the Commission Staff; and (4) whether the testimony and participation of the intervenor addressed issues of concern to the general body of users or consumers.
Subsection 5 of this statute provides that intervenors who are in direct competition with the public utility involved in proceedings before the Commission shall not be granted funding. The statute also provides that the total award for all intervening parties combined shall not exceed $25,000 in any proceeding.
Rule 162 of the Commission’s Rules of Procedure provides the procedural requirements with which an application for intervenor funding must comply. The application must contain: (1) an itemized list of expenses broken down into categories; (2) a statement of the intervenor’s proposed finding or recommendation; (3) a statement showing that the costs the intervenor wishes to recover are reasonable; (4) a statement explaining why the costs constitute a significant financial hardship for the intervenor; (5) a statement showing how the intervenor’s proposed finding or recommendation differed materially from the testimony and exhibits of the Commission Staff; (6) a statement showing how the intervenor’s recommendation or position addressed issues of concern to the general body of utility users or customers; and (7) a statement showing the class of customer on whose behalf the intervenor appeared.
Finally, Rule 165 provides that the Commission must find that the intervenor’s presentation materially contributed to the Commission’s decision.
There were no motions filed in opposition to Intervenors’ Application for intervenor funding within the 14day time period provided for in Rule 164.
FILING DEADLINE
The Intervenors’ Application, Supporting Points and Authorities and Declaration of William M. Eddie appear to apply with the statutory requirements described above. However, Commission Rule 164 states that “an intervenor requesting intervenor funding must apply no later than fourteen (14) days after the last evidentiary hearing in a proceeding or the deadline for submitting briefs, proposed orders, or statements of position, whichever is last.” IDAPA 31.01.01.164 (Emphasis added). Depending upon the Commission’s interpretation of Rule 164, it could reach one of the following conclusions:
Option #1: If the Commission finds that the “last evidentiary hearing in a proceeding” is the August 28-30, 2001 hearing scheduled for disputed PCA issues, the Intervenors’ Application is timely. This position is supported by Commission precedent in Order Nos. 20610 (Case No. U-1006-265) and 21513 (Case No. U-1002-67), in which the Commission did not consider a “two-phase” case concluded at the completion of the first phase. In Order No. 20610, the Commission observed that the case was not yet closed because a second phase remained to address revenue allocation and rate design issues. Consequently, it deferred ruling on intervenor funding until the end of the second phase. Order No. 20610 at 134.
Option #2: The Application could also be considered timely if the Commission interprets the “last evidentiary hearing” or “statements of position” as extending to Case No. IPC-E-01-13, which was “spun out” from Case Nos. IPC-E-01-7 and IPC-E-01-11 in Order No. 28722. This argument assumes that the Commission will seek comments or “statements of position” in IPC-E-01-13 once Idaho Power files its DSM program by the August 1, 2001 deadline set in Order No. 28722.
Option #3: However, if the Commission finds that the “proceeding” as to DSM issues ended with Order No. 28722 issued May 1, 2001, the intervenor funding filing deadline falls 14 days after the deadline for submitting “statements of position.” Under this view, the intervenor funding filing deadline fell on April 30, 2001—14 days after the April 16, 2001 comment deadline. The Intervenors did not file their request for intervenor funding until May 17, 2001. To recover intervenor costs, this option would have required the Intervenors to: 1) predict that the Commission would make a final decision (i.e., initiate a new DSM case) on DSM issues without DSM-specific public comment or hearings, and 2) file their intervenor funding application on the day before the Commission entered its Order.

COMMISSION DECISION

Did the Intervenors fail to meet the 14-day intervenor funding filing deadline? If so, does this failure prevent them from recovering the amounts they seek?

Does the Commission wish to grant, deny or defer deciding Intervenors’ request for intervenor funding?

If intervenor funding is granted, should Idaho Power be permitted to include the payment of the award as an expense in the Power Cost Adjustment (PCA) for the PCA year 2001-2002 unless the Commission authorizes a further increase in the pending PCA proceeding?

If intervenor funding is granted, should the amount of the award be allocated to the residential class (whom the Intervenors stated they sought to benefit) or to all customer classes (as recommended by Idaho Power)?

______________________________
Lisa Nordstrom

M: IPCE0107_IPCE0111_ln_funding

DECISION MEMORANDUM 5