From: Tod Landis Date: April 26, 2006 2:36:09 PM PDT To: gfb@cpuc.ca.gov Subject: Intervenor Compensation for Felton FLOW's Attorneys (A04-08-012) Commissioner Geoffrey F. Brown California Public Utilities Commission 505 Van Ness Avenue San Francisco, CA 94102 (via email) Dear Commissioner Brown: Administrative Law Judge McVicar's proposed decision denying Felton FLOW intervenor compensation for participating in Application 04-08-012 is unfair to FLOW and its attorneys. Further, if it is allowed to stand, it could have a chilling effect on participation by other community groups. By way of background... Working with Felton FLOW's Legal Committee, then co-chaired by Jim Mosher and Rod Wilkerson, I drafted FLOW's Protest and Petition to Intervene. I also appeared on FLOW's behalf at the Pre-Hearing Conference on September 20, 2004 and later presented testimony. We soon saw that having an attorney present with us when FLOW witnesses testified and during settlement negotiations would be crucial. It is important to understand that Felton FLOW could not depend on representation by Santa Cruz County or the ORA (now DRA) because both had agreed to a settlement opposed by most residents of Felton in the prior rate case. You may recall that Felton residents, including some FLOW members, spoke in opposition to that settlement at a commission meeting during the public comments period. We later learned that comments the public makes at commission meetings or public hearings carry much less weight than testimony introduced under oath and subject to cross examination. This was consistent with what we observed at the commission meeting, where one speaker noticed a CPUC Commissioner taking a nap, and it was one of the main reasons we decided to intervene. The FLOW witnesses who testified and submitted to cross examination by hostile CalAm attorneys would have been reluctant to do so without legal help. Giving oral testimony under oath was downright intimidating--no one wanted to look foolish in public. Although supportive, neither the county nor the ORA had resources to provide the level of advice and support we needed. Similarly, although the Public Advisor's office was very helpful, especially with FLOW's preparation for the PHC early on, it could not provide an attorney to support witnesses while they testified. FLOW was lucky to find a qualified firm prepared to represent it and also willing to accept compensation through the Intervenor Compensation program. In the future, following this decision, it may be more difficult for other groups to find such attorneys. Judge McVicar is correct when he writes: "In contrast to FLOWÕs primary focus on service quality and prospective public acquisition (both issues rejected as considerations in the decision), DRA developed a record more relevant to our decision" But how could FLOW know that its issues would be rejected, given that this judge had earlier accepted a protest based on them and announced that they did merit consideration? Service problems were relevant, because they were at least partly due to the separation of managers from the people working for them. FLOW witnesses described multiple water line breaks caused by poorly supervised CalAm work crews, one that endangered public health. Also sloppy CalAm work on roads that created hazards, one that nearly broke a horse's leg. And public inconvenience when a street was closed without notice. Bacterial contamination of water. Delayed, unhelpful telephone customer service. An annoying and costly company disinformation campaign, including a company executive's use of automated phone messages to mislead the public. Legal maneuvering by California American Water Company made it difficult for us to get these reports on the record, which was odd, because most had already been reported by local newspapers. Large parts of my testimony were stricken as hearsay, but later confirmed by first-hand accounts provided by other FLOW witnesses and, ironically, by a reluctant CalAm company witness under cross examination by FLOW's attorney. FLOW's attorney was also able to extract the story of a chlorine gas leak in Felton. We learned that it took that manager about an hour to get to the scene of the accident from his office in Monterey, and poor supervision of a new employee had been a factor. FLOW's attorney also questioned the CalAm attorney concerning a 50,000 gallon tank leak in Monterey that triggered a landslide into the Carmel River. The manager's evasiveness is on the record and worth noting: When asked if there had been a tank leak in Monterey, he answered "No". When then asked if there he had been an "overfill" of the tank, triggering a landslide, he answered "Yes". Were it not for the obvious environmental damage the landslide must have caused, this would have been funny. Events outside the CPUC proved the legitimacy of FLOW's protest based on service concerns: Under the direction of its Monterey-based managers, CalAm undertook a main replacement in Felton on Highway 9. The company did the work during Felton's rainy season, when we typically receive sixty inches of rain in a year. It is hard to believe anyone familiar with the area would have done so. The result was a mess, as FLOW witnesses have described in the new rate case. Road signs we saw near the construction site told the story: First there was a sign saying that California American Water was improving the water main. As problems surfaced, that was replaced with one more anonymous announcing "Utility Work", and finally, as things got really bad: "Bumps Ahead". For all these reasons, FLOW should be granted intervenor compensation, and the CPUC should rethink the way it handles legitimate customer complaints. Tod Landis 355 Brimblecom Road Boulder Creek CA 95006 831 338 6967 cc: Commissioner Michael R. Peevey, President Commissioner Geoffrey F. Brown Commissioner Dian M. Grueneich Commissioner John Bohn Commissioner Rachelle Chong