20210305Opposition to City of Boise Motion.pdf

Michael C. Creamer (lSB No.4030)
Preston N. Carter (lSB No. 8462)
Givens Pursley LLP
601 W. Bannock St.
Boise, lD 83702
Telephone: [phone]
Facsimile: (208) 388-1 300
m cc@qivenspu rslev. com
p resto nca rter@o iven spu rslev. com
Attorneys for SUEZ Water ldaho lnc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF SUEZ WATER IDAHO INC. FOR
AUTHOR!ry TO INCREASE ITS RATES
AND CHARGES FOR WATER SERVICE
IN THE STATE OF IDAHO
Case No. SUZ-W-?O-O2
Surz WnreR lDAHo, lNc.'s
Opposmoru To CtrY oF BotsE's
Morolt FoR ExrENStoN oF TIME
suEz water ldaho !nc., ("sUEZ water," or "company"), files this in opposition to
the City of Boise's Motion for Extension of Time ('Motion").
!Nrnooucnot
By statute, the Idaho Public Utilities Commission ("Commission") may suspend
the effective date of proposed rate changes for thirty days plus five months. ldaho Code
S 61-622(4). The Commission is authorized to extend the effective date for an additional
sixty days upon a showing of "good cause." /d. But under no circumstance can the
effective date be extended further.
This statute exists for good reason. Under traditional ratemaking practices, as
historically applied by this Commission, a regulated utility is entitled to timely recover its
operating costs and a fair rate of retum on its investment. SUEZ will be increasingly
prejudiced to the extent a decision determining its current revenue requirement and fair
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return is delayed in this proceeding. The statutory deadlines recognize the importance
of expeditiously processing rate cases.
lntervenors request that the Commission delay the currently proposed schedule
for forty-five days. This would place the hearing during the first week of June, Ieaving
the Commission with a hard, unmovable deadline to issue a decision just three weeks
after the hearing. And using the sixty-day "good cause" period at this early stage will
preclude extensions for truly unforeseen disruption or other events-such as the
Commission's workload, illness or unavailability of witness, or technological disruption-
of the sort that would typically provide good cause to extend the statutory deadline.
To support their request, lntervenors point to a number of factors: the number of
lntervenors; the relative inexperience of two intervenors with the Commission's
procedures; the number of issues in the case; the amount of discovery exchanged; and
the rapid pace of settlement negotiations. Motions for Extension of Time ("Motion") at 3-
5. SUEZ respectfully submits that the lntervenors have done nothing more than
describe a general rate case. !t is neither justified nor prudent to use forty-five of the
available sixty days for "good cause" at this point in the case. Accordingly, SUEZ
respectfully requests that the Motion be denied.
To be clear, while SUEZ opposes the currently requested extension, it does not
necessarily oppose any and all extensions of time. lf good cause arises in the future,
SUEZ would not oppose extending the statutory deadline, for example, to provide the
Commission sufficient time to issue a decision after the currently scheduled hearing.
However, SUEZ submits that at this time the lntervenors have not demonstrated good
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cause to extend the statutory deadline. The currently requested extension should
therefore be denied.
Flcrual ruro PnoceDURAL BlcxoRoulo
On July 30,2020, SUEZ filed with the Commission a Notice of lntent to file a
general rate case. On September 30, 2020, SUEZ filed its application and supporting
testimony. That same day, and again through the following months, SUEZ provided
notice of the rate case through a variety of outlets.l
The Commission issued its Notice of Application and Notice of lntervention on
October 21,2020. The Notice states that this general rate case could involve the
following issues:
. The Company's intrastate revenue requirement, and every component of
it, both rate and expense;
All of the Company's retail rates and charges, and every component of
every existing and proposed rate and charge;
All existing or proposed relationships between and among rates and
charges within, between, or among customer classes or rate groupings;
All rate blocks or categories, or rates and charges, or customer classes or
rate groupings; and
Alltariffs, practices, rules, and regulations, service, instrumentalities,
equipment, facilities, classifications, and customer relations.
Order No. 34819 at2
Discovery began promptly after the case was filed. Between October 7,2O2O and
1 Specifically, on September 30, 2020, SUEZ provided a news release to local news media. On October
1,2020, SUEZ published to social media a link to a website that contained information on the rate case.
SUEZ reposted the message on October 22,2020; October 29,2020; November 5,2020; and November
12, 2020. On October 1,2020, SUEZ sent an email regarding the rate case to all customers for whom
SUEZ has emailaddresses-approximately 50,000 accounts. SUEZ provided individual mailed notices of
the rate case to each customer starting on October 19,2020.
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a
a
January 27,2021, Commission Staff served, and SUEZ responded to, eight sets of
discovery requests.
The lntervenors petitioned for intervention between November 7,2020 and
November 18,2020. Even before the Commission granted intervention, SUEZ
corresponded with several of the intervenors in an aftempt to begin discussions about
the issues in the case.
AII lntervenors were admitted as parties to the case on December 4,2020. On
that same day-December 4,2020<nunsel for SUEZ provided to all lntervenors
copies of the protective order to facilitate lntervenors' access to confidential discovery
materials. A copy of this correspondence is attached as Exhibit 1.
SUEZ provided lntervenors with access to discovery materials on an ongoing
basis beginning on December 9, 2020. Confidential materials were provided promptly
after each intervenor signed the protective order. Throughout the case, counselfor
SUEZ has remained in touch with lntervenors regarding discovery responses and other
procedural and technical issues.
Despite the Company's proactive efforts, the first discovery response from an
intervenor was served on Febru ary 1 , 2021. By rule, a party must be provided at least
twenty-one days to respond to discovery. See IDAPA 31.01 .01.225.03 ("Unless
otherwiseprovidedbyorder,notice,ortheserules...partieshave@fourteen
(14) days to object or explain why a question cannot be answered according to this rule
and twentv-one (21) davs to answer." (emphasis added)).
The initial seftlement conference in this c€lse was held on February 11,2021.
lntervenors served additional discovery requests on February 12, 2021; February 16,
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2021; February 20,2021; February 23,2021; February 25,2021; and March3,2021.
Through great effort, the Company has timely responded to each discovery
request filed in this case.2
After the first settlement conference, attorneys for Commission Staff circulated a
proposed schedule for testimony and a hearing. To provide the parties with the
maximum amount of time before the statutory deadline, the existing schedule proposed
a hearing on April 20-22, shortly before expiration of the initial statutory period.
Despite the Commission and the Company's notices, Commission Staffs early
discovery, the Company's outreach efforts, and the Company's timely discovery
responses, the lntervenors have requested that the Commission extend the statutory
deadline and delay the cunent schedule by forty-five days. As described in more detail
below, the proposed extension would prejudice the Company and compress the
timeframe for issuing a decision in the case. Intervenors have not provided good cause
for the extension. SUEZ therefore respectfully requests that the motion for extension of
time be denied.
ARoumerur
1. Legal standard
Under ldaho Code S 61-622, the Commission has the authority to suspend the
proposed effective date of a change in rates "for a period not exceeding five (5)
months." The Commission can extend the effective date for a rate change for "an
2 The Company may have obtained one three- or four-day extension to one of Staffs set of discovery
requests. As for pending discovery requests, the Company has aftempted to expedite responses and will
provide responses as soon as possible and, in any case, on or before the twenty-one days provided by
rule.
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additional sixty (60) days", but only "after a showing of good cause on the record." ldaho
Code S 61-622(4).
There is no allowance for additional suspensions. The Commission must issue
an order allowing rate changes to become effective at the end of the sixty-day good-
cause period.
"Good cause" for invoking the additional sixty days includes the Commission's
need to consider all the evidence and issue a fully considered decision. Order No.
32642, Case No. FLS-W-12-01(Sept. 13,2012) ("[T]he Commission finds it needs
additional time to thoroughly review the record and analyze the comments and the
parties' respective positions."); Wash. Water Power Co. v. ldaho Public Utilities
Comm'n,101 ldaho 567,572 (1980) (upholding Commission's suspension of effective
date).
SUEZ is not aware of any decision extending the statutory deadline based on the
number of intervenors, the inexperience of some intervenors, the chance of an
additional settlement conference, or many of the other arguments currently presented
by Intervenors as "good cause"
2. Delaying the schedule would prejudice SUEZ and, potentially, the
Commission and the parties if bona frde unforeseen difficulties arise.
As noted above, a utility has the right to a reasonable opportunity to collect its
revenue requirement. A sixty-day delay interferes with this opportunity: the utility does
not have the opportunity to make up the revenue that was foregone during the sixty-day
extension period. This inherent prejudice is, presumably, why the sixty-day extension
can be granted only upon a showing of good cause.
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lf the Intervenors' request is granted, the Commission may be prejudiced as well.
The lntervenors seek to delay the hearing from April 20-22 to the week of June 7 , 2021.
This would provide the Commission with only three weeks to obtain transcripts, review
the record, and issue a decision. And-perhaps more importantly-this schedule would
leave no additiona! time for bona fide unforeseen or unexpected additional delays, such
as the Commission's workload at the time, illness or unavailability of witnesses,
technological issues, or other mafters that would constitute good cause for an additional
extension. SUEZ respectfully submits that the additional good-cause time period should
be reserved for truly unforeseen or unexpected circumstances. Not issues that are
commonplace in general rate cases.
SUEZ recognizes that the Commission may need additional time to issue a
decision after the currentlv scheduled hearing. SUEZ does not object to a reasonable
extension of the statutory deadline for this purpose if the need arises. But SUEZ does
submit that lntervenors have not demonstrated good cause to extend the currently
contemplated hearing past the statutory deadline.
3. lntervenors have not established good cause to delay the current schedule
by forty-five days.
lntervenors present severa! arguments in support of extending the statutory
deadline. SUEZ respectfully submits that these arguments are not availing.
Number of intervenors. lntervenors argue that an extension is granted in part
because "there are a substantial number of intervenors in this rate case." Motion at 3. ln
recent years, the Commission has considered a number of cases that involve between
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five and thirteen intervenors.3 This case involves seven. The number of lntervenors is
well within the normal bounds of a genera! rate case or other complex proceeding.
Next, lntervenors argue that "each [intervenor] raises important issues, some of
which are independent of others raised." Motion at 3. Again, that is common-if not
routine-in Commission proceedings. Rate cases and other complex proceedings
involve important issues. But they still must be decided in accordance with the statutory
deadline.
ln addition, while each intervenor may raise importiant issues, those issues are
not all distinct. lndeed, there appears to be considerable overlap of Intervenors'
interests. For example, the City of Boise, Ada County, and the SUEZ Water Customer
Group each purports to represent some ill-defined but overlapping subset of SUEZ
customers.a The lndividual lntervenors represent persons who reside on the Boise
Bench, and who therefore reside within the City of Boise and who might also be
included within the SUEZ Water Customer Group. CAPAI represents low-income
customers, some of which presumably reside within the City of Boise, some of which
presumably reside within Ada County, and some of which may be members of the
SUEZ Water Customer Group. The City of Boise and Ada County are themselves SUEZ
customers, but appear to have similar facilities and therefore interests in this regard.
Certainly, each Intervenor may have slightly different interests here, and each may have
3 Examples include IPC-E-18-16 (thirteen intervenors); IPC-E-19-15 (ten intervenors); INT-G-16-02
(seven intervenors); AVU-E-17-09 (seven intervenors); AVU-E-19-04 (five intervenors).
a The geographical location of customers within Ada County and the City of Boise are, obviously, well-
defined, but customers' interests do not split along municipal boundaries. As for SUEZ Water Customer
Group, it is entirely unclear which subset of customers the group purports to represent. But any
representative group of SUEZ customers would include customers within both Ada County and the City of
Boise.
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important issues. But there appears to be at least substantia! overlap in their interests
and goals in the case.
SUEZ recognizes that cases with a large number of lntervenors can be difficult to
process. But the statutory deadlines exist to avoid undue delay in processing rate
cases. SUEZ would submit that this case is complex, but not exceedingly so. The
number of lntervenors, and their varying interests, does not provide good cause to delay
the scheduling order in this case.
lnexperience of lntervenors. Intervenors state that "[s]everal of the intervenors
are not usual participants to Commission proceedings and, despite exercising diligence
in the matter, seek additionaltime to navigate" the case. Motion at 3. However, all but
two of the Intervenors or their counsel have participated in prior Commission
proceedings, and several have decades of experience in this area.S
ln addition, throughout the case SUEZ has reached out to intervenors to invite
discussions, to discuss procedure, to ensure intervenors received discovery responses,
and with offers to discuss other issues. SUEZ understands and recognizes that the
Commission's procedures can be intimidating to some. At the same time, the presence
of two inexperienced intervenors does not itself give rise to good cause to extend the
statutory deadline in this case.
lssues in the case. Intervenors claim that a number of issues have come to light
through discovery: "Suez['s] underlying assumptions for projects; items not known or
5 For example, Micron, CAPAI, and the City of Boise have participated in Commission proceedings for
decades. Mr. Semanko has represented what appear to ad hoc customer groups in at least two other
proceedings within the past several years, and Ms. Durand (here representing the lndividual lntervenors)
or colleagues in her law firm appear to have participated in several Commission proceedings. The only
entirely new participants appear to be Ada County and the lntermountain Fair Housing Council.
OPPOSITION TO MOTION FOR EXTENSION OF TIME - 9
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measurable at this time; prudency and justification for projects included for the rate
change and portions of the revenue requirement; presumptions or deficiencies in
underlying cost of service analyses; rates among customer class," and others. Motion at
3-4.
lntervenors are correct that this case may involve such issues. But so does every
general rate case. Indeed, the Commission's notice in this case specifically identifies
many of the items that lntervenors purport to have discovered through discovery here.
To the extent lntervenors purport to have discovered these issues only recently,
that is a crisis of their own making. lntervenors have been on notice that these issues
are involved in the case. Only one intervenor requested discovery before the initial
settlement conference. Discovery requests were sent as late as March 3, making the
responses due well after lntervenors'would be required to file testimony on the current
schedule.
ln short, neither the presence of these issues nor the purported recent discovery
of these issues constitutes good cause to extend the statutory deadline.
Discovery. lntervenors argue that delay is needed because "many discovery
requests are outstanding, which information would inform and may aid in settlement
progress." Motion at 3. lt is true that lntervenors filed discovery requests as late as
March 3,2021, and that responses to these requests are forthcoming. SUEZ will
attempt to expedite these requests and will provide responses on or before they are
due.
But lntervenors control the timing of their own discovery requests. SUEZ's
counsel emailed all lntervenors on Dee,ember 4,2O2O providing notice that discovery
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was ongoing. lntervenors cannot rely on a crises of their own making as good cause to
extend the statutory deadline.
Logistics of settlement. lntervenors argue that "[t]he schedule between
settlement negotiations has been inadequate to consider the Staffs proposal, the
Company's counterproposal, as wellas additionaltechnical matters continuing to come
into the proceeding." Motion at 5. lntervenors further argue that, due to these logistics,
without an extension "the case becomes a settlement discussion limited to the PUC
staff and SUEZ, and excludes lntervenors who represent parties with a significant
interest in the outcome." ld. at4.
Again, SUEZ recognizes that the number of settlement conferences, and their
pace, can be intimidating. However, that is standard practice for rate cases. !t does not
provide good cause for an extension.
It is simply not true that the case threatens to become a seftlement discussion
limited to the PUC staff and SUEZ. Every intervenor has been represented in the
settlement conferences. While the contents of the conferences are confidential,
participation has been robust. Yes, the issues move rapidly. But they move rapidly for
everyone. Commission Staff continues, through great efforts, to remain engaged both
with the Company and with lntervenors. But the pace of settlement discussions does
not provide good cause for an extension of time.
ln addition, while SUEZ appreciates Intervenors'expressed interest in
settlement, delaying the collection of revenue requirement at this time is likely to
decrease the likelihood of settlement. As noted, a utility cannot make up for delayed
collection of a revenue requirement. Delaying implementation of rates thus creates a
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financial burden on the Company that moves the parties farther apart, rather than closer
together, regarding possible common ground over revenue requirement.
lntervenors note that additionaltime'\uould enable the parties to schedule an
additiona! settlement conference." Motion at 4. The parties have already scheduled an
additional conference for March 8,2021. This concern appears to be resolved. It is far
from clear that an additional settlement conference will be helpful-if the parties cannot
agree after four conferences, a fifth may not be useful or necessary. The logistics
regarding settlement, or the possibility of another settlement conference does not
provide good cause to extend the statutory deadline.
ln short, SUEZ respectfully submits that lntervenors have not provided good
cause to extend the statutory deadline or to delay the processing of this case by the
requested forty-fi ve days.
4. SUEZ does not oppose an extension of the statutory deadline to
accommodate a decision after the currently scheduled hearing, and will
work with intervenors to accommodate Iegitimate unforeseen need for
additionaltime.
As noted above, the existing schedule proposes a hearing on April 20-22,2021.
This hearing is, admittedly, close to the statutory deadline. The existing schedule allows
as much time as possible for the parties to exchange discovery and engage in
seftlement discussions. SUEZ does not oppose a reasonable extension of the statutory
deadline to allow the Commission to issue a decision after the currently scheduled
hearing.
ln addition, to the extent individual !ntervenors have experienced, or experience
in the future, legitimate unforeseen difficulties such as the departure of an important
client party, an illness or injury, or other issues, SUEZ is willing to stipulate to
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reasonable extensions regarding deadlines for filing pre-filed testimony. However,
lntervenors have failed to show sufficient good cause for a forty-five day delay in the
case.
Cottct-usrott
SUEZ respectfully submits that the lntervenors have not demonstrated good
cause to extend the statutory deadline to process this case. The extension will prejudice
the Company and place the Commission and the parties in the position of having no
additional time for truly unforeseen circumstances. For this reason, SUEZ requests that
the Commission deny the Motion for Extension of Time.
That said, SUEZ does not oppose a reasonable extension of the Commission's
deadline to issue a decision after the cunently scheduled hearing. SUEZ continues to
be amenable to working with the parties to accommodate unforeseen difficulties as
needed on an ongoing basis.
DATED: March 5,2021.
SUEZ WATER IDAHO INC.
'/ *-^- --
By:
Michael C. Creamer
Preston N. Carter
Attorneys for Applicant
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CERTIFICATE OF SERVICE
I certify that on March 5,2021, a true and correct copy of the foregoing was
served upon all parties of record in this proceeding via electronic mail as indicated
below:
Commission Staff
Jan Noriyuki, Commission Secretary
ldaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg. 8, Ste. 201-A
Boise, lD 83714
[e-mail]
Dayn Hardie
Matt Hunter
Deputy Aftomey General
ldaho Public Utilities Commission
11331W. Chinden Blvd., Bldg. 8, Ste. 201-A
Boise, lD 83714
[e-mail]
matt. h u nter@puc. idaho.qov
!ntervening Parties
Ada County:
Lorna K. Jorgensen
John C. Cortabitarte
Ada County Prosecuting Attorney's Office
Civil Division
200 W. Front Street, Room 3191
Boise, lD 83702
ljo rqen sen @ad aco u ntv. id .qov
icorta bita rte@adacounty. id.qov
CAPAI:
Brad M. Purdy
2019 N. 17th Street
Boise, lD 83702
[e-mail]
lnteruenors:
Marty Durand
Piotwrowski Durand PLLC
1020 Main Street, Suite 440
P.O. Box 2864
Boise, lD 83701
martv@idun ionlaw.com
OPPOSITION TO MOTION FOR EXTENSION OF TIME - 14
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Electronic Mail
Electronic Mail
Electronic Mail
Boise City:
Scott B. Muir
Deputy City Attorney
Boise City Attorney's Office
150 N. Capitol Blvd.
P.O. Box 500
Boise, lD 83701-0500
boi secitvattornev@ citvofbo i se. o ro
Suez Water Customer Group:
Norman M. Semanko
Parsons Behle & Latimer
800 W. Main Street, Suite 1300
Boise, !D 83702
NSema nko@pa rsonsbehle.com
Boisedocket@ pa rsonsbeh le.com
I ntermou ntain Fair Housing
Council, lnc.
Ken Nagy
Attorney at Law
P.O. Box 164
Lewiston, ID 83501
[e-mail]
lntermountain Fair Housing Council, lnc.
Zoe Ann Olson, Executive Director
4696 W. Overland Rd., Suite 140
Boise, lD 83705
[e-mail]
Jim Swier
Greg Harwood
Micron Technology, lnc.
8000 S. FederalWay
[e-mail]
[e-mail]
Micron Technology, lnc.
Austin Rueschhoff
Thorvald A. Nelson
Holland & Hart
555 17r' St., Suite 3200
d a ru esch hoff@ hol la nd hart. com
[e-mail]
[e-mail]
[e-mail]
A---4::-,"
Preston N. Carter
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-
Fr
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EXHIBIT 1
From:
Sent:
To:
Cc:
Subject:
Attachments:
Preston N. Carter
Friday, December 4, 2020 1:42 PM
'civilpafi [e-mail]';'[e-mail]';
' NSemanko@ parsonsbehle.com';' [e-mail]';
'[e-mail]';'[e-mail]';'[e-mail]';
'[e-mail]'; '[e-mail]'; '[e-mail]';
'[e-mail]'; [e-mail]';'[e-mail]';
'Matt Hunter'; 'Dayn Hardie'
MichaelC Creamer; Kendra Hoffman
2020- 1 0-09 Protective Agreement -SUE7-PUC Executed.PDF [WOV-
GPDMS.FlD1O174711
1 5350522-1 2020- 1 0-09 Protective Ag reement -S U F7-PUC Executed. PDF
All,
I am reaching out today to all intervenors in SUZ-W-20-02, the SUEZ Water Idaho lnc. general rate case. Commission
Staff has served SUEZ with three sets of production requests. A response to the second set is due December 9. SUEZ
anticipates that the response will include confidential information. lf intervenors would like to receive the confidential
information, please sign the attached Protective Agreement and return a copy to me. Any persons within the lntervenor
organization who will have access to the confidential information will also need to sign Exhibit A and provide a signed
copy to me as well.
Logistically, SUEZ will need to focus on providing the responses to the second set of production requests on December 9;
shortly after that we can provide to intervenors the responses to the first set of production requests.
Please let me know if you have questions.
Thank you,
Preston
PRBstoT.I N. CARTER
GtvBNs PURSr-py r,lp
601 West Bannock Street, Boise, lD 83702
direct 208-388-1222 I main 208-388-12O0
pnqE-sivensourslev.com / www.givenspursley.com
CONFIDENTIALITYNOTICE: This communication is confidential and may contain privileged information. If you have received it in error,
please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the
contents. Thank you.
Preston N. Carter