20111206Response.pdf

Brad M. Purdy
Attorney at Law
2019 N. 17th St.
Boise, Idaho 83702
[phone]
Cell: [phone]
Fax: [phone]
RECIE/vcr,""j,'"(i.,,,r':
zor I DEC -5 AM 8: 20
HAD DELIVRED
December 4, 2011
Jean Jewell
Secreta, Idao Public Utilties Commssion
472 W. Washigton St.
Boise,ID 83702
Re: Case No. IPC-E-08-11: CAP AI Response to Stas Motion to Stre CAP AI's
Surebutt Testiony
Dear Ms. Jewell:
Included herewith is the origina and seven (7) copies of Communty Action Parership
Association of Idaho's Response to Stas Motion to Strke CAPAI's Surebuttl
Testimony (ofTeri Otens). Per an email I sent to you yesterday (Sunday, Dec 4, 2011), I
have previously served ths Response on all pares, and you, via electronic maiL. Th
you for your acceptace of this filing.
Brad M. Purdy
Attorney at Law
BarNo. 3472
2019 N. 17th St.
Boise,ID. 83702
[phone] (Land)
[phone] (Fax)
bmpurdy(fhotmail.com
Attorney for Petitioner
Communty Action Parership
Association of Idahn
CE l f:i)
inii DEC -S AM 8: 20
BEFORE TH IDAHO PUBLIC UTITS COMMSSION
IN TH MATTR OF TH APPLICATION
OF IDAHO POWER COMPANY FOR
AUTHORITY TO INCREASE ITS RATES
AN CHAGES FOR ELECTRC SERVICE
TO ITS CUSTOMERS IN TH STATE OF
IDAHO
)
) CASE NO. IPC-E-II-08
)
)
) COMMTY ACTION
) PARTNRSHI ASSOCIA-
) TION OF IDAHO'S REPLY TO
) STAFF'S MOTION TO STRKE
)
)
COMES NOW, the Communty Action Parership Association ofIdao (CAPM1, by
and though its attorney of record, Bra M. Pudy, and in response to Stas Motion to Stre the
Surebutt Testimony of CAP AI (Ms. Teri Ottens), states as follows:
In support of its motion to ste Ms. Otns' surebutt, Sta argues thee points, all of
which fail as a matter of law, equity and practicality. Stas thee points are: 1) scheduling
Order No. 32316 "did not allow for surebutt;" 2) CAPAI did not file amotion accompanying
the surebutt ofTeri Otns, and; 3) the tig of Ms. Ottens' surbutt "works a hardship on
Stas prepartion for ths cae."
1. Surrebuttal Testiony Is a Matter of Eguity Not Procedural Technicality.
Though it is not wrtten into the Commssion's proceur rues, the us of "surebutt"
has ben allowed by the Commssion for many year where circumstces justify it. A brief
CAPAI'S RESPONSE TO STAFF'S MOTION TO STR 1
search of the Commssion's "Orders Arhive" alone using the word "surebutt" reveals
numerous Orders spang many yea, includig those in the reent pat, and involving a
myrad of scenaros in which surbutt testiony was allowed by paries. Obviously, the
Commssion is well aware of ths long-stadig practice and can tae Offcial Notice of relevant
Orders, rues, and policies. i
CAP AI points out the foregoing simply beause the natue of Stas Motion to Strke
seems to suggest that there is somethg inately unque or improper about the fiing of
surebutt testiony. The Commssion is obviously best suited to determe under what
circumtaces surebuttal should be alowed. CAP AI respectfuly submits that the single most
importt crterion for allowig surebutt should be tht equity jusfies it. Thoug scheduling
Order No. 32316 does not specifically "allow" surebutt as Sta notes, neither does it disallow
it. It is often the natue of surebutt tht somethng unexpected or unusual occured that
justifies allowig a par to respond to the positions taen by another. Afer all, the ter
"surebutt" is based on the word "surebutter" and is simply a plaitiffs response to a
defendat's position.2 As discussed below, CAP AI is effectively in the position of a plaitiff in
ths respect regardig low-income weatherition fudig.
In no maner is CAP AI attemptig to "circumvent the Commssion's (scheduling) Order"
as claimed by Staff. Motion To Strike, p. 3. CAP AI is simply respondig to the fact that Staff
waited until rebuttl to present its dirct case on the issue of LIW A fudig. Ths alone justifies
the fiing of surbutt by CAP AI. The absence of a specific provision in Order No. 32316
pertning to surebutt should not, in itself, have any bearg on the issue.
i Rule 263, IDAPA 31.01.01.263.
2 Black's Law Dictonar.
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 2
2. Filg Surrebuttal Without a Motion Has No Practical Signcance In This Case.
Stafs second basis for its Motion is that CAP AI filed Ms. Oten' surebuttal without a
formal motion. It is tre that no motion was filed with Ms. Ottens' surebutt. CAP AI neither
ignored ths techncality nor presumed that it had an unettered right to fie surbutt. The
practical effect of ths fact, however, makes utterly no diference in ths case. Ms. Otens'
Surebutt was fied Monday, November 28,2011, one week prior to hearg. Under the
hured circumstaces of ths cas, CAP AI reasoned tht by the time it was able to file Ms.
Ottens' surebutt, a motion was not feasible and would actuly reduce the amount of time that
Staff and other paries had to review the surebuttl and prepare for hearg accordingly.
Procedural Rule 256 requies tht other pares have two weeks to respond to a motion
uness the moving par demonstrtes that it has taen cert procedural steps and tht
appropriate circumstces exist. In no event, however, shal the Commssion grt a motion in
less than two workig days aftr receipt by the Commssion Secreta and notice to other paries
absent "extaordinar circumstaces.,,3 Even ifCAPAI had filed a motion seekig authority to
file surebutt to Ms. Donohue's rebutt, the earliest tht the Commssion could theoretically
have rued on the motion puruat to Rule 256, absent a showig of "extordinar
circumstaces" would have been Thursdy, December 1,2011, thee days after the date Ms.
Ottens' surebutt was actuly fied.4 Ths would have given Sta and others virtlly no time
to review and respond to the surebutt testimony until the end of the week. Stamost certnly
have moved to stre on tht basis alone. The most expeient, logical, and fortght procedure
for CAP AI to put fort Ms. Otens' surebutt, therefore, was to file it as soon as it was
3 IDAPA 31.01.01.256(2)().
4 Though Ms. Donohue's rebutl was fied November 16,201 i, it wa not available to CAPAl, as a praccal matter,
until November i 7. Two weeks from November i 7 is December i, 20 i 1.
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 3
prepared, giving Sta and other pares the greatest amount of time to review, respond, and
object if they desired. A motion filed acompayig the testimony would have changed nothg.
Finally, CAP AI notes that, for its pa Sta waited until late Friday to file its Motion
although Sta received the surebutt by email on Monday, November 28. Stas Motion does
not even seek expedited relief puruat to the explicit requiements of Rule 256(2)(b). Even if
Staf had sought expedited treatment of its Motion, it failed to provide CAP AI and other pares
two workig days to respond as requied by Rule 256(2)(b) and the Motion should be rejected on
tht basis.
At the ver least, Sta could have notified CAP AI's counel of its objecton to the
testimony at any tie afer the surebutt was filed. CAP AI did not beome aware of Stas
Motion until Satuday, while preparg for Monday's hearg. A simple phone cal from Stafs
counsel would have alowed CAPAI to submit a wrtten response prior to day's end on Friday.
CAP AI believes, however, that ths issue is far too importt to hige on a procedural
techncality. As it is, the Commssion will presumably have to wait until Monday morng on
the day of hearg to review ths Response and make an expedited ruing. Agai, techncalities
should not govern but if they do, then Sta should be requied to accept the consequences of its
own arguents and the very procedural rues it cites.
3. CAP AI's Surrebuttal Does Not Work an Undue Hardship on Staff.
A. Ms. Donohue's Rebuttl Constitutes Signifcant Departre From Prior Staff
Policy.
Stafs contention that fiing surbutt one week prior to the hearg in ths case "works
a hardship on Stas prepartion for ths cas" pats a misleadg pictue under the actu facts
of ths case. First, becaus CAP AI effectively cares the burden of proof on the issue of LIW A
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 4
fuding, it should be entitled to have the fial say. All that Ms. Otens' surebutt contain is a
response to Ms. Donohue's new theories and positions and does not advance anytg new on
behalf of CAP AI. In fact, the thst of the surebutt is to explain the unaiess that results
from using Ms. Donohue's new theories as a basis for delayig much neeed relief for Idao
Power's low-income customers. CAP AI's position in ths respect is hardly new to Sta. Thus,
the "hadship" Sta refers to is tht its legal counel ha a week to prepare for cross-examnation
of the surbutt. Because Ms. Ottens was simply responding to Staffs new theories and
position, however, the surebutt conta nothg new and would requi litte or no "hardship
on Stafs preparation for the case."
Second, Ms. Otens' surebutt creates far less hadship for Sta than Ms. Donohue's
rebutt did for CAP AI. As explained in detal by Ms. Otens in her surubtt, the testiony of
Ms. Donohue constitute a "depare"s from Stas position on LIW A fuding in genera and
Idaho Power in parcular and "rases cert issues and/or makes cerin recommendations to the
Commission tht bear diectly on CAP AI's involvement in ths case." Surebuttal Testimony of
Teri Ottens, p. 2, Ins 19-21. Ms. Otens fuer noted tht "(n)o Stawitness submitted direct
testimony addressing the same issues and contag the same recommendations as those
addressed and contaed in Ms. Donohue's rebutt." Id at Ins 21-23. Ms. Otens concluded that
"(i)n fact, it is fai to say that Stas diect testionies simply supported the proposed settlement
stipulation in ths case to which CAP AI is not a par but did not address the priar issue of
concern to CAP AI and its constituents. Thus, CAP AI had no way to anticipate the scope, natue
and extent of the positions Stahas now taen though Ms. Donohue's rebutt and had nothg
to rebut as of the rebutt testiony dealine. CAP AI, therefore, filed no rebutt." Id. at pp 2
(Ins 23-24) through p.3 (Ins 1-4).
5 Surrebutal ofT. Otens, p. 5, In 1.
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 5
To describe the many ways in which Ms. Donohue's rebutt testimony consttutes a
depare from historical Sta policy and positions would make ths Respons too lengy. The
most obvious example though is Ms Donohue's proposal that the Commssion completely
disregard the priciple of "party" of LIW A fudig between Idao Power, A VISTA and Rocky
Mounta. Ms. Donohue's relevant testimony is as follows:
Q. Do you agree tht the Commssion should seek to att party among
utilities as dermed by Ms. Otens?
A. No. It makes more sense to provide simlar fudig based on need,
not on the basis of tota residential utility customers as proposed by Ms.
Ottens.
Reb. Test. S. Donohue, p.4, Ins 3-7.
Ironically, Ms. Donohue goes on to suggest that the Commssion bae its LIW A fuding
ruing in ths and futu cass on factors such as the number oflow income customers (for each
utilty), the number of homes needing weatherition and povert rates. Id at p. 4, Ins 17-19. As
noted in Ms. Otens' surbutt, ths is precisely the crteria CAP AI has always proposed
reliance on.
Regarding the priciple of paty, CAPAI ha discusse ths concept with Sta for nearly
a decade, if not longer, and has always had good reasn to believe that party was an importt
consideration for Staf as well, and possibly sometg tht the Commssion took into
consideration, along with other factors. If the Commission try believes that party has
absolutely no relevance to LIW A fuding decisions and should be completely disregarded as
recommended by Ms. Donohue, then CAP AI has operated under a misimpression and should be
so informed. Regardless, CAP AI fails to understad how ths Ms. Donohue's proposal deviates
from the statu quo.
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 6
Where Ms. Donohue's rebutt clearly does depar from Stas past theories and positions
begins on page 5 of her rebutt where she expresses "concern" over what she peceives to be
"problematic inconsistencies" among Idao's LIW A programs. Id, Ins. 2-3. Ms. Donohue goes
on for six pages outlinng Stas new vision for everyg from determ LIW A fuding to
evaluating the cost-effectiveness ofLIWA progrs. Prior to Ms. Donohue's rebutt, Stahad
not gone into the level of detal and analysis tht Ms. Donohue does in any of its past cases. In
her surebutt, Ms. Ottens characterizes Ms. Donohue's effort evidenced by her rebutt as
"both impressive and commendable" and tht Ms. Donohue "has clearly taen Stas technical
level of anysis of LIW A to a new high watermark." Surr. Test. T. Otens, p.15. The gist of
Ms. Ottens' surebutt is tht Ms. Donohue's effort notwthstding, it is inppropriate to defer
a long overdue W AQC fuding increae for Idaho Power into the indefinite futue based on new,
untested and unpproved theories and positions presented for the fit time in rebutt.
Furer, Ms. Donohue places considerable importce on Rocky Mounta's fiing in
Case No. P AC-E-11-13 in which RM calls into question the very LIW A progr tht Sta
proposed a signficant fudig increase for earlier ths year in the Company's 2010 general rate
case.6 In addition to casting doubts and critiques on the Communty Action Agencies'
administration of LIW A programs in general, Ms. Donohue concludes tht before Idao Power's
LIW A fuding level be increased, there be extensive evaluations and workshops addressing
numerous issues including "consistent implementation methodology and cost effectiveness
evaluation, identifcation of non-energy benefits, proper deteration of nee and appropriate
levels of anual low-income fuding." Id, p. 11, Ins 6-10. Agai, Ms. Otens' surebutt simply
challenges the appropriateness of using these unproven contentions as a basis in this case to defer
a ruing. Thus, the litay of issues and critical taks that must be addresse before Sta will
6 Case No. PAC-E-IO-07.
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 7
support increasing Idaho Power's LIW A fuding is substtial and includes matters never even
raised by Sta before.
In contrt, Ms. Ottens' surebutt does not contan new positions and does not present
any tye of hardship for Sta. Thus, Stas Motion to Stre tht surebuttl on the basis that it
constitutes a "hardship" for Stas case preparation is without substce.
B. Staff Presented Its Direct Case EntieiY In Rebuttl.
CAP AI could have fied a motion to stre Ms. Donohue's testiony on the basis that it
rased, for the fi tie, issues never rase and took positions never taen by Sta and to do so
in rebutt testiony is patently unai. CAP AI believes, however, that the Commission's policy
is to allow all relevant issues to be fuly explored rather th excluding evidence on the basis of
techncalities. CAP AI therefore chose to file surebutt rather than a motion to stre. Staf
charterizes the filing of Ms. Otens' testiony as an "atempt to obta speial privileges."
Motion To Strike, p. 3. CAPAI hardly believes itself, and its constituents, fortte enough to
have "special privileges."
Instead of moving to stre Ms. Donohue's testimony, CAP AI chose to file the
Surebutt ofTeri Otens. Severa importt facts ar relevant to ths issue and Stas motion.
First, Ms. Donohue's testimony was fied shortly before the Thsgivig holiday, at a time
when Sta and Rocky Mountan were makg formal and inormal discovery and "inquies" of
CAP AI and the Communty Action Agencies, CAP AI was under considerable pressure to meet
deadlines in not only ths case, but the Rocky Mounta rate cas, the Rocky Mounta LIW A
evaluation case and the pending United Water rate case, mid-November is the busiest time of
year for CAP AI and its agencies as they are fuly enfed in heatig assistace intae, and
CAP AI had no control over the simultaeous filing of the four extrmely importt cases just
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 8
mentioned. To say the leas, ths combination of deadlies, pressurs and outside commtments
pushed CAP AI beyond its limted resours and means. The surbutt testimony ofTeri Ottens
was prepared, reviewed, and filed as son as possible under the circumstaces. Regardless, for
the reasons outlied elsewhere herein, it creates no hadship or prejudice to Sta or anyone else
to merely allow CAP AI to respond to Stas direct cas made in rebutt in order to satisfy
CAP AI's burden of proof.
Stas Motion makes numerous assertions that are untre or seriously misleading. For
example, Sta clais tht ll (u )ntil CAP AI filed its testimony seekig to increase weatherition
fuding by $1.5 milion, there was no evidence in the record tht CAP AI sought to increase
fuding by that amount." Motion To Strike, pp. 2-3 (Emphasis added). Ths sttement is
distubing for many reasons. Sta and CAP AI have a long-stading relationship based on trst,
mutu respect, open communcaton, and positive resolution of issues, often resulting in
collaboration. CAP AI has had many communcations over many year with Sta in which
CAP AI ha emphasized its belief in the priciple of party of LIW A fudig between utilities.
Furermore, Staffhas long been aware of how CAPAI makes its party calculations. CAPAI
has often argued in cases before ths Commssion in favor of party. Ms. Ottns will be present
when hearg commences in ths case at 9:30 am., Monday, December 5, 2011 and will be
available to confirm these statements under oath should the Commssion desir.
The distubing aspect of Stas statement regarding what is "contaed in the record" is
that Staff is creatig a serious misimpression regarding Stas knowledge of CAP AI's position
by using the confdentiality provision regarding settlement negotiations contaed in Rule 272 of
the Commssion's Rules of Procedure as a shield, an unortte tatic for Sta to tae. Pusuat
to public notice, settlement negotiations were conducte in ths proceedig well before the direct
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 9
prefile deadine for Staf and Interenors. As the settement stipulation and testmonies state,
CAP AI paricipated in those negotiations but did not sign the settlement stpulation and does not
support the settement. Whle it would be grssly inappropriate for CAP AI to violate Rule 272,
it is equaly inppropriate for Sta to give the Commssion a misleadg impression of Staffs
awareness of CAP AI's position in this case by using Rule 272 as a shield.
Regardless, Ms. Otens' can also conf under oath on Monday tht CAP AI
communcated its position on increasing Idaho Power's W AQC fuding, and the basis for that
increase outside the course of any settement negotiations, for may year, including the months
leading up to the filing of direct testony by Sta and Intervenors in ths case. Staff has long
known that CAP AI seeks relative party, or faiess, between the fuding levels and benefits of
the thee major electrc utilties' LIWA programs. Staha long ben aware of the method by
which CAPAI caculates party, whether it agrs with that method or not, and was able to, if
nothng else, put pen to paper to determe what would be requied to bring Idaho Power's
fuding into party with A VISTA and Rocky Mounta usin CAP AI's method. CAP AI has
always been extrmely up front with Sta, all paries, and certnly the Commssion regarding its
position on al issues relevant to the poor. Stas inference tht it ha no idea what CAP AI
would propose prior to the filing of Ms. Otens' direct testimony is simply not tre.
c. CAP AI Did Not "Fail" To Anticipate Or "Explore" Staffs Position Prior to
Rebuttal.
Stas contention tht Ms. Otens' surbutt should be strcken because of "CAP AI's
failure to explore Staffs potential testimony on LIWA," is equaly disingenuous. CAP AI was
quite clear as to its positions in this ca long before Stantervenor testiony was filed.
Though Sta suggests tht it ha no idea tht CAP AI would seek a $1.5 milion increase in
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 10
WAQC fuding, Sta too could have conducted discovery to "explore" Ms. Otens' "potential"
testimony and used tht to present Ms. Donohue's testony on diect rather tha rebuttL. Sta
did not conduct such discovery and canot avoid the same consequences of its own logic and the
procedurl rues it relies upon in its motion.
D. Eguity Does Not Justify Strig Ms. Ottens' SurrebuttaL
CAPAI urges that arguents of legal counsel and respective positions of the paries are
dwared in importce by the need to provide the Commission with the best and most thorough
evidence and inormation possible to assist it in rehig a decision tht is fair, jus and
reasonable. Stas procedural Motion To Stre notwthtading, CAPAI believes tht the
positive relationship it has with Sta members should and will contiue in the natue it always
has been.
But regardig the issue of W AQC fudig, even Idao Power does not object to CAP AI's
proposal to increase W AQC fuding by $1.5 millon. Ms. Theresa Dre testfied in rebutt on
behalf of Idao Power statig:
Q. Does Idao Power object to increing the fuding for WAQC?
A. No, provided there is the potential for more cost-effective savigs.
Reb. Test. T. Drake, p. 4, Ins. 21-24.
Ms. Drake concludes:
Q. In sumar, is Idao Power opposing more fuding for W AQC?
A. Idaho Power is willing to collect cusomer fuds for WAQC to be
adstered by the CAP agencies at the level the Commission deems
appropriate and tht customers are willing to support.
Id at p. 15, Ins. 8-13.
Thus, Sta alone opposes CAP AI's W AQC fuding request in ths cae, waited until
rebutt to stae its basis for tht opposition, and now seeks to avoid any scrutiy of its delayed
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 11
case in chief. The Commssion Sta is sttutorily madated to tae into consideration the
interests of all customer classes. Its procedural tatics should be more fortght and transparent,
especially when what is at stae by vie of Stas motion and this response are not the
sensitivities of individua or pares, but the interests of Idao Power's low-income customers
and residential customers in gener.
CAP AI respetfuly submits, in tht light, that ths issue is too critical to the interests of
those low-income and residential customers and the Commssion's fial ruling should not hinge
on tehncalities, inuendos and inferences. Sta is not in any maner prejudiced by Ms. Otens'
surebuttal and its Motion To Stre should be denied.
DATED, ths 4th day of December, 2011.
'-/~~Bra M. Pudy - ~
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 12
CERTICATE OF SERVICE
I, the undersigned, hereby certfy that on the 4th day of December, 2011 I served a copy
of the foregoing document on the followig by electronic maiL.
Lisa D. Nordstm
Donovan E. Waler
Jason B. Willams
Idaho Power Company
1221 W. Idaho St.
Boise, ID 83702
Inordstrom(fidahopower .com
dwalker(fidahopower .com
jwiliams(fidahopower .com
Gregory W. Said
Idaho Power Company
1221 W. Idao St.
Boise,ID 83702
gsaid(fidahopower .com
Donald L. Howell
Idaho Public Utilties Commission
472 W. Washington St.
Boise,ID 83702
Don.howell(fpuc.idaho. gOY
Karl.klein(fpuclidaho. gov
Eric L. Olsen
201 E. Center
Pocatello,ID 83204-1391
elo(fracinlaw.net
Anthony Yanel
29814 Bay Vilage, OH 44140
tony(fyankel.net
Peter J. Richadson
Gregory M. Adams
515 N. 27th St.
Boise, ID 83702
peter(frichardsonandolear.com
greg(frichardsonandoleary.com
Don Reading
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 13
6070 Hil Rd.
Boise,ID 83703
dreading(fmindspring.com
Arur Perr Bruder
Unite States Deparent of Energy
1000 Independence Ave., SW
Washigton D.C. 20585
Arhur. bruder(fhq .doe.gov
Kur J. Boehm
36 E. Seventh St., Suite 1510
Cincinnati, OH 45202
kboehm(fbkllawfrm.com
Thorvald A. Nelson
Holland & Har
6380 S. Fiddlers Green Circle
Suite 500
Greenwood Vilage, CO 80111
tnelson(fhollandhar.com
Benjamin J. Otto
Idaho Conservation League
710 N. Sixt St.
Boise, il 83702
botto(fidahoconservation.org
Ken Miler
Snake River Alliance
P.O. Box 1731
Boise,ID 83701
kmiler(fsnakeriverallance.org
Nancy Hirch
NW Energy Coalition
811 1st Ave., Suite 305
Seattle, VV 1\ 98104
nancy(fnwenergy.org
Dean J. Miler
420 E. Banock
Boise, ID 83702
joe(fmcdevitt -miler .com
Scott Paul, CEO
CAP AI'S RESPONSE TO STAFF'S MOTION TO STR 14
Hoku Materials, Inc.
One Hoku Way
Pocatello, il 83204
spaul(fhokucorn.com
:¿:S-CAQ~
Brad M. PudY._ "'
CAP AI'S RESPONSE TO STAFF'S MOTION TO STRI 15