20180709Decision Memo.pdf

DECISION MEMORANDUM
TOr COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
FROM:BRANDON KARPEN
DEPUTY ATTORNEY GENERAL
DATE: JULY 9,2018
SUBJECT: PETITION Of "AVISTA CUSTOMER GROUP' FOR INTERVENTION
IN THE AVISTA.HYDRO ONE MERGER;
cAsE NOS. AVU-E-17-09, AVU-G-17-05.
On July 19,2017 , Avista announced that it had entered into a merger agreement with
Hydro One. On September 14,2A17, the Applicants filed the above captioned joint application
for approval of the merger. Approval of the Application would result in Avista becoming a
wholly owned subsidiary of a Hydro One holding company.
On October 5, 2017, the Comrnission issued an Order providing notice of the filing
and setting a deadline for interventions of October 26,2017. Order No. 33903. The
Commission granted timely-filed motions to intervene from Idaho Forest Group, Clearwater
Paper, Idaho Conservation League (lCL), the Community Action Partnership Association of
Idaho (CAPAI), and the Washington and Northern ldaho District Council of Laborers
(WNIDCL). Order Nos. 33914, 33916, 33931, and 33932. On December 20, 2017, the
Commission scheduled a Technical Hearing date of June27,2018. Order No. 33950.
After settlement discussions amongst the parties, on April 13, 2018, the Applicants
filed a Motion for Approval of Stipulation noti$ing the Commission that all parties had reached
a full settlement, and requested that the settlement be processed by modified procedure. The
Commission granted that request, vacated the technical hearing, and issued notice of proposed
settlement and a comment deadline of June 20,2018, and a reply deadline of June 27,2018.
Order No. 34061. Commission Staff, CAPAI, and the Idaho Conservation League filed timely
comments in support of the Stipulation.
IDECISION MEMORANDUM
After receiving ample public input on the proposed merger, on June 22, 2018,
Commission Staff recommended that the Commission reschedule the technical hearing to
address concems and issues raised by the public. The Commission likewise scheduled a public
hearing confined to those issues.
On June 27, 2018, a late motion to intervene was filed by the "Avista Customer
Croup (ACG)," which identified itself as "an unincorporated nonprofit association, composed of
utility ralepayers, taxpayers and concemed citizens." The group also filed untimely comments
opposing the proposed settlement. The group claimed its intervention was timely because it is at
least fourteen days before the scheduled hcaring. Petition to Intervene at2-3.
LATE PETITIONS TO INTERVENE
Commission Rules provide that a petitioner seeking intervention must state its "direct
and substantial interest . . . in the proceeding." IDAPA 31.01.01.072. Petitions to intervene that
are not timely filed "must state a substantial reason for delay." IDAPA 31.01.01.073. "The
Commission may deny or conditionally grant petitions to intervene that are not timely filed for
failure to state good cause for untimely filing, to prevent disruption, prejudice to existing parties
or undue broadening of the issues, or for other reasons," Id. Also, "lntervenors who do not file
timely petitions are bound by orders and notices earlier entered as a condition of granting the
untimely petition." /d.
ACG'S PETITION FOR INTERVENTION
ACG stated it is "is an unincorporated nonprofit association, composed of utility
ratepayers, taxpayers and concemed citizens, including electrical and natural gas utility service
customers of the Co-Applicant, Avista Corporation." Petition at 2. ACG explained that its
members "stand to be impacted by potential cost or rate increases resulting from the proposed
merger." Id. As a result, ACG stated that it has a direct and substantial interest in the merger
docket. Id. ACG ignored Commission Order No. 33903, and claimed its petition is timely
because is it more than fourteen days before the upcoming technical hearing.
Alternatively, ACG stated that if the Commission determined that its petition is
untimely, it should be granted nonetheless, "for good cause." Id. at 3. ACG stated that its late
petition was filed because its group "was only recently formed, in response to the proposed
merger and settlement." /d. According to ACC, "[n]o other party can adequately represent the
interests of ACG," and that its "participation will assist the Commission with its duty to
independently review the settlement proposal...! Id. ACG concluded that its "intervention
7DECISION MEMORANDUM
would not disrupt the proceedings, prejudice the existing parties, or unduly broaden the issues;
and there is good cause for granting intervention." Id. at 4.
On July 6, 2018, Avista filed a response to the proposed ACG intervention. Avista
raised several concerns with the proposed intervention. Primarily, Avista questioned whether
ACG satisfied the requirement of Rule 74, as there is no clear answer of whom the ACG purports
to represent, if they are Avista customers or even ldaho residents. Response at l-2. Further,
Avista submitted that the ACG's self-described status description indicates that the group "will,
in fact, unduly broaden the issues.'* Id. at2.
Nonetheless, noting the extent of issues with ACG's intervention, the Applicants "do
not object to the proposed intervention, so long as the issues are not unduly broadened beyond
what was set forth in the ACG Comments filed on June 27, 2018." Id. at3.
Applicants also frled a motion for leave to file reply comments to ACG's written
comments. Included with the motion are the proposed comments in response to ACG's written
comments. Applicants claimed that good cause exists for the Commission to allow the
Applicants' reply to ACG, and that the "Reply Comments squarely address the ACG
Comments," and that "[t]he creation of a better record will be served by entertaining these
comments, further answering the expressed concerns of the ACG." Motion al2-3,
COMMISSION DECISION
Does the Commission wish to find that ACG has timely intervened?
If not, does the Commission wish to find that ACC has shown good cause for its late
petition, identified direct and substantial interest in this case, and that its intervention will not
unduly broaden the issues, and thus grant the late petition to intervene and accept ACG's
comments?
Does the Commission wish to grant Avista's motion to reply to ACG's comments?
If the Commission grants ACC's request to intervene, does the Commission wish to
add any conditions to that intervention? (Limitations on discovery, witnesses, participation at the
technical hearing?)
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DECISION MEMORANDUM 3
General