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?ALJ Division/nd3Date of Issuance 1/15/2021Decision 21-01-016 January 14, 2021BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIAOrder Instituting Investigation and Order to Show Cause on the Commission's Own Motion into the Operations and Practices of Pacific Gas and Electric Company with Respect to Locate and Mark Practices and Related Matters.Investigation 1812007DECISION GRANTING COMPENSATION TO THE UTILITY REFORM NETWORK FOR SUBSTANTIAL CONTRIBUTION TO DECISION 2002036Intervenor: The Utility Reform Network For contribution to Decision (D.) 2002036Claimed: $124,370.33Awarded: $124,377.48Assigned Commissioner: Clifford RechtschaffenAssigned ALJ: ALJ DivisionPART I: PROCEDURAL ISSUESA.Brief description of Decision: D.2002036 adopts, with modification, the Settlement Agreement (SA) among Pacific Gas and Electric (PG&E), Coalition of California Utility Employees (CUE), and the Safety Enforcement Division (SED) adopting penalties related to PG&E’s Locate and Mark (L&M) Program. The Decision increases the total penalties from $65?million to $110?million, including a $44?million payment to the state’s General Fund and a budget of $66?million for projects to be funded by PG&E shareholders. Shareholder funded projects, labeled System Enhancement Initiatives by the Settlement, include measures intended to address the Locate and Mark program’s problems. To the extent that funds for System Enhancement Initiatives remain after four years, the balance will be paid to the General Fund.Intervenor must satisfy intervenor compensation requirements set forth in Pub.?Util. Code §§?18011812:IntervenorCPUC VerificationTimely filing of notice of intent to claim compensation (NOI) (§?1804(a)):1.Date of Prehearing Conference:April 4, 2019Verified2.Other specified date for NOI:n/a3.Date NOI filed:May 3, 2019Verified4.Was the NOI timely filed?YesShowing of eligible customer status (§?1802(b) or eligible local government entity status (§§?1802(d), 1802.4):5.Based on ALJ ruling issued in proceeding number:R.1901011Verified6.Date of ALJ ruling:July 26, 2019 (see?Comment #1)Verified7.Based on another CPUC determination (specify):8.Has the Intervenor demonstrated customer status or eligible government entity status?YesShowing of “significant financial hardship” (§?1802(h) or §?1803.1(b)):9.Based on ALJ ruling issued in proceeding number:R.1901011Verified10.Date of ALJ ruling:July 26, 2019 (see?Comment #1)Verified11.Based on another CPUC determination (specify):12.Has the Intervenor demonstrated significant financial hardship?YesTimely request for compensation (§?1804(c)):13.Identify Final Decision:D.2002036Verified14.Date of issuance of Final Order or Decision: February 20, 2020Verified15.File date of compensation request:April 17, 2020Verified16.Was the request for compensation timely?YesAdditional Comments on Part I: #Intervenor’s Comment(s)CPUC Discussion1This proceeding was filed more than one year after the ALJ Ruling finding significant financial hardship was issued in I.1508019 on November 8, 2017, but before the ALJ Ruling finding significant financial hardship, issued in R.1812006 on April 30, 2019. Thus, the ALJ Ruling issued in R.1901011 clarified that it applied “retroactively” to other proceedings in which no Ruling on financial hardship had been issued. (See ALJ Ruling, R.1901011, July 26, 2019, pp. 78). NotedPART II: SUBSTANTIAL CONTRIBUTIONDid the Intervenor substantially contribute to the final decision (see?§?1802(j), §?1803(a), 1803.1(a) and D.9804059): Intervenor’s Claimed Contribution(s)Specific References to Intervenor’s Claimed Contribution(s)CPUC Discussion1. PG&E, SED and CUE argued that the SA was reasonable in light of the record and in the public interest. While the POD adopted portions of the SA and amended others, as described above, it found that, as filed, the Settlement was not reasonable in light of the Record or in the public interest. The Commission relied on the issues highlighted by TURN and other intervenors for its conclusion that the proposed settlement was not in the public interest. TURN identified the potential that ratepayers already funded the hiring of the additional L&M employees required by the proposed settlement through the GRC. Settling parties failed to demonstrate the incrementality of the proposed hires and puts into question whether PG&E shareholders will pay for the initiatives required by the settlement. The POD ultimately agreed that it was unclear if the staffing requirements were incremental. The POD directs that any excess shareholder funds be paid to the General Fund.TURN highlighted the litany of failures committed by PG&E management. PG&E management did not recognize the L&M problems and did not accept responsibility for management’s role in the failure to remedy the L&M problems in a timely manner. The POD identifies management failures and the POD’s findings of fact address PG&E’s management failures to address the L&M problems.TURN argued that the penalty was insufficient to account for the management failures and recommended that the penalty amount be increased to penalize the utility for these failures. The POD increased the proposed penalty to account for the “number, nature and duration of PG&E’s” ments of TURN Opposing the Proposed Settlement at 815D.2002036 at 26; at 33, CoL?3, CoL?ments of TURN Opposing the Proposed Settlement at 46D.2002036 at 1617, at 34, OP 4.TURN01 at 14:115:3; 15:1618; 17:24Comments of TURN Opposing the Proposed Settlement at 1115D.2002036 at 1819; at 21; 32, FOF 4, FOF 5TURN01 at 2:112:13TURN01 at 17:24Comments of TURN Opposing the Proposed Settlement at 1921D. 2002036 at 30; at 33 FOF 8VerifiedVerifiedVerifiedVerifiedVerifiedVerifiedVerifiedVerifiedVerified2. The Commission ultimately adopted the Amended Settlement. The Amended Settlement adopted the terms of the Settlement with modifications to protect ratepayers and better reflect the gravity of the violations. While TURN did not sign on to the Proposed Settlement, TURN was an active participant in the Settlement discussions for a period of time. Before leaving Settlement negotiations, TURN shared with the settling parties its position on the stipulations of fact, proposed financial penalty and system enhancement initiatives. While Settlement discussions are protected by the Rule?12.6 Confidentiality Rules, TURN’s inputs during its participation in these Settlement discussions are reflected in the Proposed Settlement. While TURN does not believe the settlement sufficiently addresses all management issues or offers an adequate penalty for management violations, the settlement acknowledges limited violations related to PG&E management.D.2002036 at 13; at 29; at 33, CoL?6, CoL?pare TURN01 at 10:3136 with Proposed Settlement at 11.VerifiedVerifiedDuplication of Effort (§?1801.3(f) and §?1802.5):Intervenor’s AssertionCPUCDiscussiona.Was the Public Advocate’s Office of the Public Utilities Commission (Cal Advocates) a party to the proceeding?YesVerifiedb.Were there other parties to the proceeding with positions similar to yours? YesVerifiedc.If so, provide name of other parties: TURN’s position overlapped to some extent with the positions of the Public Advocates Office (Cal Advocates), Office of Safety Advocate (OSA), City and County of San Francisco (CCSF) and the Safety and Enforcement Division (SED) in this proceeding. Verifiedd.Intervenor’s claim of nonduplication: TURN coordinated closely with the other intervenors throughout this proceeding. TURN participated in the Settlement discussions with PG&E and SED, but ultimately elected to drop out of these discussions and is not a signatory to the SA. While the TURN and SED positions on the proposed Settlement ultimately diverged, TURN coordinated with SED, Cal Advocates, OSA and CCSF during Settlement negotiations. After leaving Settlement discussions, TURN continued to coordinate with the other, nonsettling, active parties. While TURN and Cal Advocates had a similar position on many issues, each offered distinct analysis and recommendations. In many cases, the arguments proposed by Cal Advocates and TURN complemented one another. TURN, in particular, focused its efforts on the failures of management reflected in the L&M record and the insufficiency of the SA for acknowledging and assigning penalties for these failures. TURN submits that its compensation in this proceeding should not be reduced for duplication. Rather, the Commission should find that there was no undue duplication, as any duplication served to materially supplement, complement or contribute to the showing of another party and, therefore, is fully compensable under PU Code Section 1802.5. NotedPART III: REASONABLENESS OF REQUESTED COMPENSATIONGeneral Claim of Reasonableness (§?1801 and §?1806):CPUC Discussiona.Intervenor’s claim of cost reasonableness: TURN’s request for intervenor compensation seeks an award of approximately $124,370.00 as the reasonable cost of our participation in this investigation. These costs are reasonable in light of the issues that TURN addressed and the benefits to PG&E customers from improved operational and management practices at PG&E, which the penalties are intended to promote. TURN’s primary contributions in this proceeding were to highlight the management failures that lead to the L&M problems and identify the potential for ratepayers to fund the system enhancement initiatives. The POD finds that the penalty amounts calculated by TURN and Cal Advocates are both “more appropriate…than the methodology used by the settling parties.” While TURN cannot take sole credit for the increases in the penalty to be paid to the general fund, TURN’s arguments regarding management failures contributed to the Commission’s finding that the proposed settlement was not in the public interest and its required modifications. The Commission findings that management should have known and should have acted sooner to remedy the L&M problems puts utilities on notice that management failures will not be tolerated. TURN hopes that this impact will inspire improvements in utility management practices at PG&E and elsewhere, to the benefit of ratepayers (and the public).The System Enahancement Initiatives are activities required to remedy the problems with the L&M program; the Settling parties identified the required system enhancement initiatives and the estimated budget for each. TURN and others highlighted potential concerns with the budget for and accounting of these system initiatives. Specifically, TURN highlighted the potential that costs of increased staffing levels may already have been requested from ratepayers in the GRC. While the Commission did not adopt TURN’s proposal that any settlement funds already spent should be directed to ratepayers, it agreed that there was uncertainty whether the utility had already hired the proposed L&M employees. The POD language increases the budget for the initiatives and clarifies that shareholders must bear the full financial weight of the penalty. Any funds remaining for these measures at the end of four years must be paid to the General Fund. TURN’s contributions in this area ensure that ratepayers will not bear any costs associated with the system enhancement initiatives required by the Commission as part of the package of penatlies for PG&E’s conduct.For these reasons, the Commission should find that TURN’s efforts have been productive and reasonable.Notedb.Reasonableness of hours claimed: TURN devoted approximately 267 attorney hours to this proceeding. Many of these hours reflect participation in settlement discussions. When it became clear TURN was unable to reach an acceptable settlement with other parties, TURN left settlement negotiations and focused its efforts on building a record related to management’s role in the L&M problems. In addition to building the record on PG&E’s management failures, TURN developed the record on PG&E’s previous requests for L&M staffing additions. TURN Legal Director Thomas Long was originally staffed to this proceeding, with Staff Attorney Katy Morsony joining the case in mid2019 after returning from leave. Limited hours are included to educate Ms.?Morsony on the status of the case. Rather than have both attorneys attend settlement meetings, either Mr.?Long or Ms.?Morsony attended each meeting, which necessitated a limited number of hours for communication and coordination between the two attorneys, which are included in this request. These hours are limited, however, and TURN has chosen not to seek compensation for other hours on this basis.TURN managed costs in this case by presenting testimony by Mr.?Long rather than an outside consultant. Mr.?Long has practiced before, or been employed by the CPUC for over 30 years and has served as the attorney, and often a witness, in several commission proceedings related to PG&E and safety. In aid of developing TURN’s testimony and proposed remedies in this proceeding, this request also includes hours related to discussing proposals for potential improvements to PG&E management with TURN Attorneys Bob Finkelstein and David Cheng. Mr.?Finkelstein has over 30 years experience advocating in relation to investor owned utility issues before the CPUC and Mr.?Cheng offered insights on utility management given his eight years of experience working at an investor owned utility. TURN also includes time devoted by Staff Attorney Hayley Goodson to this proceeding. Ms.?Goodson worked with Ms.?Morsony during the preparation of TURN’s response to the motion for approval of the proposed settlement agreement as Mr.?Long was temporarily unavailable. Ms.?Goodson has experience representing TURN in enforcement proceedings and was readily able to substitute for Mr.?Long during this time period. TURN submits that the Commission should find the hours requested here to be reasonable under the circumstances, and that TURN’s showing supports that conclusion. However, should the Commission believe that more information is needed or that a different approach to discussing the reasonableness of the requested hours is warranted here, TURN requests the opportunity to supplement this section of the request. Notedc.Allocation of hours by issue: TURN has allocated time entires in this case by issue area or activity. In. this proceeding TURN has used the following activity codes:CodeDescriptionAllocationHoursGPThe work in this category includes activities related to general participation in this proceeding, such as reviewing rulings or attending the PHC.11%28.75EHThe work in this category is related to preparing for and participating in evidentiary hearings.7%18.00MgmtWork in this category includes developing the record on the management role in and failures related to the L&M problems. Work in this category also included the development of TURN’s position and recommendations on management. 26%70.50StlmtWork in this category is related to attending settlement discussions as well as coordinating with other parties as related to settlement discussions. 32%86Stlmt RemTime in this category was spent reviewing and responding to the proposed settlement and the POD modifcations of the settlement.24%63.50Total100%266.75If the Commission believes that a different approach to issuespecific allocation is warranted here, TURN requests the opportunity to supplement this section of the request.NotedSpecific Claim:*ClaimedCPUC AwardATTORNEY, EXPERT, AND ADVOCATE FEESItemYearHoursRate $Basis for Rate*Total $HoursRate $Total $David Cheng, TURN Staff Attorney20190.75$350.00D.1911009$262.500.75$350.00$262.50Hayley Goodson, TURN Staff Attorney20180.50$435.00D.1804020$217.500.5$435.00$217.50Hayley Goodson, TURN Staff Attorney201913.75$445.00D.1911009$6,118.7513.75$445.00$6,118.75Katy Morsony, TURN Staff Attorney2019149.50$350.00See Comment?#1$52,325.00149.50$350.00[1]$52,325.00Katy Morsony, TURN Staff Attorney20201.75$375.00See Comment?#1$656.251.75$375.00[2]$656.25Robert Finkelstein, TURN General Counsel20190.50$540.00D.1911015$270.000.50$540.00$270.00Thomas J. Long, TURN Legal Director20180.25$600.00D.1805036$150.000.25$600.00$150.00Thomas J. Long, TURN Legal Director201998.25$615.00D.1911015$60,423.7598.25$615.00$60,423.75Thomas J. Long, TURN Legal Director20201.50$625.00See Comment?#2$937.501.50$630.00 [3]$945.00Subtotal: $121,361.25Subtotal: $121,368.75INTERVENOR COMPENSATION CLAIM PREPARATION **ItemYearHoursRate $Basis for Rate*Total $HoursRate $Total $Thomas J. Long, TURN Legal Director20190.50$307.50Half of 2019 Rate (D.1911015)$153.750.50$307.50$153.75Katy Morsony, TURN Attorney202014.00$187.50Half of 2020 Requested Rate$2,625.0014$187.50$2,625.00Subtotal: $2,778.75Subtotal: $2,778.75COSTS#ItemDetailAmountAmount1.PhotocopyingCopying relating to providing pleadings, testimony, and exhibits for ALJ Offices and evidentiary hearings regarding proceeding I.1812007.$84.60$84.602.Lexis Nexis Legal ResearchComputerized research costs associated with preparation for TURN’s strategy regarding proceeding I.1812007.$137.83$137.48 [4]3.PostagePostage related expenses for mailing pleadings and testimony to ALJ offices in proceeding I.1812007.$7.90$7.90Subtotal: $230.33Subtotal: $229.98TOTAL REQUEST: $124,370.33 TOTAL AWARD: $124,377.48 *We remind all intervenors that Commission staff may audit the records and books of the intervenors to the extent necessary to verify the basis for the award (§?1804(d)). Intervenors must make and retain adequate accounting and other documentation to support all claims for intervenor compensation. Intervenor’s records should identify specific issues for which it seeks compensation, the actual time spent by each employee or consultant, the applicable hourly rates, fees paid to consultants and any other costs for which compensation was claimed. The records pertaining to an award of compensation shall be retained for at least three years from the date of the final decision making the award. **Travel and Reasonable Claim preparation time are typically compensated at ? of preparer’s normal hourly rate ATTORNEY INFORMATIONAttorneyDate Admitted to CA BARMember NumberActions Affecting Eligibility (Yes/No?)If “Yes”, attach explanationDavid ChengJune 2015303794NoKaty MorsonyDecember 2011281538NoHayley GoodsonDecember 2003228535NoRobert FinkelsteinJanuary 1990146391NoThomas LongDecember 1986124776NoAttachments Documenting Specific Claim and Comments on Part III:Attachmentor Comment #Description/CommentAttachment 1Certificate of ServiceAttachment 2Timesheets for TURN’s AttorneysAttachment 3TURN Direct Expenses Associated with D.2002036Attachment 4TURN Hours Allocated by IssueComment 12019 and 2020 Hourly Rates for Katy Morsony2019TURN requests an hourly rate of $350 for staff attorney Katy Morsony in 2019. This is the same rate requested by TURN in its July 16, 2019 Request in R.1810007 (Wildfire Mitigation Plans). As TURN explained there, the Commission approved an hourly rate of $330 for Ms.?Morsony’s work in 2018 in D.1909050. The 2019 rate TURN requests is the result of applying Res. ALJ357’s 2.35% COLA to Ms.?Morsony’s 2018 rate, plus the second 5% step increase in the 57 year experience tier, with the result rounded down to $350, which is the top of the range for that tier.2020TURN requests an hourly rate in 2020 of $375 for staff attorney Katy Morsony. This increase reflects Ms.?Morsony’s move from the 57 year experience tier to the 812 year experience tier. Ms.?Morsony was admitted to the California bar in December 2011 and has 8 years of experience practicing before the Commission.The 2020 rate TURN requests for Ms.?Morsony is 7% higher than the rate of $350 requested for Ms.?Morsony’s work in 2019, when she was in the 57 year experience tier. The Commission has previously authorized comparable increases of 78% for movement to a higher experience tier. See, e.g., D.1703022, issued in A.1411007 et al. (increasing Hayley Goodson’s rate by 7% for her move from the 812 year experience tier into the 13+ year tier); D.1207019, issued in A.1007017 (increasing Matthew Freedman’s rate by 7.7% for his move from the 812 year experience tier into the 13+ year tier). TURN notes that the requested rate is in the lower half of the range adopted in Resolution ALJ357 for attorneys in the 812 year experience tier for 2019 ($350 $410). TURN provides the range of rates for 2019 because the Commission has yet to adopt a COLA for ment 22020 Hourly Rate for Thomas LongThe Commission has yet to adopt a 2020 COLA for intervenor hourly rates. Pending the Commission’s COLA determination, TURN has used a placeholder COLA of 2% to calculate a 2020 rate for TURN Legal Director Thomas Long. Applying a 2% COLA to Mr.?Long’s authorized 2019 hourly rate of $615 yields a 2020 hourly rate of $625 when rounded to the nearest $5.If the Commission adopts a COLA that supports a different hourly rate for Mr.?Long, TURN requests that the Commission adjusts the requested 2020 hourly rate accordingly.CPUC Comments, Disallowances, and Adjustments ItemReason[1]CPUC accepts the rate based on the 2019 COLA Resolution ALJ357 (2.35%?COLA).[2]CPUC accepts the rate based on the 2019 COLA Resolution ALJ357 812 years experience tier for an attorney.[3]CPUC accepts the rate based on the 2020 COLA Resolution ALJ387 (2.55%?COLA).[4]Adjustment based on receipt provided.PART IV: OPPOSITIONS AND COMMENTSWithin 30 days after service of this Claim, Commission Staff or any other party may file a response to the Claim (see?§?1804(c))A.Opposition: Did any party oppose the Claim?ment Period: Was the 30day comment period waived (see?Rule?14.6(c)(6))?YesFINDINGS OF FACTThe Utility Reform Network has made a substantial contribution to D.2002036.The requested hourly rates for The Utility Reform Network’s representatives, as adjusted herein, are comparable to market rates paid to experts and advocates having comparable training and experience and offering similar services.The claimed costs and expenses, as adjusted herein, are reasonable and commensurate with the work performed. The total of reasonable compensation is $124,377.48.CONCLUSION OF LAWThe Claim, with any adjustment set forth above, satisfies all requirements of Pub.?Util. Code §§?18011812.ORDERThe Utility Reform Network shall be awarded $124,377.48.Within 30 days of the effective date of this decision, Pacific Gas and Electric Company shall pay The Utility Reform Network (TURN) the total award. Payment of the award shall include compound interest at the rate earned on prime, threemonth nonfinancial commercial paper as reported in Federal Reserve Statistical Release H.15, beginning July?1,?2020, the 75th day after the filing of TURN’s request, and continuing until full payment is made.The comment period for today’s decision is waived.This decision is effective today.Dated January 14, 2021, at San Francisco, California.MARYBEL BATJERPresidentMARTHA GUZMAN ACEVESCLIFFORD RECHTSCHAFFENGENEVIEVE SHIROMACommissionersAPPENDIXCompensation Decision Summary InformationCompensation Decision:D2101016Modifies Decision? NoContribution Decision(s):D2002036Proceeding(s):I1812007Author:ALJ DivisionPayer(s):Pacific Gas and Electric CompanyIntervenor InformationIntervenorDate Claim FiledAmount RequestedAmount AwardedMultiplier?Reason Change/DisallowanceThe Utility Reform NetworkApril 17, 2020$124,370.33$124,377.48N/ASee CPUC Comments, Disallowances, and Adjustments above. Hourly Fee InformationFirst NameLast NameAttorney, Expert, or AdvocateHourly Fee RequestedYear Hourly Fee RequestedHourly Fee AdoptedDavidChengAttorney$3502019$350HayleyGoodsonAttorney$4352018$435HayleyGoodsonAttorney$4452019$445KatyMorsonyAttorney$3502019$350KatyMorsonyAttorney$3752020$375RobertFinkelsteinAttorney$5402019$540ThomasLongAttorney$6002018$600ThomasLongAttorney$6152019$615Thomas LongAttorney$6252020$630(END OF APPENDIX) ................
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