20111202Motion to Strike.pdf

DONALD L. HOWELL, II
KARL T. KLEIN
DEPUTY ATTORNEYS GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
472 WEST WASHIGTON STREET
POBOX 83720
BOISE, ID 83720-0074
Idaho Bar Nos. 3366 and 5156
Tele: [phone]
[phone]
Fax: [phone]
E-mail: don.howell(ßpuc.idaho.gov
karl .klein(ßpuc. idaho. gov
RECE!VED
lOll DEC -2 PM 2: 05
Attorney for Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF IDAHO POWER
COMPANY'S APPLICATION FOR
AUTHORITY TO INCREASE ITS RATES
AND CHARGES FOR ELECTRIC SERVICE
IN IDAHO
)
) CASE NO. IPC-E-ll-08
)
) STAFF MOTION TO STRIKE
) THE SURRBUTTAL
) TESTIMONY OF CAP AI
COMES NOW the Commission Staff by and through its attorneys of record, Donald
L. Howell, II and Karl T. Klein, Deputy Attorneys General, and moves to strike the November
28, 2011,1 Surebuttl Testimony of Teri Ottens offered by the Community Action Parership
Association of Idaho (CAP AI). The Commission should strike the testimony because it is
untimely and violates the Commission's Scheduling Order No. 32316 (setting November 16,
2011 testimony deadline); CAPAI has not sought permission from the Commission to introduce
the 18 pages of surebuttl testimony; and offering surebuttl testimony at this stage of
proceeding (less than 7 days before the hearng) works a hardship upon Staff and other paries.
BACKGROUND
In its Notice of Application, the Commission set a deadline for intervention in this
rate case. The Notice stated also that after the Commission had granted intervention, the paries
i The surebuttal was electronically served on Staff and òther parties after the close of business on Monday,
November 28, 2011.
STAFF MOTION TO STRIKE
THE SURRBUTTAL TESTIMONYOF CAPAI 1
were to convene an informal conference "to determine the scheduling of discovery, testimony,
technical hearings, and other matters." Order No. 32272 at 5. The scheduling conference was
held on July 20,2011, and was attended by most paries including CAPAI. Order No. 32316 at
1.
Based upon the "agreement of the paries at the prehearing conference" the
Commission issued the following schedule to process this case:DATE ACTIVITY
August 31, 2011 Settlement conference
September 8, 2011 Continued settlement (if necessary)
October 7,2011 Staff/ntervenor prefie direct testimony
October 25,2011 Deadline for discovery requests
November 16, 2011 Rebuttl prefie testimony (all parties)
December 5-6, 2011 Technical Hearing
Order No. 32316 at 1_2.2 As indicated above, Staff and intervenors were to prefie their direct
testimony on October 7, 2011, and all paries were to fie simultaneous rebuttal testimony on
November 16,2011. The schedule does not provide for the filing of any surebuttl testimony.
As indicated above, the Commission's Scheduling Order also provided for two
settlement conferences. All paries, including CAP AI, paricipated in the settlement conferences
on August 31 and September 8, 2011. Order No. 32380 at 1. Following the settlement
conferences, all parties except CAP AI entered into a Stipulation that proposed to settle many but
not all issues in this rate case.
On October 13, 2011, the Commission issued a Notice of Parial Settlement that
described the Settlement Stipulation and also the issues on which the paries were unable to
reach agreement. In paricular, the Commission's Notice disclosed that the paries were unable
to agree on ''the amount of fuding for the Company's low-income weatherization program."
Order No. 32380 at 3. On October 7, 2011, CAP AI prefied its direct testimony seeking a 125%
increase in fuding for low-income weatherization (from $1.2 milion to $2.7 milion). Until
CAP AI filed its testimony seeking to increase weatherization fuding by $1.5 milion, there was
2 The dates of the technical hearing were set in Order No. 32380 issued October 13,2011.
STAFF MOTION TO STRIKE
THE SURRBUTTAL TESTIMONYOFCAPAI 2
no evidence in the record that CAP AI sought to increase fuding by that amount. Based upon
the schedule, Staff filed its rebuttl testimony on November 16, 2011.
ARGUMENT
CAP AI's surrebuttl testimony is improper and should be stricken for several reasons,
First, as set out above, the Commission's Scheduling Order No. 32316 did not allow for
surebuttL. The rebuttl testimony deadline for all paries (including CAP AI) was November
16, 2011. Moreover, CAPAI is an intervenor and should not be allowed to circumvent the
Commission's Order by filing untimely surebuttl testimony not contemplated by the
Scheduling Order.
Second, CAP AI did not fie a motion seeking procedural relief to file surebuttal
testimony. If CAPAI felt that it was necessar to file surrebuttl testimony addressing Ms.
Donohue's rebuttal testimony fied November 16,2011, then CAPAI should have fied a motion.
CAP AI offers no explanation why it could not have filed a motion seeking such procedural
relief. Rule 256.03, IDAPA 31.01.01.256.03.3
Finally, offering surebuttal less than seven days before the hearing works a hardship
on Staffs preparation for this case. Although CAPAI claims Ms. Donohue's testimony raises
certain issues "for the first time," the surebuttal testimony acknowledges that CAP AI "was
aware that Staff had certn reservations about CAPAI's position (to increase weatherization
funding). Ottens Surebuttal at 3, 1i.5-1O. In addition, Ms. Ottens admits that she was aware of:
(l) Staff s concerns about increasing weatherization fuding based upon CAP AI's comparison of
"per capita LIWA funding level(s) between Idaho Power and Avista"; and (2) Staffs doubts
about the cost-effectiveness of Rocky Mountain Power's low-income weatherization program."
Id at 4, 1l.6-9, 17-21. The Commission allowed paries ample time to conduct discovery and
otherwse prepare their cases. CAP AI did not formally or informally ask Staff about its position
on LIW A. CAP AI's failure to explore Staff s potential testimony on LIW A does not justify
CAPAI's attempt to obtain special privileges through the filing of supplemental, untimely
surebuttal testimony.
3 In addition, CAP AI has not explained why it did not at least fie a motion to accept its supplemental testimony
when it served Ms. Ottens' prefie surebuttl testimony on the paries.
STAFF MOTION TO STRIKE
THE SURRBUTTAL TESTIMONYOF CAPAI 3
PRAYER
Based upon the reasons stated above, Staff respectively requests that the Commission
not allow CAP AI to offer its prefied surebuttl testimony this case.
Respectfully submitted this 2 ~ day of December 2011.
Donald L. Howe I
Deputy Attorney General
bls:N:IPC-E-1 I-08_dh_Motion to Strike
STAFF MOTION TO STRIKE
THE SURRBUTTAL TESTIMONYOFCAPAI 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 2nd DAY OF DECEMBER 2011,
SERVED THE FOREGOING STAFF MOTION TO STRIKE THE SURRBUTTAL
TESTIMONY OF CAP AI, IN CASE NO. IPC-E-II-08, BY E-MAILING A COPY
THEREOF, POSTAGE PREPAID, TO THE FOLLOWING:
LISA D NORDSTROM
DONOV AN E WALKER
JASON B WILLIAMS
IDAHO POWER COMPANY
PO BOX 70
BOISE ID 83707-0070
E-MAIL: lnordstrom~idahopower.com
dwalker~idahopower.com
jwillams~idahopower.com
PETER J RICHARDSON
GREGORY MADAMS
RICHARDSON & O'LEARY
PO BOX 7218
BOISE ID 83702
E-MAIL: peter~richardsonandoleary.com
greg~richardsonandolear.com
ERIC LOLSEN
RACINE OLSON NYE ET AL
PO BOX 1391
POCATELLO ID 83204
E-MAIL: elo~racinelaw.net
ARTHUR PERRY BRUDER
ATTORNEY -ADVISOR
US DEPT OF ENERGY
1000 INDEPENDENCE AVE SW
WASHINGTON DC 20585
E-MAIL: Arhur.bruder~hg.doe.gov
GREGORY W SAID
VP REGULATORY AFFAIRS
IDAHO POWER COMPANY
PO BOX 70
BOISE ID 83707-0070
E-MAIL: gsaid~idahopower.com
DR DON READING
6070 HILL ROAD
BOISE ID 83703
E-MAIL: dreading~mindspring.com
ANTHONYYANKEL
29814 LAKE ROAD
BAY VILLAGE OH 44140
E-MAIL: tony~yanel.net
DWIGHT ETHERIDGE
EXETER ASSOCIATES
10480 LITTLE P ATUZENT PKWY
STE 300
COLUMBIA MD 21044
E-MAIL: detheridge~exeterassociates.com
CERTIFICATE OF SERVICE
E-MAIL ONLY:
STEVE A PORTER
US DEPT OF ENERGY
E-MAIL: steven.porter~hg.doe.gov
KURT JBOEHM
BOEHM KURTZ & LOWERY
36 E SEVENTH ST STE 1510
CINCINATI OH 45202
E-MAIL: kboehm~bkllawfrm.com
E-MAIL ONLY:
RICHARD E MALMGREN
SR ASST GENERAL COUNSEL
MICRON TECHNOLOGY INC
E-MAIL: remalmgren~micron.com
E-MAIL ONLY:
THORV ALD A NELSON
MAR A DAVIDSON
FRED SCHMIDT
HOLLAND & HART LLP
E-MAIL: tnelson~hollandhar.com
madavidson~hollandhar.com
fschmidt~hollandhart.com
Inbuchanan~hollandhar.com
BENJAMIN J OTTO
ID CONSERVATION LEAGUE
710N 6TH ST
BOISE ID 83702
E-MAIL: botto~idahoconservation.org
E-MAIL ONLY:
JOHN R HAMMOND JR
BATT FISHER PUSCH
& ALDERMAN LLP
E-MAIL: jrh~battfisher.com
KEVIN HIGGINS
ENERGY STRATEGIES
215 S. STATE ST SUITE 200
SALT LAKE CITY UT 84111
E-MAIL: khiggins~energystrat.com
ELECTRONIC/ CD/ PAPER SERVICE
MARY V YORK
HOLLAND & HART LLP
101 S. CAPITAL BLVD., SUITE 1400
BOISE,ID 83702
E-MAIL: myork~hollandhar.com
BRAD M PURDY
ATTORNEY AT LAW
2019N 17TH STREET
BOISE ID 83702
E-MAIL: bmpurdy~hotmail.com
KEN MILLER
SNAKE RIVER ALLIANCE
BOX 1731
BOISE ID 83701
E-MAIL: kmiler~snakeriverallance.org
CERTIFICATE OF SERVICE
NANCY HIRSH
POLICY DIRECTOR
NW ENERGY COALITION
811 1 ST AVE., SUITE 305
SEATTLE WA 98104
E-MAIL: nancy~nwenergy.org
SCOTT PAUL CEO
HOKU MATERIALS INC
ONE HOKU WAY
POCATELLO ID 83204
E-MAIL: spaul~hokucorp.com
DEAN J MILLER
McDEVITT & MILLER LLP
PO BOX 2564
BOISE ID 83701
E-MAIL: joe~mcdevitt-miler.com
heather~mcdevitt-miler.com
~\:~i
SECRETARY
CERTIFICATE OF SERVICE