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1 BOISE, IDAHO, MONDAY, JANUARY 14, 2002, 2:00 P.M.
2
3
4 COMMISSIONER KJELLANDER: Well, good
5 afternoon. This is a -- this is the time and place
6 for a prehearing conference in Case No. IPC-E-01-43,
7 in the matter of the Petition of the Commission
8 Staff requesting that the Commission investigate the
9 buyback rates in the Letter Agreement entered into
10 by Idaho Power Company and Astaris LLC.
11 The purpose of today's prehearing
12 conference is to discuss some preliminary issues,
13 and to develop a schedule for this case.
14 And as we proceed today, I'll need to
15 note out that I'm Paul Kjellander; I'll be the
16 Chairman of this case. To my right is Commissioner
17 Dennis Hansen, and to my left is Commissioner
18 Marsha Smith. The three of us comprise the
19 Commission, and as we move forward to the point
20 where we are at a point to deliberate and issue
21 Orders, we will be the three that make up the final
22 Decision.
23 Let's begin now by taking the
24 appearance of the parties, and why don't we begin
25 with the parties for Astaris.
1
COLLOQUY
1 MR. POMEROY: Thank you, Mr. Chairman.
2 My name is Bob Pomeroy.
3 COMMISSIONER KJELLANDER: Bob, if you
4 would like, we allow you to go ahead and sit down if
5 you feel more comfortable. And we also would like
6 you to turn on your microphone, because I understand
7 we do have some people on via the telephone, and
8 that's the only way they'll be able to hear you.
9 So, again, I'm sorry to interrupt, and if you'd like
10 to start over.
11 MR. POMEROY: Thank you, Mr. Chairman,
12 and good afternoon, Commissioners. My name is
13 Bob Pomeroy. I'm from the law firm of Holland and
14 Hart.
15 With me today will also be one of my
16 colleagues, Thor Nelson. He's not physically in the
17 room at the moment, but he will be here shortly.
18 I also have beside me at Counsel table
19 Mr. Paul Yochum, who works with FMC.
20 I'm appearing here today on behalf of
21 Astaris Idaho LLC, Astaris LLC, as well as FMC, and
22 we have filed a Petition to Intervene.
23 COMMISSIONER KJELLANDER: Thank you.
24 And also I think on the phone, if I'm
25 not mistaken, there is a Rick Pasquier from FMC. Is
2
COLLOQUY
1 that correct?
2 MR. PASQUIER: That's correct.
3 COMMISSIONER KJELLANDER: And
4 spelling, for the record, is P-A-S-Q-U-I-E-R. And
5 are you going to be representing FMC in a legal
6 capacity in this case?
7 MR. PASQUIER: I am merely auditing.
8 I just want to get a flavor of the proceeding and
9 have a kind of (telephone interference) as it goes
10 forward.
11 COMMISSIONER KJELLANDER: Okay. Well,
12 Rick, thank you for the clarification, and we're
13 pleased to have you on the line today.
14 I think I also heard another phone
15 line just come on. Did we have someone else join us
16 via the conference setup?
17 MS. UTECHT: Andrea Utecht from FMC.
18 COMMISSIONER KJELLANDER: Andrea?
19 MS. UTECHT: Uh-huh.
20 COMMISSIONER KJELLANDER: And how do I
21 spell your last name?
22 MS. UTECHT: -- -T-E-C-H-T.
23 COMMISSIONER KJELLANDER: P-E-C-H-T?
24 MR. UTECHT: Yes.
25 MR. POMEROY: I think I can clarify
3
COLLOQUY
1 it. It's U-T-E-C-H-T.
2 COMMISSIONER KJELLANDER: That's been
3 clarified. Thank you. And, Andrea, you're just
4 monitoring. Is that correct?
5 MS. UTECHT: Correct.
6 COMMISSIONER KJELLANDER: Thank you.
7 While we're dealing with the phone line, I believe
8 that Randy Budge is on the line. Is that correct?
9 MR. BUDGE: Yes, that's correct,
10 Mr. Chairman, on behalf of the Irrigation Pumpers
11 Association, and I believe we did file a Petition to
12 Intervene that was mailed Thursday. I'm not sure if
13 it's arrived yet there.
14 COMMISSIONER KJELLANDER: Thank you,
15 Randy.
16 Let's move now to the Counsel
17 representing the Commission Staff for appearances.
18 MR. HAMMOND: John Hammond, deputy
19 attorney general, representing the Commission Staff.
20 COMMISSIONER KJELLANDER: Thank you,
21 Mr. Hammond.
22 And let's move now to Idaho Power
23 next.
24 MR. RIPLEY: Larry D. Ripley and
25 Barton L. Kline appearing on behalf of Idaho Power
4
COLLOQUY
1 Company.
2 COMMISSIONER KJELLANDER: Okay,
3 Mr. Ripley and Mr. Kline. Is Mr. Kline sitting in
4 the back?
5 MR. RIPLEY: Mr. Kline is not here
6 today. These are the two attorneys that will be
7 representing Idaho Power.
8 COMMISSIONER KJELLANDER: Thank you.
9 So you're solo today then.
10 MR. RIPLEY: Yes.
11 COMMISSIONER KJELLANDER: Okay. And I
12 see another face. Mr. Richardson.
13 MR. RICHARDSON: Thank you,
14 Mr. Chairman. Peter Richardson of the firm
15 Richardson and O'Leary, appearing on behalf of the
16 Industrial Customers of Idaho Power, and we
17 hand-delivered our Petition to Intervene on Friday.
18 COMMISSIONER KJELLANDER: Thank you,
19 Mr. Richardson.
20 Is there anyone else that needs to be
21 recognized as I guess I would say a potential party
22 to the case, or Intervenor?
23 And if not, I think the first issue to
24 take up is the issue of Intervenor status. Am I
25 correct, Mr. Hammond?
5
COLLOQUY
1 MR. HAMMOND: That would be fine.
2 COMMISSIONER KJELLANDER: Why don't we
3 deal with that first. All right, we have Requests
4 from the Industrial Customers, represented by
5 Mr. Richardson.
6 We also have a Request from the
7 Irrigation Pumpers Association, Mr. Budge.
8 And then if I'm not mistaken, early on
9 there was a Request for at least three entities that
10 are being represented by Holland and Hart. Is that
11 correct?
12 MR. POMEROY: That is -- that is
13 correct. They are collectively referred to as
14 "Astaris" in our Petition, but they are three
15 separate entities: Astaris Idaho LLC, Astaris LLC,
16 and then FMC, which is a part owner of Astaris LLC.
17 COMMISSIONER KJELLANDER: So then for
18 purposes of the case then, we would move forward and
19 just refer to it singularly as "Astaris."
20 MR. POMEROY: That's what we would
21 propose, yes.
22 COMMISSIONER KJELLANDER: All right.
23 Are there any objections to the Intervenors and the
24 Requests for Intervention in this case at this
25 point?
6
COLLOQUY
1 MR. RIPLEY: Mr. Chairman.
2 COMMISSIONER KJELLANDER: Mr. Ripley.
3 MR. RIPLEY: We have not received
4 copies of the Petitions to Intervene, so I don't
5 know if we have any objection; I'm assuming we
6 probably do not. We certainly have no problem with
7 those parties participating in the prehearing
8 conference today, subject to our right to raise
9 perhaps some objection once we have had access to
10 the Pleadings.
11 COMMISSIONER KJELLANDER: Any further
12 comments?
13 All right, then, without any
14 additional objection, then we'll go ahead and allow
15 all of the Intervenors who have filed Requests to be
16 a party to this case to do so, and we'll proceed
17 with today's proceedings with you as official
18 intervening status.
19 All right. We're ready now to take up
20 any other preliminary matters that you'd like to
21 bring up before the Commission at this prehearing
22 conference.
23 MR. HAMMOND: Chairman Kjellander and
24 Commissioners, there are a couple issues that should
25 be brought up today. I think I'll switch the order
7
COLLOQUY
1 of these just for timing sake, and the first issue,
2 I believe, is a question about whether the
3 Commission has -- ultimately has jurisdiction to
4 decide this issue. And I know that Counsel for
5 Astaris would like to file at least a Brief or some
6 sort of Motion to provide the Commission with their
7 viewpoint on that, whether the Commission has
8 authority. We have -- we believe that that's
9 something that they can do, except that the timing
10 of that should be at the conclusion of your
11 Decision; however, we wanted to provide them with
12 the opportunity to raise when they could file that
13 Motion.
14 COMMISSIONER KJELLANDER: Well, I
15 think that I'm sufficiently curious enough to know
16 which Decision you were talking about that the
17 Commission might make at which time they might file
18 a Motion.
19 MR. HAMMOND: Well, I think I'd rather
20 let them explain because they will articulate their
21 need better than I will, and I don't want to speak
22 for them, so --
23 COMMISSIONER KJELLANDER: Well then,
24 let's move to Mr. Pomeroy.
25 MR. POMEROY: Thank you, Mr. Chairman.
8
COLLOQUY
1 As the Commission I hope is aware, we did file a
2 Prehearing Statement that outlined some of our
3 concerns. In that Statement, we asked that if this
4 proceeding is going to continue beyond today's
5 prehearing, we would like the opportunity to Brief
6 and then ultimately to argue the question of the
7 Commission's authority with respect to this buyback
8 provision, and it's our hope that that can be done
9 on an expedited enough basis that we could still
10 have an expedited hearing schedule as well. They
11 would essentially be overlaid procedural schedules
12 so we're not slowing down the evidentiary track in
13 any way, but we do wish to speak and be heard on the
14 subject of the Commission's jurisdiction.
15 It would be our thought to establish
16 some sort of a briefing schedule on that today, as
17 well as whatever schedule the Commission and the
18 parties can agree to on the evidentiary portion of
19 the proceeding as well, recognizing, of course, that
20 our first request to the Commission is to ask that
21 this proceeding be discontinued altogether, simply
22 because we feel it's -- it's manifestly unfair to us
23 and our Contract. But the Staff has already to some
24 extent argued this issue and the Commission has
25 chosen to open this proceeding, and we were aware
9
COLLOQUY
1 that we find the case in that situation today, but
2 we do ask to be heard on both the evidence, as well
3 as the law.
4 COMMISSIONER KJELLANDER: Thank you.
5 And let's open that up for comment quickly.
6 Mr. Hammond, again, now that I have
7 this more fully laid out, did -- what are your
8 thoughts, objections, ideas, in relationship to
9 that?
10 MR. HAMMOND: Well, Staff's position
11 is that once the Commission chose to open the
12 investigation, that matter has been decided, at
13 least until the Commission reconsiders that issue
14 after it's made a Final Decision should Astaris or
15 someone be displeased with that Decision, or raise
16 it in a Posthearing Brief -- a legal argument in a
17 Posthearing Brief -- or argue that matter at the
18 hearing, rather than filing a Brief and requiring a
19 briefing schedule prior to; but, of course, we'll
20 defer to whatever the Commission's Decision is with
21 regard to this issue.
22 COMMISSIONER KJELLANDER: Mr. Ripley.
23 MR. RIPLEY: We really have nothing to
24 add, Mr. Chairman. Obviously, the -- Astaris is
25 certainly entitled to argue that the Commission
10
COLLOQUY
1 doesn't have any jurisdiction. As to when that
2 appropriate time is we leave to the discretion and
3 judgment of the Commissioners.
4 COMMISSIONER KJELLANDER: Mr.
5 Richardson.
6 MR. RICHARDSON: I'd echo what
7 Mr. Ripley said.
8 COMMISSIONER KJELLANDER: Mr. Budge.
9 MR. BUDGE: We don't have any comment
10 at this time, Mr. Chairman. We are mainly here at
11 this point to monitor the proceedings as well.
12 COMMISSIONER KJELLANDER: Okay. Well,
13 I guess what I'm trying to do is get to the point of
14 what the Decision unit really is, and it's just
15 whether or not we would allow Astaris to essentially
16 file a Brief in relationship to this; and I guess at
17 this point we could either, as a Commission, just
18 recess for a moment, discuss it, and perhaps even
19 get back with a response to you in just a few
20 moments. So we'll take about a five- to six-minute
21 break and go off the record.
22 (Recess.)
23 COMMISSIONER KJELLANDER: We're ready
24 to go back on the record, if everyone would like to
25 reposition themselves.
11
COLLOQUY
1 Okay, we're back on the record, and
2 the Commission's perspective on this is certainly
3 that Astaris has the right at any time throughout
4 the proceedings to bring up the issue with regards
5 to jurisdiction, so certainly to the extent that the
6 Company wants to push that issue as part of the
7 proceedings as they move forward, that's the --
8 that's the Company's prerogative, and the Commission
9 would certainly entertain it at its time and place.
10 Are there other preliminary matters
11 that need to come before the Commission?
12 MR. HAMMOND: Yes, Mr. Chairman. The
13 parties -- well, I should say that Astaris and
14 Idaho Power and Staff had reached what I'll call a
15 Statement of Understanding, because that's what it's
16 entitled, regarding the question of the escrow
17 account. We had brought that issue up in our
18 Petition and noticed it out. The Staff of the
19 Utilities Commission, Astaris -- the "group," as
20 we -- as Mr. Pomeroy has represented -- and Idaho
21 Power represented that the Staff would withdraw its
22 Request that the Commission establish an escrow
23 account in this case, and the parties -- well, I'm
24 just not going to read the entire Agreement, I
25 guess.
12
COLLOQUY
1 We have reached an Agreement that the
2 escrow would not go into place, and that the Company
3 affirms that it has sufficient resources to meet any
4 legal obligation that it should have pending the
5 Commission's Order, whatever that may be, and
6 that -- excuse me.
7 Oh, and that the parties have agreed
8 that this case will proceed in all due haste, and
9 hopefully establish a procedural schedule to decide
10 this matter by March 22, 2002.
11 Astaris is committed. It will comply
12 with any final and binding Decision of the
13 Commission as may be required by law, subject to any
14 appeal permitted by law. Astaris commits in the
15 event that a final, binding Decision of the
16 Commission is issued and not stayed by a court of
17 competent jurisdiction, Astaris will comply with
18 such a Decision to the extent it calls for refunding
19 of moneys from Astaris to Idaho Power by refunding
20 any such moneys owed within 30 days -- 38 days of
21 such Order. In seeking a stay in any court of
22 competent jurisdiction, Astaris will not assert its
23 grounds for such a stay, but if Astaris is unable to
24 comply with a Commission Order, or Paragraph B in
25 the Statement of Understanding, or that complying
13
COLLOQUY
1 with Paragraph B will cause Astaris financial harm.
2 And the final paragraph:
3 All parties reserve the right to make
4 any arguments it deems reasonable before the
5 Commission or a court of competent jurisdiction as
6 to whether or not the Commission's Decision ordering
7 any such refund as described in this Statement of
8 Understanding violates the prohibition against
9 retroactive ratemaking. The parties agree that the
10 Staff's withdrawal of its Request to establish an
11 escrow account has no relevance as to whether or not
12 such Commission Decision violates the prohibition
13 against retroactive ratemaking, and this Statement
14 of Understanding shall not be used against Staff for
15 such purpose.
16 And if you'd like, I can provide you a
17 copy with the understanding that we have reached.
18 In essence, we are not going to push the escrow
19 issue at this point, and merely move forward in our
20 substantive case.
21 COMMISSIONER KJELLANDER: Thank you,
22 Mr. Hammond.
23 Is that a fair representation to the
24 parties to the case? Is that what you think that
25 you have agreed to?
14
COLLOQUY
1 MR. POMEROY: Mr. Chairman, may I
2 address that?
3 COMMISSIONER KJELLANDER: Sure.
4 MR. POMEROY: It is, subject to our
5 trying at this very moment to get final sign-off
6 from our client. This was hammered out sort of
7 throughout the morning and we are still in the
8 process of trying to get a final approval. It turns
9 out the people we are trying to reach are already on
10 the phone here listening in, so we're trying to
11 reach them on a separate line and confirm that they
12 agree with what is in this document as outlined by
13 Mr. Hammond; but I believe we have an Agreement on
14 this, yes, and we will know momentarily.
15 COMMISSIONER KJELLANDER: And if I'm
16 not mistaken, there's still going to be a need for
17 there to be some discussion about scheduling, and so
18 perhaps that will give us enough of a delay to get
19 to that answer.
20 Other parties to the case have any
21 comments regarding the Agreement?
22 MR. RIPLEY: We only have one concern,
23 Mr. Chairman, and that is that already in this
24 proceeding we're starting to use terms rather
25 loosely from the standpoint -- I don't know for
15
COLLOQUY
1 certain who Astaris is. There is an Astaris LLC
2 Idaho. There is an Astaris LLC Delaware. This
3 Agreement says Astaris LLC and Astaris Idaho LLC,
4 then down in the body it says Astaris affirms. I
5 think we need to make sure that we understand what
6 Astaris we're talking about when it comes time to
7 agree.
8 Now, as I read this, FMC is not
9 underwriting any of the obligation that could occur
10 in the event that Astaris were to be unsuccessful
11 before the Commission.
12 So, I guess I have two questions:
13 Number one, when Astaris affirms, who
14 is Astaris?
15 And, number two, how does FMC fit into
16 this situation, if at all?
17 COMMISSIONER KJELLANDER: Thank you,
18 Mr. Ripley.
19 Mr. Pomeroy, your thoughts and ideas
20 on that as you move forward and what impact that may
21 have on the phone call you're trying to coordinate?
22 MR. POMEROY: I don't believe it has
23 any impact on the phone call we're trying to
24 coordinate, but I think I can answer Mr. Ripley's
25 concern.
16
COLLOQUY
1 We are using the term "Astaris" to
2 mean Astaris LLC, which is the contracting party
3 with Idaho Power, and that's the party to whom
4 Idaho Power would look for refund of payments made
5 if that were to be ordered. So that's the Astaris
6 that is referenced in the document, but again,
7 because we've been putting this material together
8 kind of as quickly as we possibly can, it may not be
9 laid out as well in the written paper as it could
10 be, and we can clarify that for the record. Perhaps
11 that just does clarify it for the record, unless
12 Mr. Ripley has other concern.
13 MR. RIPLEY: No, my only other problem
14 is I think my CFO has said, Well, I'd like some
15 assurance that Astaris LLC Delaware -- which is who
16 I assume we're talking about here -- actually has
17 assets. I mean -- and I accept Counsel's
18 representation that -- that there are assets in
19 Astaris LLC Delaware, but I think something as a
20 follow-up to give the Commission some degree of
21 assurance that, indeed, Astaris LLC Delaware has
22 assets sufficient in the event that something were
23 to occur. I just think that's something we should
24 take care of now and not let it fall through the
25 cracks.
17
COLLOQUY
1 COMMISSIONER KJELLANDER: And,
2 Mr. Ripley, if this would be appropriate, it's my
3 intent, assuming that there are no other preliminary
4 matters that need to come before the Commission,
5 that perhaps maybe when we break to allow the
6 parties to discuss a schedule and to put things
7 together, that perhaps those issues could be raised
8 within the group and perhaps resolved to be
9 presented to the Commission before we leave today.
10 Would that work okay?
11 MR. RIPLEY: Absolutely.
12 COMMISSIONER KJELLANDER: Okay.
13 Are there any other comments in
14 relationship to the Escrow Agreement that has been
15 at least initially penned?
16 MR. POMEROY: I do have one
17 clarification, if I may.
18 COMMISSIONER KJELLANDER: Certainly.
19 MR. POMEROY: Thank you, Mr. Chairman.
20 The discussions we've had today with the Staff have
21 been to try to work out a way to avoid disrupting
22 the status quo while the case is pending, but still
23 providing the assurance that the Staff wanted as to
24 Astaris.
25 It is my understanding that the
18
COLLOQUY
1 Staff's intention was to seek the Commission's
2 reformation or rewriting of this Contract as of no
3 earlier than January 8th of this year, 2002, and it
4 was our understanding that that -- that was the
5 position the Staff would be advocating. It is not
6 expressly stated anywhere, but it is clearly our
7 intention in agreeing to this expedited process and
8 to the terms of this arrangement that the Staff will
9 not be seeking a greater degree of retroactive
10 reformation of this Contract than to go back before
11 January the 8th. Is that -- is that fair?
12 COMMISSIONER KJELLANDER: Mr. Hammond.
13 MR. HAMMOND: That repetition is
14 pretty clear at this point, that we are not looking
15 backward at anything that's already occurred. We're
16 just looking at from the date the case was filed or
17 the case was opened, which was January 8th. So it's
18 our understanding that at this point, we're not
19 seeking anything that occurred prior to that day.
20 COMMISSIONER KJELLANDER: Okay. Does
21 that satisfy your concern, Mr. Pomeroy?
22 MR. POMEROY: Yes, it does.
23 COMMISSIONER KJELLANDER: Thank you.
24 Are there any other concerns in relationship to the
25 proposed Agreement?
19
COLLOQUY
1 If not, are there other preliminary
2 matters that need to come before the Commission at
3 this time?
4 None?
5 Mr. Ripley.
6 MR. RIPLEY: I assume that we will
7 have an opportunity to address what we believe are
8 the issues in this proceeding. I mean, you're
9 not -- you're not recessing and we're all leaving.
10 COMMISSIONER KJELLANDER: No. No, no,
11 no. I'm just curious if there are other preliminary
12 matters that need to come before the Commission.
13 MR. RIPLEY: We have one in reference
14 to the January 8th, and that is, we pay Astaris
15 monthly --
16 COMMISSIONER KJELLANDER: Uh-huh.
17 MR. RIPLEY: -- for the voluntary load
18 reduction. We might as well get it straightened out
19 now. I am assuming that from what Astaris and Staff
20 have stated is we would allocate the January
21 payment, 8/30ths of it would be in the -- in the
22 what I would call the normal deferred account, and
23 22/30ths would be in what I would assume to be the
24 special deferred account, pending a Decision by this
25 Commission.
20
COLLOQUY
1 Hopefully I'm not confusing you.
2 Prorated, in other words. The January payment --
3 the February payment that we will make to Astaris
4 for January will be prorated based upon the 8th
5 date.
6 COMMISSIONER KJELLANDER: I guess I'm
7 not tracking with you, but at this moment I don't
8 have to. Let me open that up to some of the other
9 parties in the case. Let me move first to
10 Mr. Pomeroy.
11 MR. POMEROY: Thank you, Mr. Chairman.
12 I'm not sure I'm tracking either, but let me clarify
13 something:
14 The intention here is not to alter the
15 status quo of the payment arrangements, so to the
16 extent that what Mr. Ripley is asking is to change
17 the payment arrangements, then we do have an
18 objection. If what he's referring to is merely
19 prorating one of the accounts that Idaho Power
20 manages or the calculations that they make on where
21 the money is allocated, we don't have any objection
22 to that. But to the extent he's asking now to
23 change the way in which payment is paid to Astaris,
24 in effect to rewrite the terms of the Contract this
25 afternoon, we would not agree to that.
21
COLLOQUY
1 MR. RIPLEY: It is not my intent to in
2 any way affect the payments that would be made
3 during the pendency of this proceeding. However,
4 since I have now heard that only those payments that
5 would be made for obligations from January 8th
6 forward, we have the period of time from January 1
7 through January 8th that my auditors, my
8 accountants, are going to say, Okay, where do I book
9 8/30ths, or the prorated amount, for the January
10 payment made in February? I am assuming that the
11 prorated account will be commencing January 8th,
12 forward. There will be 8/30ths of January that will
13 go into the normal PCA deferred account that will be
14 subject to a PCA audit and rate increase, et cetera,
15 under the normal PCA time period. That's the
16 question I was asking.
17 COMMISSIONER KJELLANDER: Mr. Ripley,
18 with that clarification, I think I even understand
19 that, and I appreciate that.
20 Commissioner Smith.
21 COMMISSIONER SMITH: I don't get it.
22 Would it be 8/30ths because in your books all months
23 have 30 days --
24 MR. RIPLEY: No.
25 COMMISSIONER SMITH: Or would it be --
22
COLLOQUY
1 MR. RIPLEY: Eight/thirty-firsts.
2 COMMISSIONER SMITH: -- 8/31sts?
3 COMMISSIONER KJELLANDER: Commissioner
4 -- Commissioner -- Mr. Hammond, I don't know that I
5 really want you to weigh in, but I think you have an
6 opportunity.
7 MR. HAMMOND: I think we're fine with
8 what's been represented.
9 COMMISSIONER KJELLANDER: Fair enough,
10 and I think that we can move forward on that.
11 Are there other preliminary matters
12 that need to come before us?
13 Okay. It is our intent that we would
14 put all the parties together now, including those
15 that are on the phone, to discuss any other issues
16 they think need to be dealt with with regards to
17 this case, as well as to establishing a schedule;
18 and I think at this point, this is the appropriate
19 time that we allow you to do that. So we'll go off
20 the record and the Commission will leave the room;
21 and when you've resolved some of those specific
22 issues and have a schedule put together, you'll
23 bring us back and we can move forward from there.
24 So with that, we're off the record.
25 (Recess.)
23
COLLOQUY
1 COMMISSIONER KJELLANDER: So we're
2 back on the record now, and before we left, we left
3 you to discuss scheduling issues, to hopefully get
4 back with us regarding the Agreement related to
5 payments on a going-forward basis, and then also if
6 there were any other issues that you needed to
7 discuss during that time frame. So I guess I'll
8 open it up and allow someone to hopefully brief us
9 as far as the progress in that specific meeting.
10 MR. HAMMOND: Chairman, and
11 Commissioner, the Statement of Understanding, I
12 think to address some of the concerns that were
13 raised, will be modified -- and clarify if I'm wrong
14 or correct if I'm wrong -- that Astaris LLC, Astaris
15 Idaho LLC, and FMC under the Agreement are
16 collectively known as "Astaris." So essentially any
17 reference to "Astaris" refers to all three of those
18 companies or entities.
19 I'm not -- I don't know if I have the
20 one draft, if there were some other changes I think
21 that Don had put in, and I don't think there are any
22 disagreements with regard to those. And some were
23 typos: A Decision to be issued no later than March
24 22 of 2002, and I think -- and a reference to a
25 Staff exhibit that has been prefiled in Paragraph C
24
COLLOQUY
1 of the Agreement -- or, the Statement of
2 Understanding.
3 But I think the main change is the
4 reference instead of parties to reference as
5 "Astaris."
6 I think that addresses the concerns
7 that were raised, and I'll turn it over to anybody
8 else if they have comment on that.
9 COMMISSIONER KJELLANDER: Is there any
10 comment on that? Is that an appropriate
11 representation?
12 Good. I see heads nodding.
13 Is that the way you see it,
14 Mr. Budge? Are you still with us?
15 Okay. Evidently, that silence means
16 he's gone.
17 MR. HAMMOND: He kind of comes in and
18 out sometimes. I'm not sure if --
19 COMMISSIONER KJELLANDER: Fair
20 enough. Then we can move on past that issue. Is
21 that correct?
22 MR. HAMMOND: Yes.
23 COMMISSIONER KJELLANDER: How about
24 scheduling?
25 MR. HAMMOND: As far as schedule, the
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1 parties here have discussed and agreed upon the
2 following:
3 By January 29th, Astaris, Idaho Power,
4 and all parties -- that would include Intervenors --
5 would prefile their testimony by January 29th, on
6 that day.
7 On February 8th by noon, no later than
8 noon, all parties with the exception of Staff would
9 file cross-answer or rebuttal.
10 By February 15th, by noon, no later
11 than noon, Staff would file its rebuttal.
12 February 21st and 22nd that the
13 parties propose that the Commission take this matter
14 up for hearing.
15 COMMISSIONER KJELLANDER: What was the
16 hearing date again?
17 MR. HAMMOND: February 21st and 22nd.
18 COMMISSIONER KJELLANDER: Okay. And
19 just as clarification, did you look at the
20 Commission's schedules and calendars?
21 MR. HAMMOND: Yes, I did. If there
22 was something I missed -- I didn't look at your
23 individual calendars, I looked at Jean's master, and
24 there was nothing penciled in for those days.
25 COMMISSIONER KJELLANDER: Okay. All
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1 right.
2 MR. HAMMOND: Posthearing Briefs to be
3 filed on or before March 8, 2002.
4 With regard to Discovery, the parties
5 agreed to seven-day turnaround on written
6 Interrogatories, with the exception of the last
7 period of time. Staff is going to agree to provide
8 a Response as to any Interrogatories that are filed
9 after it files its rebuttal. We would agree to get
10 our Responses, particularly to Astaris, no later
11 than noon on the 20th, February 20th.
12 COMMISSIONER KJELLANDER: Okay. Is
13 there anything else on the scheduling then?
14 MR. HAMMOND: The only other thing
15 that is not built into the schedule is, of course,
16 the Motion or Briefing that Astaris may file, and
17 that we would just request that if anybody does wish
18 to respond to that, that they be given the 14 days
19 to respond to their Briefing if that is
20 appropriate. I don't know when that matter would
21 come up for hearing, if that would just come up for
22 hearing on the day of evidentiary hearing or the
23 Commission should choose to set some other day.
24 COMMISSIONER KJELLANDER: We do have
25 two days set aside for hearings, so my assumption
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1 would be is that those -- the 21st, if we do move in
2 that direction, would likely be a reasonable date to
3 assume that any hearing on that matter would come
4 up.
5 Any other matters related to
6 scheduling?
7 MR. HAMMOND: I don't believe so. No,
8 I think I covered it.
9 COMMISSIONER KJELLANDER: Are there
10 any other concerns or comments from any of the other
11 parties regarding what Mr. Hammond has represented
12 with regard to scheduling?
13 None? That's good.
14 Commissioner Smith.
15 COMMISSIONER SMITH: Yes,
16 Mr. Chairman, I guess maybe I'm still jet lagged and
17 slow, but I guess I wanted to know two things:
18 First of all, is the Statement of
19 Understanding going to be filed in this case?
20 MR. HAMMOND: I believe that was the
21 purpose of it, the document.
22 COMMISSIONER SMITH: Super. So we'll
23 have that.
24 Now, I assume this last Brief you were
25 talking about is the one in which Astaris will claim
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1 that the Commission lacks jurisdiction to undertake
2 this case?
3 MR. HAMMOND: I believe so, but if
4 that needs to be clarified --
5 COMMISSIONER SMITH: I'm not
6 comfortable leaving that kind of floating around,
7 so, Mr. Chairman, if it would be permissible, I
8 would like to ask Astaris if they intend to file
9 such thing, and if they do, then let's get it in the
10 schedule so that if the Commission wants to have
11 Oral Argument, we can schedule that and we can be
12 done with the whole thing in March like the parties
13 would like us to.
14 COMMISSIONER KJELLANDER: If you would
15 like to respond?
16 MR. POMEROY: Thank you, Mr. Chairman.
17 Commissioner, it was our intention to
18 file a Brief with respect to the Commission's legal
19 authority. It was our intention to do that by the
20 end of this month. And in understanding the Staff's
21 point a moment ago about a 14-day turnaround on a
22 Reply Brief, we would be prepared -- we would like
23 the opportunity to respond to the Reply Brief, maybe
24 seven days thereafter, and at any point from then on
25 would be prepared to argue it by way of Oral
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1 Argument, and I'm certainly comfortable setting a
2 schedule. That was our original intent, in any
3 event.
4 COMMISSIONER KJELLANDER: Well if my
5 math is correct and you intend to file by the end of
6 this month and then we look at a 14-day response
7 period and then a seven-day period, that takes us up
8 right to about February 21st, okay. So I think that
9 we would be on track with that to establish if we
10 were going to have a Motion filed on that issue,
11 that we could deal with it as a first issue on
12 February 21st. Obviously, depending on how we go,
13 it would determine as to whether or not there needed
14 to be anything more occur on the 21st or 22nd.
15 Does that fit with what you were
16 looking at?
17 COMMISSIONER SMITH: Yes,
18 Mr. Chairman. I just wanted to get it nailed down
19 so that there wasn't a loose end.
20 COMMISSIONER KJELLANDER: Sounds
21 reasonable.
22 Further comments?
23 MR. POMEROY: Thank you, Mr. Chairman,
24 Mr. Commissioner -- Commissioner Smith. If you want
25 us to memorialize that comment to file it, we
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1 certainly can.
2 COMMISSIONER SMITH: I would just note
3 that we are capable of doing that in our Notice.
4 MR. POMEROY: Sure.
5 COMMISSIONER KJELLANDER: Are there
6 other issues that need to come before the Commission
7 today?
8 MR. RIPLEY: Yes, we have a couple,
9 Mr. Chairman, if this is the appropriate time.
10 COMMISSIONER KJELLANDER: This is.
11 MR. RIPLEY: First, we would point out
12 more for the record than anything else, and that is,
13 at this time, we have no -- Idaho Power Company has
14 no privity of Contract with FMC Corp. I would not
15 want the Pleadings that have been filed so far to
16 create a misunderstanding with the Commissioners.
17 Our Contracts are with Astaris, not with FMC, as far
18 as the Pocatello plant is concerned.
19 The issue that we believe is one that
20 we are not advocating but we believe that we should
21 call to the attention of the Commission, and that
22 is, if this were only a reduction in price for the
23 voluntary load reduction arrangement, the issue
24 would be simply whether the change in price is
25 sufficient to cause the Commission to revisit the
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1 voluntary load reduction. However, it would appear
2 that the issue is more complex than this, because in
3 this particular instance, the customer has agreed to
4 the voluntary load reduction, has now evidently shut
5 down, and the issue that we believe the Commission
6 should decide or at least say whether or not it is
7 an issue up front so we don't have to revisit this
8 proceeding later on is does the shutdown of the
9 facilities cause a revisitation of this Agreement
10 when coupled with the price reduction or even
11 separate from the price reduction?
12 Now, it has been Idaho Power Company's
13 experience that if there is one seminole issue of
14 law that the Idaho Supreme Court has always been
15 very consistent on -- and that is, that the parties
16 to the proceeding are entitled to know what the
17 issues are -- and I would submit that if you looked
18 at the Staff's filing and at the Commission's
19 Notice, it could be argued, we believe, that the
20 parties are not on notice that the voluntary
21 shutdown of the plant, if you will, is a subject
22 matter that the Commission desires to consider in
23 its deliberations.
24 Now, if you do not, then Idaho Power
25 Company understands and is not going to advocate
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1 that that is wrong, but we are pointing out to the
2 Commission that one could argue that the parties are
3 not on notice that the shutdown of the plant will
4 affect somehow the public interest deliberations
5 that the Commission desires to undertake in this
6 proceeding. So it's one of notice, and it's our
7 apprehension, quite frankly, that now that we
8 brought it to your attention, the Commission can
9 decide whether or not that is an issue or not, but
10 at least it won't be decided three months from now
11 and have someone argue, well, there was inadequate
12 notice and we'll have to do the whole thing all over
13 again. So that's why we raise it now.
14 COMMISSIONER KJELLANDER: Thank you,
15 Mr. Ripley.
16 Are there any comments related to the
17 issue raised?
18 None? Okay. Thank you.
19 Are there any other issues that need
20 to be brought before the Commission?
21 Any comments from members of the
22 Commission?
23 Hearing none, then I would think that
24 at least at this point, we are ready to adjourn this
25 prehearing conference. The Commission will issue an
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1 appropriate Order based on substantive discussion
2 that has occurred here, and I think we'll also be
3 awaiting the final signed Agreement in relationship
4 to the payments on a going-forward basis, and
5 certainly will take into consideration the comments
6 just made by Mr. Ripley with relationship to issues
7 related to adequate notice.
8 So unless there are other issues that
9 need to come before the Commission at this time, we
10 are adjourned.
11 (The hearing adjourned at
12 3:25 p.m.)
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14
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18
19
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21
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25
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