20110413Augmenting BCA Briefs.pdf

RECE1VED
2011 APR 13 M1 8: 33
Michael C. Creamer, ISB No. 4030
Michael P. Lawrence, ISB No. 7288
GIVENS PURSLEY LLP
601 W. Bannock Street
P.O. Box 2720
Boise, Idaho 83701-2720
Telephone: [phone]
Facsimile: 208-388-1300
10495-2_1136490_2
Attorneys for Petitioner/Appellant The Building
Contractors Association of Southwestern Idaho, Inc.
~5up..Ë-(O-o1
IN THE SUPREME COURT OF THE STATE OF IDAHO
IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY TO
MODIFY ITS RULE H LINE EXTENSION
TARIFF RELATED TO NEW SERVICE
A TT ACHMENTS AND DISTRIBUTION
LINE INSTALLATIONS.
AUGMENTING THE BRIEFS OF THE
BUILDING CONTRACTORS
ASSOCIATION
THE BUILDING CONTRACTORS
ASSOCIATION OF SOUTHWESTERN
IDAHO,
Supreme Cour Docket No. 37293-2010
Petitioner-Appellant,
vs.
IDAHO PUBLIC UTILITES COMMISSION,
and IDAHO POWER COMPANY,
Res ondents on A eaL.
Pursuant to Idaho Appellate Rule 34(f)(1), Petitioner-Appellant The Building Contractors
Association of Southwestern Idaho, Inc. ("BCA"), by and through its counsel of record, Givens
Pursley LLP, hereby augments its briefs on appeal by adding the citation of Idaho Public Utility
Commission ("IPUC") orders as indicated below:
AUGMENTING THE BRIEFS OF THE BUILDING CONTRACTORS ASSOCIATION - 1
1. BCA' s May 24, 2010 Appellant's Brief section IV.E.2 ("The Commission abused its
discretion in finding that BCA failed to raise "issues of concern to 'the general body
of users or consumers."') at pages 39-40 and BCA's August 6,2010 Appellant's
Reply Brief section II.D.3 ("BCA has raised issues of concern to the general body of
ratepayers.") at 22-24 should be augmented by adding the following citation:
a. IPUC Order No. 24941 at 7-8, In the matter of the Application of Idaho Power
Company for Approval for a Commercial Lighting Energy Effciency Program
(Case no. IPC-E-93-5; Jun. 15, 1993).
2. Building Contractor's May 24, 2010 Appellant's Brief section IV.E.3 ("The
Commission abused its discretion in denying BCA's requests for intervenor fuding
for BCA's efforts made prior to the Original Order.") at pages 40-41 and BCA's
August 6, 2010 Appellant's Reply Brief section II.D.l ("BCA's initially untimely
request for intervenor funding was cured by the Commission's continuance of the
proceedings.") at 18-19 should be augmented by adding the following citations:
a. IPUC Order No. 21513 at 2-3, In the matter of the Application of General
Telephone Company of the Northwest, Inc. for Authority to Increase its Rates
and Charges (Case no. U-1002-67; Oct. 16, 1987); and
b. IPUC Order No. 27267 at 5-6, In the matter of Idaho Power's Applicationfor
Authority to Implement a Public Purposes Charge to Fund the Company's
Participation in the Northwest Energy Effciency Allance (Case no. IPC-E-
96-26; Dec. 19, 1997).
AUGMENTING THE BRIEFS OF THE BUILDING CONTRACTORS ASSOCIATION - 2
The above-listed additional authorities' placement into BCA's briefing is summarized in
the following table:
Sections ofBCA's Sections of BCA's
Idaho Public Utilties Commission Appellant's Brief Appellant's Reply Brief
("IPUC") Order to Augment to Augment
IPUC Order No. 24941 at 7-8, In the matter
of the Application of Idaho Power Company Section IV.E.2 at pages Section II.D.3 at 22-24
for Approval for a Commercial Lighting 39-40
Energy Effciency Program (Case no. IPC-
E-93-5; Jun. 15, 1993)
IPUC Order No. 21513 at 2-3, In the matter
of the Application of General Telephone
Company of the Northwest, Inc. for
Authority to Increase its Rates and Charges
(Case no. U-I002-67; Oct. 16, 1987)
Section IV.E.3 at pages Section II.D.1 at 18-19
IPUC Order No. 27267 at 5-6, In the matter 40-41
of Idaho Power's Application for Authority
to Implement a Public Purposes Charge to
Fund the Company's Participation in the
Northwest Energy Effciency Allance (Case
no. IPC-E-96-26; Dec. 19, 1997)
Copies of the additional authorities obtained from the Commission are attached hereto for
the Court's convenience.
DATED THIS 12th day of April, 2011.
ichae C. Creamer
Attorneys for The Building Contractors
Association Of Southwestern Idaho
AUGMENTING THE BRIEFS OF THE BUILDING CONTRACTORS ASSOCIATION - 3
CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of April, 2011, I caused to be served a tre and
correct copy ofthe foregoing by the method indicated below, and addressed to the following:
ÆD
DD
Weldon Stutzman
Kristine A. Sasser
Deputy Attorneys General
Idaho Public Utilities Commission
472 W. Washington
PO Box 83720
Boise,ID 83720-0074
Weldon. Stutzmantfpuc.idaho.gov
kris. sassertfpuc.daho. gov
Lawrence G. Wasden
Attorney General
Statehouse
PO Box 83720
Boise, ID 83702-0010
ÆDD
D
A
D
D
D
Lisa D. Nordstrom
Baron L. Kline
Idaho Power Company
1221 W. Idaho St.
PO Box 70
Boise, ID 83707-0070
lnordstromtfidahopower .com
bklinetfidahopower .com
Jean D. Jewell
Commission Secretary
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
~DDD
U.S. Mail, postage prepaid
Express Mail
Hand Delivery
Facsimile
Electronic Mail
U.S. Mail, postage prepaid
Express Mail
Hand Delivery
Facsimile
Electronic Mail
U.S. Mail, postage prepaid
Express Mail
Hand Delivery
Facsimile
Electronic Mail
U.S. Mail, postage prepaid
Express Mail
Hand Delivery
Facsimile
Electronic Mail
AUGMENTING THE BRIEFS OF THE BUILDING CONTRACTORS ASSOCIATION - 4
Merlyn W. Clark
D. John Ashby
Hawley Troxell Ennis & Hawley LLP
877 Main Street, Ste. 1000
PO Box 1617
Boise,ID 83701-1617
mclarktfhawleytroxell.com
i ashbytfhawleytroxell.com
Attorneys for Appellant Ada County Highway District
£
D
D
D
U.S. Mail, postage prepaid
Express Mail
Hand Delivery
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Electronic Mail
~~
AUGMENTING THE BRIEFS OF THE BUILDING CONTRACTORS ASSOCIATION - 5
..Office of the Secretary
Service Date
¡OCT 16 1987
BEFORE THE IDAHO PUBLIC UTIT COMMSION
IN TH MATTER OF TH APPLICATION )
OF GENERA TELEPHONE COMPANY OF )
THE NORTHWT. INC. FOR AUTHORIY )
TO INCREASE ITS RATE AN CHARGES )
)
CASE NO. U-1oo2-7
ORDER NO. 21513
On September 18, 1987, the Idaho Public Utilties Commission received an
application from the Committee for Fair Rates for intervenor funding. The Committee
was granted intervention in General Telephone Company of the Northwest's (GTNW or the
Company) rate Case No. U-1002-67. The Committee's intervenor funding request
totalled $15,975.74. On September 29, 1987, the Comrnission received a Motion from
GTNW opposing the Cornmittee's application for intervenor funding. For reasons outlined
below, the Commission grants the Committee $1,445.74 in intervenor funding at this time.
TH APPLICATION
The Committee's application for intervenor funding Was postmarked
,September 14, 1987 and received at the Commission September 18, 1987. The Committee
requested remuneration for its expert witness fee of $6,480, legal fees of $8,050, and
expenses (pncipally travel, lodging and per diem) of $1,445.74. The Committee's
application also included proposed findings and recommendations. As indicated in its
direct testimony, the Committee suggested that the Commission deny $1.2 milion in
additional revenues to GTNW because the Company abandoned the toll settlement
agreement. The Committee further recommended that the price of basic exchange
servce "should be tied to a combination of stand-alone cost analysis, value of servce
considerations, and universal service objectives." Finally, the Comm.ittee suggested that
the Commission place GTNW on notice that rate basing of future capital investment
should be subject to the degree of regulatory controls over that capital investment.
ORDER NO. 21513 1
..
GTNW'S MOTION
The Company objected to intervenor funding for three reasons. The Company
argued that intervenor fuhding should be denied because (1) the request for intervenor
funding was untimely; (2) the Committee's participation in this case did not materially
contribute to the Commission's decision; and (3) the Committee did not dernonstrate that
it has suffered a significant financial hardship necessitating intervenor funding. These
issues are discussed below.
A. Timelin. The Company argued that the Comrnittee's request for
funding is untimely. Idaho Code §61-617A authorizes the Commission to adopt rules and
regulations implementing the intervenor funding statute. Rule 16.2 of the Commission's
Practice and Procedure Rules states that an intervenor must request such funding "no
later than the last evidentiary hearing in a proceeding or the deadline for submitting
briefs, proposed orders, or statements of position, whichever is last."
At the conclusion of the Post Falls hearings, the Commission authorized the
parties to file a summary of the evidence presented and additional comments by July 24,
1987. Tr. at 957-58. The Commission issued its Final Order (No. 21443) in this case on
September 11, 1987. The Committee did not mail its funding request until September 14,
1987. Thus, the Company maintained, it is "incongrous to fie proposed findings or
recommendations after the Order has already been issued." GTNW Motion at 3.
As the Company correctly points out in its Motion, the Commission's Rule 16.2
does not specifically address intervenor funding in a bifurcated case. For purses of
intervenor funding we find: This two-phase case should be treated as a single proceeding.
It was the Commission that ordered this case divided into two phases. Our finding is also
consistent with actions of the previous Commission. In the two-phase Idaho Power case
(No. U-1006-265), the Commission did not consider the case concluded at the completion
ORDER NO. 21513 2
..
of the first phase. The Commission observed that a second phase remained to address
revenue allocation and rate design issues. The Commission deferred ruling on intervenor
funding until the end of the second phase. Therefore, we find: The Committee's curent
request is timely because the deadline for requesting intervenor funding is at the
conclusion of phase 2.
B. Mater Contrtin. GTNW also argued that the Committee did not
materially contribute to the Commission's decision, specifically, that part of the Order
addressing future GTNW capital investment. GTNW acknowledged that the Commission
did expand phase 2 of this case "to include formulation of policy on the modernization of
the telecommunications network, (but) the very fact that it did so demonstrates that the
intervenor's testimony was insufficient to guide the Commission's policy on
modernization." GTNW Motion at 5.
As stated in the intervenor funding statute, the determination of intervenor
funding shall be based upon "a finding that the participation of the intervenor has
materially contributed to the decision rendered by the Commission." Idah Code
§6l-617A(2)(a). Dr. Power argued on behalf of the Committee that the Company's
ratepayers were being asked to pay for network modernization which promises enhanced
servces and lower future costs. He testifed that "(i)f the investments are made to
provide servces that are to be unegulated, . . . (GTNW) should carr these investments
until the revenues genera ted from the new services and cost reduction justify the
investment!' Order No. 21443 at 39, quoting Tr. at 693.
As a preliminary matter, we find: That the testimony of Dr. Power did
materially contribute to our decision to expand the second phase of this case and possibly
to our eventual decision regarding the modernization of the telecommunications network.
The concerns expressed by the Committee and the Staff prompted us to seek additional
comments from the parties. Our Order solicits testimony on whether the Commission
ORDER NO. 21513 3
..
needs to form a policy on the modernization of the telecommunications network and the
regulatory treatment of major plant investments which may not be subject to future
regulatory control. Order No. 21443 at 40-41.
C. Fiiia Hardship. Finally, the Company asserted that the Committee
has not met the required showing of a significant financial hardship. The Company stated
that the Committee did not indicate the size of its membership nor disclose whether the
Committee has access to funding sources from grants or other public interest
contributions. The Company also questioned whether the Committee's counel, Scott
Reed, has "donated" ,as opposed to "contracting", his servces to the Committee.
For the purses of this Order, we find: That the Committee's has adequately
demonstrated financial hardship and we award, at this time, intervenor funding in the
amount of $1,445.74. This figue represents actual travel, lodging, per diem and
reproduction expenses. We wil defer the remainder of the Committee's request and aU
others requests for intervenor funding until the end of phase 2. Deferrng the remainder
of the Committee's request wil allow it to address GTNW's comments in greater detail
and wil allow us to apportion the remaining intervenor funding.
In summary, we award $1,445.74 at the time in intervenor funding to the
Committee for Fair Rates. The Committee and aU other intervenors intending to request
funding must submit their applications at the conclusion of the second phase of this case.
The remaining amount of intervenor funding for this two-phase case is $18,554.26
($20,000-1,445.74).
o R D E R
IT is THEREFORE ORDERED that the Committee for Fair Rate's application
for intervenor funding is granted in part and denied in part. The Committee is awarded
ORDER NO. 21513 4
..
$1,445.74 in intervenor funding. The remainder of the Committee's funding request is
deferred unti the end of phase 2 (Case No. U-1002-67A).
IT IS FURTHER ORDERED that GTNW's Motion in Opposition to Intervenor
Funding is hereby denied.
IT iS FURTHER ORDERED that GTNW must pay the Committee for Fair Rates
-.
$1,445.74 within 28 days of the service date of this Order. This expense wil be treated as
an allowable business expense and shall be chargeable to the Company's residential
ratepayers in the Final Order following phase 2.
IT is FURTHER ORDERED that the Committee and all others intervenors
intending to request intervenor funding shall submit such applications at the conclusion .of
the second phase of this case.
DONE by Order of the Idaho Public Utilties Commission at Boise, Idaho,
this /¿; ¿,L day of October, 1987.
r ? s. . v-:-. ..-.. -')'~~.
PERRY SW R, PRESIDENT
~\QQ~D N J. MILLER, COMMISSIONER
¿~ .~&e..Oâ
RÂi ~ELSON, COMMSSIONER
ATTEST:~Q.h¿b~MYWATERS, SECRETARY
dhlcb624L
ORDER NO. 21513 5
. e ...ri
JUN 15 1993
BEFORE THE IDARO PUUC UT COMMON
IN TH MNrrE OF TH APCATION )
OFIDAHOPOWECOMPANFORAP- ) CA NO. IPE-93-5PRVAL OF A COMMCI LIGHTG )ENRG EFCICY PRGRA )
) ORDER NO. 241
)
BACKGROUN
On February 7, 1993, the Idaho Power Company (Idaho Power;
Company) fied an Application for Commsion approval ofa Conserv~tion
Lighting Program. On Apri 6, 1993, the Commercial Utilty Customers of Idaho
Power (CUC) fied a Petition to Intervene and Application for Inteenor Fuding
in this case. CUC simultaneously fied extnsve comments in response to Idaho
Power's Application. On May 26, 1993, the Commssion issued Order No. 24913
approvig Idaho Power's Conservation Lighting Program. The only issue
remainig for reslution in this case is the matter of CUC's Application for
intervenor fuding.
CUC aleges that the followig expnses were incurd in this
proceeding:
Legal Fees:
Ronald L. Williams
35 brs. at $1101h.$3,850
Expert Witness Fees:
W. Davìd Eberle
33 brs.at $70Ihr.
Total
2M
$6,160
In addition, CUC states that if the Commssion accepts its
recommendation that Idaho Power presented a more detailed descption of the
proposed program to CUC for revìew and comment, prior to implementation, then
the CUC would request an additional $3,000 in intervenor funding to cover the
legal and expert analysis fee CUC projects would be incued in conducting such
a fuher and final revìew. CUC later alleged that it incued an additional $660
in legal fees as a result of Idaho Power's motion in objection to intervenor
fudig, discussed below . .,
ORDER NO. 24941 - 1 -
.-
In support of its application, cue states that, in preparg and
fialig comments in this case, it investigated a variety of'conservationissues,
researched varous consrvation-related program that Idaho Power has either
proposed or paricipated in for other cutomer classes and reviewed Idaho
Power's least cost planing docuents and resource maagement reports. CUC
members have met several times with Idaho Power personnel dug the coue
of the last several years and have specifieally discussed with Idaho Power
conservation options and programs that would benefit the Company's commrcal
customers. cue has also intervewed various membes of its affate
associations in preparig comments in this case.
cue contends that its paricipation in this case has ben of mateal
benefit to the general body of ratepayers of Idaho Power; the acquìsition of
demand-side resources from commercial lightig customers postpones the
eventual acquisition of an equivalent amount of new generatig capacity by
Idaho Power thus helping to keep all customer class rates lower than might
otherwse occu.
Idaho powr
On Apri 21, 1993, Idaho Power fied a motion in objection to CUC's
Application for Intervenor Fundig pursant to Rule 16 of the Commssion's
Rules of Practice and Procedure. Idaho Power states that it does not normaly
object to applications for intervenor fudig, relying instead upon the
Commssion's discretion and judgment in rug upon such applications. The
Company states, however, that "additional scrtiny is warranted when a matte
under consideration is being processed under modied procdure and the
applieation for intervenor fudig has been fied by the intervenor group that
will be the pri beneficiary of the program."
Idaho Power argues that such scrtiy cannot be accomplished
because CUC'sapplication for intervenor fundig is deficient. ldaho Power
argues that simply stating a lump sum amount attrbutable to attorneys' fees
and another lump sum attributable to exper witness fees is insufcieiit. The
Company also argues that CUC is attemptig to recover costs attributable to
work performed long before the application in this proceedig was filed. The
application was filed on Februar 17, 1993 and, Idaho Power argues, CUC is
requesting fudig to cover fees and costs incued through May 1,1992.
ORDER NO. 24941 - 2 -
e e
The Company states: '~dao Power has no objecon if theCUC's
request for intervenor fudig is denied without prejudice to the cue refing its
application or that the cue be given leave to fie additional inormation to
support its reques for intervenor fudig." Motion in Objection at p. 2.
On Apri 29, 1993, cue fied an Answer to Idaho Power's Moton in
Objection to Inteenor Fuding. cue argues that its application is not
deficient, as Idaho Power contends, in the matter in which it aleged its attoney
and expert witness fees. CUC contends that it adequately identifed the hours
and hourly rates of its attoney and expert as requied by Commssion Order
No. 24415 issued in Case No. IPC~E-92~10.
In response to Idaho Power's contention that eue was attmptig to
recOver costs incu before the filig of Idaho Power's application, euc notes
that its application for intervenor fudig contaied a tygraphical error. The
year "1992" listed on p.2 of euc's application should have been "1993." The
"May 1" date was referenced in the application because legal and exper witness
fees are billed as of month end.
cue argues, therefore, that none of the costs included in its
application for fudig were incud prior to May 1, 1992. eue admts,
however, that a porton of the costs for which fudig is requested were incued
by cue prior to the filig of Idaho Power's application in this case. cue bean
recordig costs in this case in response to Idaho Power's publication and
dissemiation of its "Draf Resource Portfolio for the 1993 Integrated Resource
Plan" beging in November 1992. Ths plan discussd the "Commercial
Lighting Program" which is the subjec of this case.
In response to the publication of this plan, CUC assert that it
submitted comments to Idaho Power on November 8, 1992 crtiquig Idaho
Power's proposed Commercial Lighting Program.
cue aleges that legal fees incued by it prior to the date or Idaho
Power's application in this case total only $572. All other fees, CUC contends,
were incued aftr Idaho Power's application was fied. Exprt witness fees
incurred prior to the fig of the Company's application total $525. cue
contends that whie $1,097 of its legal and expert witness fees were incurred
prior to the filing of Idaho Power's application, all the work conducted durig this
time period was germane to the issues addressed by cue in this case.
ORDER NO. 24941 - 3.
.e
cue argues that the Commssion does not need to draw a "bright lie"
in this case that costs incun-ed by an intervenor which quali for intervenor
fudig can only be incued afr the date of the utility fig. cue notes that a
utilty may have worked for several months in preparg to make a fig and
such work, in may instances, involves communcation with and responses from
customer groups or intevenors. These same intervenors, cue contends, should
not be denied the opportuty to recover gerane costs incun-ed prior to an
arbitrary date of fig. CUC believes that such a rue would be discrmiatory in
that all the utii.scosts incued prior to the date of fig are considered
reasonable expenses which would be fuy recovered in the context of a general
rate case.
CUC argues that there is no basis for Idaho Power's objection to
awardig fuding in this case simply because it was handled under modied
procedure. CUC notes that Idaho Code § 61-617 A(2) grants the Commssion
authority to award intervenor fuding "in any proceedig before . the
Commssion." CUC believes that it would be a violation of the statute to refse
to grant fudig simply because this case is being hadled under modifed
proedure.
cue believes that Idaho Power is attempting to require that
intervenors move to a higher level of reporting in preparg their applications for
intervenor fudig. CUC argues that the only level of reportg left to disclose is
the actual hourly tiiesheets recrded by attrneys and exp witnesses. This,
eue contends, would involve a disclosur of confdential communications
between attorney and client. cue argues that in addition to violating the
attorney-client priviege, requig a "time sheet" level of reporting would
eventualy lead to argunts as to whether a particuar attrney or expert's
hourly biling rate is too high, . that a parcular task should not have taken as
long as it did, or that a cerai cost incued or task performed was unecessar.
CUC concludes that the appropriate method for analyzig applications for
inteenor fudig is that cun-entlyused by the Commssion which is simply to
review the cumulative total for attorney and expert time, hourly rates, and total
out-of-pocket costs. Based on this information, CUCcontends, the Commssion
then has the ability to judge whether the overall requested fuding is reasonable
in amount.
ORDER NO. 24941 - 4-
e .
On May 5, 1993, Idaho Power fied a reply to CUC's response. Idaho
Power argues that becaus Idaho Code § 61-617A contains a reference to.'mtness
fees," intervenor funding should 'not be granted to recover expert fees in cases
handled under modified procedure where the expert doe not testify.
Idaho Power fuher asserts that there should be no recover for
expert fees incud prior to the fig of the Company's application.
Finally, Idaho Power argues that requig CUC to provide greater
detail of its expenses to determe whether they were incued prior to the fig
of the Company's application does not violate the.attorney-client priviege.
STATURY STANAR
Idaho Code § 61.617A and Rule 16 of the Commssion's Rules of
Practice and Procedure provide. the framework for awards .of inteenor fudig.
Section 61-617A provides that the Commssion shall rely upon the folloWi
considerations in awardig fundig to a given intervenor: (1) whether the
intervenor materally contributed to the decsion rendered by the Commsion;
(2) whether the alleged costs of intervention are reasonable in amount and wòud
be a signficant fiancial hardship for the intervenor to incu; (3) whether the
recommendation made by the intervenor diered materialy from the testimony
and exhbits of the Commssion 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 diect
competition with the public utility involved in proceedigs before the
Commssion shal not be granted fudi.
Fialy, the statute provides that the total award for all interveng
parties combined shall not exced $25,000.00 in any proceedg.
Rule 16.1 of the Commssion's Rules of Practice and Proedure
provides the procedural requiements with which an application for inteenor
fuding 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 explainng why the
costs. constitute a signicant fiancial hardship for the intervenor; (5) a
ORDER NO. 24941 - 5 -
..
statement showing how the intervenor's propose fidig or recommendation
diered materially from the tetimony and exhbits of the Commssion Staf;
(6) a statement showig how the intervenor's recommndation or position
addressed issues of concern to the general body of utility users or customers; and
(7) a statement showig the class of customer on whose behal the inteenor
appeared.
Fialy, Rule 16.3 provides that the Commssion must fid that the
Intervenor's presentation materially contrbuted to the Commssion's decsion.
FIINGS
We have not, to date, granted CUC's Petition to Inteene. We fid
that cue, as representative of a signcant number of small commercial
customers, has a diec and substantial interest in the implementation of Idaho
Power's Program which is, in fact, geared priarly toward small commercial
customers. We fuher note that Idaho Power did not object to the intervention of
CUC; only to its requested fudig. Puuant to Rule 5 of the Commssion's
Rules of Practice and Procdure, therfore, we hereby grant CUC's Petition to
Intervene.
We believe that Idaho Power's motion inobjeeon to inteenor
fudig raises the followig issues:
(1) Has CUC adequately identifed and speced itsexpenses?
(2) Should CUC's application be denied because ths case isbeing handled under modied produre?
(3) Should CUC's application be denied because CUC is theprima beneficiar of the program?
(4) Should that porton of CUC's expenses incued prior to
the fig of Idaho Power's application be denied?
BaR cue adecte iclntW and øp il aJ "I"?
We fid that CUC's application satisfies the proedural requiements
of Idaho Code § 61-617A and Rule 16 of the Commssion's Rules of Practice and
Procedur as well as Order No. 24415, issued in Case No. IPC-E-92-10. CUC has
provided the hourly rates of its expert and attorney as well as the number of
hours worked. CUC did not allege any costs in its application. No fuher deta
is tyically requied by this Commssion. Whe we do not feel legaly
ORDER NO. 24941 - 6-
..
constraied from seekig greate detai from an inteenor when circutances
justif our doing so. we find that additiona detai is not needed in this case.
Sh CUC's QPHea he ch beus ths ea ishør lyJe uiin6ed pr?
We reject Idaho Power.s arguent that fudig should not be granted
in cases handled under modied procdure. Such a litation would have a
chiing effect on involvement by outside paries. Fuhermore. we note . that
Idaho Code § 61-617A states that it is "the policy of this state to encourage
partcipation at all stages. of all prcedings before the Commssion so that all
affected customers reeive fu and fair representation in those proeegs"
(emphasis added). Fuhermre, the statute allows the award of inteenor
fudi "in any proceeding before the Commssion."
We believe that it would be inconsistent with the spirt, intent, and
specic letter of the statute to exclude cases handled under moded procedur
from qualication for intervenor fudig. The Commssion has exclusive contrl
over whether to handle a case under modied proedure. When we choose
modied procedure, it is on the basis that the case presents issues that can be
resolved through wrtten comment without the need to. incu the time and
exense of a hearing. It is not necessay because the case is uncomplicated or
does not requie the use of an expert. We fid, therfore. that CUC's application
should not be sumarly denied simply because thi case has been . handled
under modified proedure. The fact of whether a case is hadled under moded
proedure is relevant to the reasonableness of the reuested amount of fudig.
Certaiy, parcipating in a hearg requis an additional expenditu of legal
and exper fees as well as costs. We tok this into account when :we assessed the
overall reasonableness of CUC.s requeste fudig as discsed below.
S1d CU lllitiøn be den heus cue is the prman heelar oftbe :i?
We rejec Idaho Power.s suggestion that CUC should be denied
intervenor fudig because it is small commercial customers who will priariy
benefit from a conseation lighting program. If this were established as a
crteon then, to be consistent. we would have to disquaü every interenor
from obtaing fuding in any case where the intervenor somehow benefied
ORDER NO. 24941 - 7 -
..
by the Company's filig. The purose of granting interventionÌ8 to allow any
party, who has a direct and substantial interest in any procedi, the
opportty to advocate its own best interests. Whether a utility's fig benefits
a given inteenor is irlevant to that intervenor's right to intervene and. to
receive fuding.
Shd that po of CUe's mq ine pr. to th fiti,. of IdahoPows a;øca be ch?
We rejec Idaho Power's recommendation that inteenor expenses
incurred prior to the fiing of a utility's application be excluded from fudig.
Utility filigs are oftn the product of a cooperative effort between the utilty and
one or more interenor groups. This constructive procss may requi an
intervenor to incu signcant exnses prior to the utility's filing. To disalow
those expenses from ine1usion under intervenor fudig would degrade the value
of the work performed and undUly inbit an intervenor's wiingness to
coordiate and compromise with the utility pror to fiing. This, in tum, would
tend to make utilty figs more contentious. As a result, it woud become
necessary to litigate issues that might otherse have ben settled though
negotiation thereby incrasig the time and expense incued by the utility,
intervenors, and the Commssion. T1s is not sound policy. We find, therfore,
that expnses incued by CUC should not be sumary denied merely becaus
they were incued prior to the ñlg of Idaho Power's application.
We note that the purose of intervenor fudig is to assist in the
recovery of expenses incued in any "proceedig" before the Commssion; not to
fud the day-to-day operations of an intervenor. Therefore, to the exnt that
exenses incured by an intervenor do not ditly relate to and are not made
necssary by a utilty's fig, they are not eligible for recover though
inteenor fudig.
We believe that activities such as consting or meeting with a utilty
about matters of concer to an interenor, which are not related to a spec
fig, will generally be considered day-to-day operations, the costs of which are
not eligible for recover through intervenor fudig.
We now tum to the reasonableness of CUC's requested fuding.
Initially, we fid that CUC contributed materially to the decision rendered by
this Commssion in Order No. 24913.0UO clearly invested a grat deal of tie
and effort in coordinatin with Idaho Power in the design of this proam and in
ORDER NO. 24941 .8-
..
analyzi the Company's application. CUC's comments contribute signcantly
to our understandig of Idaho Power's Program and raised several legitiate
issues relating to the Program.
We fuher fid that, aside from the issue of reasonableness, CUC's
application for fudíng complies with all of the other reements of Idaho Code
§ 61-617A and Rule 16 of the Commssion's Rules of Practice and Procdure.
Regardig reasonableness, we believe CUC's requested fudíng to be
excessive. We fid that a portion of CUC's exenses appear to reflecday..to-day
operations as discssed above. We fid, therefore, that the sum of $4,000 faily
and reasonably compensate CUC for its involvement in this proedig. Idaho
Power is ordered to pay this amount to cue with 28 days of the servce date of
this Order and to defer this expnse for collection from ratepayers until the next
general rate proceeding.
o RD E R
IT IS THREFORE ORDERED that the application of CUC for
intervenor fudig is hereby granted. cue is awarded the sum of $4,000. Idaho
Power is dieced to pay this amount within 28 days of the servce date of this
Order and to defer this expense for collection until the next general rate
proceedg.
THS is A FINAL ORDER. Any person intereste in this Order (or
in issues fially decded by this Order) or in interlocutory Orders previously
issued in Case No. IPC-E-93-5 may petition for reconsderation withi
twenty-one (21) days of the serce date of this Order with regard to any matt
decded in this Order or in interloctory Orders previously issued in Case
No. IPC-E-93-5. Withi seven (7) days afr any person has petitioned for
reconsideration, any other person may cross-petition for reconsideration. See
Idaho Code § 61-626.
ORDER NO. 24941 .9.
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DONE by Order of the Idaho Public Utilities Commsion at Boise,
Idaho, this /5 á day of June 1993.
ATTST:~~~CO. . ISSlON SECRETARY
BP:VLD/O-2140
ORDER NO. 24941
~ J&k~
MAHA H. SMITH, PRESIDENT
~~DEAN .. MILLE. , COMMSSIONER
~~~~~~MISSIONER
-10 -
..Offce of the Sec
Serce Dat
Decber i 9. i 997
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN TH MATTR OF THE IDAHO POWER'S )
APPLICATION FOR AUTHORI TO ) CASE NO. IPC-E-96-26
IMLEMENT A PUBLIC PUROSES CHRGE )
TO FUN THE COMPANY'S PARTICIPATION )
IN TH NORTHEST ENERGY EFFCIENCY) ORDER NO. 27267ALLLlCE. )
)
BACKGROUN
On May 8, 1997, the Rate Faiess Group (RG) fied an Application for intervenor
fudi for its parcipation in ths proceedg. At the tie of the RFG's Application, however, the
case was sti pendig. Consequently, on August 14, 1997, the RFG filed a supplement to its
Application for intervenor fudig with adjustments to the amount of fees and costs claied. by the
RFG. We hereby grant the RFG's Petition for Intervenor Fundig and award the amount of $5,400
as explained below.
RFG's Application
In its initial Application, the RFG set fort a su of its proposed findigs or
recommendations made durig the course of ths proceedg which are as follows:
1. That Idaho Power's Application is a request for general rate relief;
2. Tht Idaho Power's Application is not with an excetion to the settement approved
in Order No. 26216 (IPC-E-95-11);
3. That Modied Procedure is not appropriate and is inequate in ths case;
4. That form heargs be held on Idaho Power Company's Application;
5. Tht Idao Power's Application is for the recvery of costs that are the subject matter
of a general rate case and tht the Company has faied to fie an Applicaion for a general rate
increase in compliance with the fig requiements of the Idao Code and Rue 31.01.01 of the
Commssion's Rules of Procedure, and;
6. That Idaho Power's Application violates the rate moratorium and Order No. 26216
of the Commssion in Case No. IPC-E-95-l 1 and should be dismissed.
ORDER NO. 27267 -1-
.e
The RFG goes on to contend that its costs are reasonable and tht they constitute a
signficant hardship for the RFG which is a volunta, uncorporated group consisti of 13
individual customers ofIdaho Power Company, most of whom are retired or of lied mea and
generally on a fied income.
The RFG fuer contends tht its recommendations dier from those proposed by the
Commssion Staf in ths proceedig considerig tht Staf did not objec to the use of modied
procedure; Sta did not contend tht the Company's Application constutes a genera rate cae;
Staf did not contend that the Application violates the rate moratorium; Sta did not oppose the
recovery of Idaho Power's public purposes costs from its ratepayers, and; Sta did not request a
formal hearg in th case.
The RFG contends that its involvement in ths proceedig raised isses of concern to
Idaho Power's gener body of rateayers considering that all ratepayers are benefciares of the rate
moratori imposed by the Commssion in Order No. 26216.
Finaly, the RFG sttes tht al 13 of its members are residential customers of Idaho
Power and that two members are also commercial customers and one member is also an irrgation
customer. The RFG requests intervenor fudig in the followig amount:
Legal Fees: (52.2 hrs. ~ $1501h.)
Legal Expenses:
Reproducton costs:
Maig costs:
Secretaral Expenses: (12 hrs. ~ $201h.)To~ .
$7,830.00
17.00
4.40
240,QQ
$8,091.40
Idaho Power's Response
On Augu 26, 1997, the Idao Power Company (Company) filed a Motion in OppOsition
to the RFG's Application for intervenor funding. First, Idaho Power contends that the RFG's inti
Application for intervenor fundig was prematue and tht its supplement was fied too late. Idaho
Power notes tht the RFG did not fie its supplement unti August 14, 1997. (The Commssion
issued its intial final Order No. 27045 on July 16, 1997). Rule 164 of the Commsion's Rues of
Procedure, the Company argues, clearly provides tht an intervenor requesting fuding must apply
no later than i 4 days afer the last deadline for submittg briefs, proposed Orders or sttements of
ORDER NO. 27267 -2-
..
position, whichever is last. Idaho Power fais to specif, however, what it believes tò be the date of
that 14 day deadline.
Second, Idaho Power objecs to the RFG's Application because it fais to provide a
"breadown" or "itemition" of the work pedormed by the RFG's attorney. Consequently, Idaho
Power argues, the Commssion canot mae a determtion tht the costs the intervenor proposes
to recover are reasonable in amount as requed by Rue 162( c) of the Commssion's Rues of
Procedure.
Thd, Idaho Power notes tht none of the si fidigs or recommendations identied by
the RFG in its Application were acaly accpted by the Commssion. Idaho Power argues tht the
RFG essentially advanced legal arguents which- were also advanced by other pares to the
proceedig and which were rejectéd by the Commssion.
Four Idao Power contds tht the RFG did not intend tht its 13 individual members
would be the rate group the RFG contends should be responsble for reibursement for the
intervenor fuding award. Pusuant to Rue 165.03 of the Commsion's Rues of Procedure,
"awards of intervenor fudig sha be chargeale to the class of customers represented by the
intervenors." Consequently, Idaho Power argues tht the request for intervenor fudig should be
denied on the grounds that the Application does not provide the inormtion requed for the
Commssion to rule, i.e., which customer clas should be responsible for reimbursement of the
intervenor fudig award.
Finy, Idao Power notes tht the award of intervenor fudig is a matter of discretion
for the Common. The Company proposes that if the Commssion does award interenor fudi
in ths case, the cost of the payment of the award should be deferred unti Idaho Power reports its
1997 earings for puroses of meetig the eargs test. If Idaho Power ha eared in excess of
1 1 . 7 5%, then the Company would recommend tht it be permtted to recover this award with
appropriate interest by deductng ths amount from any refud due the Company's customers. It
on the other had, the Company's eas are less th 11.75%, then Idaho Power proposes to
contie deferrg ths amount unti some monies were collected from a public puroses charge, or
if not, in the next general rate proceedig.
ORDER NO. 27267 -3-
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FIDINGS
Rule 162 of the Commssion's Rules of Procedure (IAPA 31.01.01), provides:
An Application for intervenor fudin must conta the followi:
01. Itemized List of Expenses An itemied list of exenses tht the
inrvenor reqes to rever broken down into categories such as legal fees,
witness fees, or reproducton fees.
02. Statemnt of Proposed Findinis, A statement of the intervenor's
proposed fiding or recommendation tht the intervenor wishes the
Commssion to adopt.
03. Statmen Showjng Cost, A statement showig tht the costs tht the
intervenor proposes to recver are reasonable in amount.
04. Explanation of Cost Stateent A sttement exlai why the costs
described in subsection 162.03 constitute a signcant ficial hadshp for
the intervenor.
05. Stateme of Differce A statement showig how the intervenor's
proposed fidig or recommendation descrbed in subparagraph b difers
materialy from the testiony and exbits of the Commsion Staf
06. Statement of Recommenation A statement showig how the
intervenor's recommendation or position addressed issues of concern to the
general body of utity users or consmers.
07. Statemen Showii Class of Custmer A statement showig the class
of customer on whose behal the intervenor appeared.
Regardi the tie in which an Application must be fied, Rule 164 of the Commsion's
Rules of Procedure states:
Unless otherwse provided by order, an intervenor requestig intervenor
fudi must apply no later th foureen (14) days afer the la evidentiar
hearg in a proceedig or the deadle for submitt briefs, proposed
orders, or stteients of position, whichever is las. Motions in opposition to
intervenor fuding must be fied with foureen (14) days afer the request
for intervenor fuding is fied.
Finaly, the Commssion's decision wheter to award intervenor fudig and in what
amount is controlled by Rule 165 of the Commsion's Rues of Procedure which provides:
ORDER NO. 27267 -4-
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01. Order Awarina Inteor EundIl The Commssion may by order
award intervenor fuding pursuant to secton 61-617 A, Idaho Code. The
tota award for all intervenig pares combined shal not exceed twenty-fie
thousand dollars ($25,000) in any proceeg. The Commssion must fid
that:
a. the intervenor's presentation materialy contrbuted to the
Commssion's decision,
b. the costs of intervention awarded are reasonable in amount,
c. the costs of intervention were a signcant hadship for the
intervenors,
d. the recommendations of the inervenor diered materaly from
the testiony and exhbits of the Commssion Sta and
e. the inteenor addressed isses of concern to the general body of
users or consers.
02. Paymen of Aws Awards of intervenor fundig must be paid with
twenty-eight (28) days of the order of the Commssion awardi intervenor
fuding, uness the order of the Commssion is stayed.
03. Recov of Aws of Innor EunIl Awards of intervenor
fudi paid by electrc, gas, water or telephone utilities wi be an alowable
business expense in the pendig rate cae or, if the proceedig is not a rate
case, in the utiity's next rate case. Awards of intervenor fudig shal be
chargeable to the class of customers represented by the intervenors.
First we:fd that the RFG's Application was tiely pursuant to our rues. Rue .164 of
the Commssion's Ru1es of Procedure states tht an intervenor requestig fudi must apply "no
later" than 14 days afer the last evidentiar heag or the deadle for submitt briefs.
Consequently, the RFG's initial application fied May 8, 1997 (more th two month before the
fi Order was issued), albeit fied rather early, was tiely. Because ths case was hadled pursuant
to modifed procedue and because it was heard on reconsideration, it was never entiely clear at
what point it had been fiy submitted to the Commssion for review. Noneteles, the REG's
initial application was timely fied. Moreover, when the Commssion granted the ICIP's Petition
for Reconsideration in Order No.27124, it established a fig schedule for the pares. The last
deadlie for filig comments in tht schedule was October 1, 1997. The REG's supplement to its
intial application was fied on August 14, 1997.
ORDER NO. 27267 -5-
...
Second, contrar to Idaho Power's suggestion, the Commsion's Rues of Procedure
contai no requiement tht the legal costs of an intervenor be specicaly itemied accordig to
specific attorney tasks. This, in fact, has never been reqred by the Commssion.
Thid, the Commssion's Ru1es of Procedure do not reque that the Commssion
specifcaly adopt the position of an intervenor in order for tht intervenor to qual for fudig as
Idaho Power suggests. The Rues simply states tht the intervenor's parcipation in the case must
have materially contrbuted to the Commsion's decision.
Fourth, Idaho Power's contention tht the RFG is not entitled to interenor fudi
sily becse, according to Idaho Power, the 13 individual members of the RFG did not intend to
rebur the Company for a fudig award is entiely without merit. Historicaly, the Commssion
ha oft awaded fu to inteenor groups that did not represent an entire class. Rue 7 i of the
Commssion's Rues of Procedure states that anyone who clai "a diec and substatial interest
in the proceedng" may petition for intervention. Ru1e 72 states that Pettion for Intervention must
"set fort the name and address of the pettioner and cleary and concisely state the diect and
substanti intees of the petoner in the proceedig." Nothig in the Commssion's Rues reques
that an intervenor must represent a specifc customer class or a parcu porton of a class. The
Commion found tht the RFG qualed as an "inteenot' when it issued Order NO.2695 i on May
29, 1997 grantig the RFG's intervention.
Finaly, we fid tht the RFG contrbuted materialy to our decision in ths case. Whe
we did not u1timately agee with al of the proposals made by the RFG in ths cae, tht is not a
prereqsite to an award of interenr fudig, as noted above. Moreover, it does not mean that the
RFG's parcipation did not contribute materaly to our decision in ths case. It is the policy of ths
Common to offer reaonable opportty for a varet of interests to present thei positions before
thé Commssion. In ths case, the RFG represents priy retied residential customers. That is
a group who rarely, if ever, receives diect representation in proceedigs before ths Commsson.
Consequently, the RFG offered a perspectve unque from al others presented in ths proceedg
and, to that exent, contrbuted materialy to our fi decison.
ORDER NO. 27267 -6-
..
Based upon the foregoing, we hereby award interenor fudig to the RFG. We fid,
however, tht the amount requested by the RFG is excessive. Based upon the natue of ths
proceedng and the RFG's parcipation, we fid tht an award of $5,400 is reaonable.
Finaly, we believe tht th fudi award should be recovered from al customer classes.
We wi grant Idaho Power's reques to recover the award though a reducton to any refud its
customers may receive if the Company's 1997 eags are above 11.75%. This amount may be
deferred unti it can be collected from any public puroses charged thi Commssion ultitely
approves or in the Company's next general rate proceedig.
ORDER
IT IS HEREBY ORDERED tht the RFG is awarded interenor fudig in the amount
of $5400. Idaho Power is dieced to pay th amoun wi twenty-eight (28) days pursuant to Rue
165.02 of the Commssion's Rues of Procedure, IDAPA 31.01.01.
TilS IS A FINAL ORDER Any person interested in ths Order ( or in issues fiy
decided by ths Order) or in interlocutory Orders previously issued in th Case No. IPC-E-96-26
may pettion for reconsideration withi twent-one (21) days of the servce date of ths Order with
regard to any matter decided in ths Order or in interlocutory Orders prevously issued in ths Case
No. IPC-E-96-26. With seven (7) days afer any person has petitioned for reconsideration, any
other person may cross-petition for reconsderation. See Idaho Code § 61-626.
ORDER NO. 27267 -7-
..
DONE by Order of the Idaho Public Utities Commssion at Boise, Idaho ths /" (3 ~
day of December 1997.
~~~EN
~1L~
R. Lš, COMMSSIONER
~J~~.
MASHA H. SMITH COMMSSIONER
ATTEST:
~/ZJ2~~,Myr 1. Walters
Commssion Secreta
cm\O:ip626.bp5
ORDER NO. 27267 -8-