20170804Expedited Joint Protest and Joint Motion.pdf

Peter J. Richardson (ISB No. 3195)
Attorney for the J. R. Simplot Company
Gregory M. Adams (ISB No. 7454)
Local Attomey for the Renewable Energy Coalition
Richardson Adams, PLLC
515 N.27th Street
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
Gregory M. Adams (ISB No. 7454)
Richardson Adams, PLLC
515 N.27th Street
Boise, ID 83702
Telephone : 208.938.223 6
Fax: [phone]
[e-mail]
Local Counsel for Renewable Energy Coalition
Irion Sanger
Sanger Law, P.C.
I I 17 SW 53'd Avenue
Portland, OR 97215
Attorney for Renewable Energy Coalition
Michael C. Creamer (ISB No. 4030)
Preston N. Cater (ISB No. 8462)
Givens Pursley LLP
601 W. Bannock St.
Boise, ID 83702
Telephone: [phone]
Facsimile: (208) -388-l 300
Attorneys for Tamarack Energy Partnership
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
CASE NO. GNR-E-I7-02
IN THE MATTER OF THE APPLICATION
IDAHO POWER COMPANY TO REVIEW
THE SURROGATE AVOIDABLE RESOURCE
(sAR) METHODOLOGY FOR
CALCULATING AVOIDED COST RATES
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EXPEDITED JOINT PROTEST AND
JOINT MOTION IN OPPOSITION TO
MODIFIED PROCEDURE AND
JOINT MOTION TO CONVENE
TECHNICAL HEARING
ORIGINAL
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COMES NOW, the J. R. Simplot Company, Renewable Energy Coalition, and Tamarack
Energy Partnership hereinafter referred to as "Movants," and pursuant to the Idaho Public
Utilities Commission's ("Commission") Rules of Procedure, Rules 56,203,and256,IDAPA
31.01.01.56, 31.01.01 .203,31.01.01 .256.03, hereby move the Commission to schedule technical
hearings in the above captioned matter and not to proceed pursuant to its rules regarding
modified procedure pursuant to Rule 201 et. seq, For the reasons explained herein, Movants
respectfully request expedited treatment on their protest to modified procedure and request that
the Commission vacate the Notice of Modified Procedure issued in this proceeding within seven
days of this filing to prevent the premature efforts in preparation of comments that would
otherwise be due within 2l days of the Notice of Modified Procedure.
Rule 201 provides for modified procedure, "by written submissions rather than by
hearing" only when the Commission finds "that the public interest may not require a hearing to
consider the issues presented." For the reasons stated below, the Movants respectfully aver that
the legal standard this Commission has adopted for the use of modified procedure has not been
met. In addition, the public interest requires a hearing, and technical testimony, because the
issues presented are complex and potentially controverted such that written submissions, by
attorneys, will not be sufficient to create an adequate record upon which a decision can be
rendered in the public interest.
1. REQUEST FOR EXPEDITED TREATMENT
Movants respectfully request expedited treatment on their protest to modified procedure.
Specifically, Movants request that the Commission vacate the Notice of Modified Procedure
issued in this proceeding within seven days of this filing to prevent the premature efforts in
EXPEDITED JOINT PROTEST AND JOINT MOTION IN OPPOSITION TO MODIFIED
PROCEDURE AND JOINT MOTION TO CONVENE TECHNICAL HEARING
PAGE 2
preparation of comments that would otherwise be due within 2l days of the Notice of Modified
Procedure.
Rule 256 allows expedited consideration on a procedural motion if the party requesting
expedited treatment provides the facts supporting such expedited treatment and complies with
the notice provisions in Rule 256.02.b. See IDAPA 31.01.01 .256.03.
Expedited treatment is supported by the facts. Without expedited treatment of this aspect
of Movants' filing, all parties (including the utilities and staff) will be left to begin preparing
comments to be filed by the currently effective deadline of August 23,2017 . Good cause
therefore exists for expedited action on the procedural request here under Rule 256.
Additionally, the requested period of seven days provides more than the requisite two days in
Rule 256.02.b. for opposing parties to relay their position to the Commission Secretary.
Additionally, Movants have complied with the notice provisions for expedited treatment.
Counsel for J.R. Simplot made a good faith effort to notify all parties of this expedited request.
Counsel for Idahohydra, Tom Arkoosh, indicated he supports this motion, however he could not
be reached to sign the motion prior to hling. Counsel for Commission, Daphne Huang, and
counsel for Rocky Mountain Power, Yvonne Hogle, each received actual notice via telephone.
Counsel for Avista, Michael Andrea, and counsel for Idaho Power, Donovan Walker, did not
answer their telephones, but a voicemail was left notifying them of the motion for expedited
relief prior to f,rling the same. All parties were sent a copy of this filing via electronic mail.
2. THE LEGAL STANDARD FOR USE OF MODIFIED PROCEDURE IS
NOT MET
There is, of course, no provision in the Idaho Code specifically allowing for the use of
modified procedure by the Commission in prosecuting its dockets. However, the Idaho public
utilities law also does not specifically require an evidentiary hearing. Hence, the legal standard
EXPEDITED JOINT PROTEST AND JOINT MOTION TN OPPOSITION TO MODIFIED
PROCEDURE AND JOINT MOTION TO CONVENE TECHNICAL HEARTNG
PAGE 3
for modified procedure is both Commission created and Commission interpreted. The
Commission clearly articulated that standard in a recent docket in which the Northwest and
Intermountain Power Producers Association (NIPPC) objected to the use of modified procedure
in a contested matter. In response to NIPPC's objection to the use of Modified Procedure this
Commission ruled:
ln American Public Gas the D.C. Circuit held that the Federal Power Commission
(FPC) is not required to process all cases coming before it with formal hearings, to
include witness and cross examination. "Evidentiary submissions in written form may be
sufficient. [citation omitted, underscoring added by the Commission] The Circuit Court
further explained that:
The ability [of the FPC] to choose with relative freedom the procedure it will use
to acquire relevant information gives the Commission power to realistically tailor
the proceedings to fit the issues before it, the information it needs to illuminate
those issues and the manner of presentation which, in its judgment, will bring
before it the relevant information in the most efficient manner.
The procedure chosen by the Commission must of course give the parties fair
notice of exactly what the Commission proposes to do, together with an
opportunity to comment, to object, and to make written submissions; and the final
order of the Commission must be based on substantial evidence.l
Significantly, the D.C. Circuit Court opinion relied on by the Commission in denying NIPPC's
objection to the use of Modified Procedure made clear that the parties must have advance "notice
of exactly what the Commission proposes to do." This Commission relied on that rationale in
its ruling that:
Sufficient notice of exactly what the fldaho] Commission was considering was provided
to allow all interested parties an opportunity to participate. Ample opportunity was given
for the provide evidence in support of their positions.2
Order 32212 p.l0
Id. p. tr.
EXPEDITED JOINT PROTEST AND JOINT MOTION IN OPPOSITION TO MODIFIED
PROCEDURE AND JOINT MOTION TO CONVENE TECHNICAL HEARING
PAGE 4
I
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The Commission in this docket, by way of contrast with its established standard for the use of
Modihed Procedure, has not provided the parties with any idea of what it is "considering" nor
any idea of what it "proposes to do."
In fact, the "Application" that Idaho Power filed in this case does not meet the
requirements for an application under the Commission's rules, since it is titled a "Response and
Objection" filed in a different docket. Idaho Power's proposal is further confused by a
subsequent "Amended Application" it filed on June 27 ,2017 , after this Commission's initial
Notice of Application issued on June 8,2017, wherein Idaho Power appears make substantive
changes to its proposal by altering the reference gas price description it proposes and deleting an
aspect of its prior response and objection related to the "ICIRP methodology." The more recent
Notice of Modified Procedure Order No. 33831 refers only the "Application" and it is not clear
what, if any, impact the Amended Application has or what the final proposal is for which parties
are invited to comment.
Without a clean application or clearly proposed changes, it is not entirely clear what the
proposal is upon which Movants would submit comments under modified procedure. Clearly,
this Commission's policy on when to proceed on Modified Procedure is not satisfied in this
docket. In this circumstance, modified procedure is not appropriate.
3. MODIFIED PROCEDURE IS NOT IN THE PUBLIC INTEREST
This Commission's rules on Modified Procedure requires both a public interest finding
and an identification of the relevant issues: "The Commission may preliminarily find that the
public interest may not require a hearing to considered the issues presented in a proceeding."
This Commission's Rule allowing Modified Procedure presumes that the ooissues presented" are
suff,rciently known such that the Commission may therefore make its finding that resolution of
EXPEDITED JOINT PROTEST AND JOINT MOTION IN OPPOSITION TO MODIFIED
PROCEDURE AND JOINT MOTION TO CONVENE TECHNICAL HEARTNG
PAGE 5
those "issues presented" may be had without a hearing. In this docket, however, the "issues
presented" are vague and undefined. Idaho Power's "Application" was actually filed as an
objection in a different docket (IPC-E-17-17)that was restricted to just determining Idaho
Power's avoided cost rates paid to PURPA QFs for the coming year. The Commission restyled
the objection into an application and opened a generic docket to consider Idaho Power's initial
"objection" that has been redefined as an Application. Now the exact scope and implication of
Idaho Power's initial "Objection" is not clear.
Generic Dockets are not provided for in the Commission's rules, nor are they provided
for under the Idaho PUC laws. Hence, the exact scope of this "generic docket" is unrestricted
by law or rule.
The ostensible issue addressed by Idaho Power in its Objection a.k.a complaint is "the
use of the EIA's Henry Hub forecast, adjusted for Sumas and Idaho City Gate in the 2017 anntal
update to published avoided cost rates for Idaho Power."3 The J. R. Simplot Company petitioned
to intervene, noting that Idaho Power's Objection raises issues associated not only with avoided
cost pricing per se, but also with the prudence determination of the Company's energy
conservation and demand response programs.a tdaho Power did not object to the J. R. Simplot's
Petition to Intervene and Idaho Power made no claim that Simplot's Petition to Intervene
resulted in an expansion of the issues.
Thus, the issues in this docket clearly extend beyond just the proper natural gas forecast
to be used in determining avoided cost rates Idaho Power pays pursuant to its obligations under
PURPA. That said, the issues related to such a determination are complex, factually driven and
3 Response and Objection of Idaho Power Company at p. 8.
4 J. R. Simplot Petition to Intervene at pp. 2 - 3.
EXPEDITED JOINT PROTEST AND JOINT MOTION TN OPPOSITION TO MODIFIED
PROCEDURE AND JOTNT MOTION TO CONVENE TECHNICAL HEARING
PAGE 6
subject to significant divergence of opinion. It is not in the public interest to attempt to resolved
these complex issues via submission of comments, signed by attomeys without the benefit of
sworn testimony of experts in this complex field. The "applicant" (Idaho Power) should be
required to file direct testimony putting forth a prima facia case, subject to critical examination
and discovery rights. If, after examination of that testimony, the parties in fact conclude the case
could be resolved with responsive comments, the Commission and the parties could certainly
change course at that time. However, at this point, there is no evidentiary basis to even fully
understand Idaho Power's position or whether any expert in the field exists to support its
proposal.
The inclusion of the other two investor-owned utilities in this generic docket fuither
complicates the factual issues and makes a finding that proceeding under modified procedure
even less susceptible to a public interest finding. Indeed, none of the utilities have put forth
testimony supporting any change in the natural gas forecast used for determining avoided costs.
Because the issues are technical in nature it would be inappropriate to proceed without expert
testimony to serve as the foundation for any Commission decision.
In its Notice of Modified Procedure, the Commission observed that,
No party filed a motion asking the Commission to set such a hearing. Rules 202
and203 of the Commission's Rules of Procedure state that "persons desiring a
hearing must specifically request a hearing in their written protests or comments"
and state "reasons why modified procedure should not be used."s
It is, of course, premature at best to expect parties to specifically request a hearing and file
written protests to a Notice of Modified Procedure that has not even been issued. Rules 202 and
203 contemplate the procedure to be followed after a notice of modified procedure has been
5 Notice of Modified Procedure, Order No. 3383 | at p. 2.
EXPEDITED JOINT PROTEST AND JOTNT MOTION IN OPPOSITION TO MODIFIED
PROCEDURE AND JOINT MOTION TO CONVENE TECHNICAL HEARING
PAGE 7
issued - not before. The Movants hereto attempted to informally impress upon the utilities and
staff that modified procedure is inappropriate in a factually intense docket such as this - to no
avail. Hence the Movants have been forced to formally object to the use of Modified Procedure
and hereby respectfully request the Commission prosecute this case pursuant to a reasoned and
measured process that includes the prefiling of direct, reply and rebuttal testimonies along with
full rights of discovery.
Because the Commission has now issued its Notice of Modified Procedure it is necessary
to lodge this written protest to its use. At a minimum, the Commission should vacate its Notice
of Modified Procedure and schedule a prehearing conference to allow the parties to attempt to
specifically identiff the relevant issues, narrow the same if possible, and to establish a schedule
for completion of (ongoing) discovery and the lodging of testimony, rebuttal testimony and
schedule a hearing.
4. MODIFIED PROCEDURE WITH A 21-DAY COMMENT DEADLINE IS
INADEQUATE
Though the issues encompassed by this proceeding are not precisely clear, at this point it
appears that the proceeding will involve, at a minimum, analysis of different indices for natural
gas forecasting, nationwide; the relationship between futures and derivative trading market, such
as the Intercontinental Exchange, and natural gas forecast; and the relationship between natural
gas forecasts used in surrogate avoided rates and Idaho Power's Demand Side Management
programs.
Discovery from Movants and Staff has begun but is not yet complete. Substantial and
technical expert testimony is needed to fully and adequately present evidence and argument in
this proceeding. Limiting the proceeding to written comments, within a2l-day timeframe, will
not foster the fully considered, fully argued resolution this proceeding calls for.
EXPEDITED JOTNT PROTEST AND JOINT MOTION TN OPPOSITION TO MODIFIED
PROCEDURE AND JOINT MOTION TO CONVENE TECHNICAL HEARTNG
PAGE 8
Further, this case also raises important policy considerations that apply to all three
utilities that warrant additional time and factual development. Published avoided cost rates for
Idaho Power Company, Rocky Mountain Power and Avista have long been developed by
Commission staff using the SAR methodology in conjunction with the EIA Annual Energy
Outlook Reference Case mountain gas forecast. It would be a major change in Idaho's PURPA
policies, if Idaho Power's proposal is adopted and similar modified methodology is applied to
the other two utilities. If the PUC allows Idaho Power to use for avoided cost purposes a gas
forecast other that the EIA reference case in order to be consistent with its IRP gas forecast, the
same rules would likely apply to other utilities' IRP as well. Although PacifiCorp does not use
the EIA to forecast gas prices for its IRP, its IRP gas price forecast is generally similar to the
EIA gas price forecast scenario (the High Oil and Gas Resource and Technology scenario) that
Idaho Power used for its IRP. The resulting effect of aligning the gas price forecast for small QF
avoided cost prices with the gas price forecast proposed by the utilities for their IRP purposes
would be large reductions (approximately l5%) in avoided cost prices. This type of permanent
and notable change that applies to all three utilities should not be made on an expedited basis and
without the ability of the parties to review and vet its factual underpinnings.
Therefore, if the Commission is not inclined to hold a technical hearing or require any
technical evidence be presented by Idaho Power, Movants respectfully request at least 45 days
for initial comments and2l days for rebuttal.
WHEREFORE, the J. R. Simplot Company, Renewable Energy Coalition, and
Tamarack Energy Partnership respectfully request that this Commission vacate its Notice of
Modified Procedure in this proceeding as detailed herein.
EXPEDITED JOINT PROTEST AND JOTNT MOTION IN OPPOSITION TO MODIFIED
PROCEDURE AND JOINT MOTION TO CONVENE TECHNICAL HEARING
PAGE 9
DATED this 4th day of August 2017
Peter J (ISB No. 3l9s)
Richardson Adams, PLLC
515 N. 27th Street
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
Attorney for the J. R. Simplot Company
Michael C. Creamer (ISB No. 4030)
Preston N. Carter (tSB No. 8462)
Givens Pursley LLP
601 W. Bannock St.
Boise, ID 83702
Telephone: [phone]
Facsimile: (208) -388-1 300
for Tamarack Energy Partnership
M. Adams (ISB No. 7454)
Richardson Adams, PLLC
515 N. 27th Street
Boise, ID 83702
Telephone : 208.93 8.223 6
Fax: [phone]
gr e g@richard sonadams. c om
Local Counsel for Renewable Energy Coalition
Irion Sanger
Sanger Law, P.C.
I I l7 SW 53'd Avenue
Portland, OR 97215
Attorney for Renewable Energy Coalition
EXPEDITED JOTNT PROTEST AND JOINT MOTION IN OPPOSITION TO MODIFIED
PROCEDURE AND JOINT MOTION TO CONVENE TECHNICAL HEARING
PAGE IO
CERTIFICATE OF SERVICE
I certifu that on August 4, 2017, a true and correct copy of the EXPEDITED JOINT
PROTEST AND JOINT MOTION IN OPPOSITION TO MODIFIED PROCEDURE AND
JOINT MOTION TO CONVENE TECHNICAL HEARING in Docket No. GNR-E-17-02 was
served via electronic mail to the following:
Commission Secretary
Diane Holt
Idaho Public Utilities Commission
P.O. Box 83720
Boise, D 83720-0074
[e-mail]. gov
Daphne Huang
Idaho Public Utilities Commission
47 2 W est Washington Street
Boise, D 83702
Daphne.haune@puc. idaho. eov
Donovan E. Walker
Idaho Power Company
l22l W. Idaho Street
PO Box 70
Boise, D 83707
dwalker@ idahopower. com
[e-mail]
Michael Darrington
Idaho Power Company
l22lW.Idaho Street
PO Box 70
Boise, D 83707
mdarrin grton@ idahopower. com
Yvonne Hogle
Ted Weston
PacifiCorp d,/b/a Rocky Mountain Power
201 S. Main Street, Suite 2300
Salt Lake city, uT 84116
Yvorure. ho gle@paci fi ccorp.com
Ted.weston@pacfi ccorp.com
Daniel MacNeil
PacifiCorp d/b/a Rocky Mountain Power
825 NE Multnomah Street
Portland, OR 97232
Daniel.macneil@Facifi corp.com
Jeffrey K. Larsen, V.P.
Regulation & Gov. Affairs
PacifiCrop d/b/a Rocky Mountain Power
201 S. Main Street, Suite 170
Salt Lake City, UT 841l6
Jeff. larsen@Facifi corp. com
J.R. Simplot Company
c/o Peter J. Richardson
Richardson Adams, PLLC
515 N.27ft Street
PO Box 7218
Boise, D 83702
peter@richardsonadams. com
Dr. Don Reading
6070 Hill Road
Boise,ID 83703
dreadin g@mindsprin g. com
Idahydro
c/o C. Tom Arkoosh
Arkoosh Law Offices
PO Box 2900
Boise,ID 83701
Tom. arkoo sh@ arkoosh. com
Renewable Energy Coalition
c/o Gregory M. Adams
Richardson Adams, PLLC
515 N. 27ft Street
P O Box 7218
Boise, D 83707
gres@richardsonadams. com
Renewable Energy Coalition
c/o Irion Sanger
Sanger Law, PC
1117 SE 53'd Avenue
Portland, OR 97215
[e-mail]
n
Clint Kalich, Manager
Resource Planning & Analysis
Avista Corporation
l4l I East Mission Street, MSC-7
Spokane, WA 99202
[e-mail]
Michael Andrea, Senior Counsel
Avista Corporation
l4l I East Mission Street, MSC-33
Spokane, WA99202
[e-mail]
Preston N. Carter