20110323Reply to PAC Cross-petition for Reconsideration.pdf

Brad M. Purdy
Attorney at Law
BarNo. 3472
2019 N. 17th S1.
Boise, ID. 83702
[phone] (Land)
[phone] (Fax)
bmpurdy(ßhotmail.com
Attorney for Petitioner
Communty Action Parnership
Association of Idaho
RFiC€/IIJ;
~,..D2011l1AR 23
PH 2:07
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF PACIFICORP DBA ROCKY MOUNTAIN
POWER FOR APPROVAL OF CHANGES TO
ITS ELECTRIC SERVICE SCHEDULES
)
) CASE NO. PAC-E-IO-07
)
) COMMITY ACTION
) PARTNRSHIP ASSOCIA-
) TION'S PETITION FOR
) CLARFICATION/
) RECONSIDERATION
)
CAPAI, in reply to the Cross-Petition for Reconsideration fied by RMP on March 18,
2011 in response to CAP AI's Petition for Reconsideration/Clarification states as follows.
CAPAI notes that RMP's "Cross-Petition" is actually a response to CAPAI's Petition for
Clarfication/econsideration and will be treated accordingly.
RMP's response contains numerous references to unspecified emails, purorted "phone
conversations," and quotations to "statements" allegedly made by CAPAI staff, without a shred
of information as to where these purorted statements came from, from whom, whether they
were recorded or documented and how, in what maner they were supposedly made by CAPAI
staff, when and under what circumstances they were made, or any other meaningful information.
RMP's response relies entirely on hearsay, speculation, misstatement of facts and lack of
foundation. While CAP AI is well aware that the Commission is not strictly bound to the Idaho
CAP AI'S REPLY TO RMP'S CROSS-PETITION 1
Rules of Evidence or Rules of Civil Procedure, RMP's Cross-Petition should be stricken entirely
from the record under the circumstances and CAP AI so moves. It is inappropriate and
inequitable for a seasoned paricipant before this Commission such as RMP, represented by
higWy competent and experienced legal counsel, to base arguments involving an issue importt
to CAPAI and RMP's low-income customers on undocumented, undentifiable, unsubstantiated,
and unverifiable "statements" and narrative from legal counsel.
RMP places considerable weight on Production Request No.5 submitted by CAPAI in
this proceeding arguing that the Company's response to this request fully apprised CAPAI that
RMP did not intend to fud conservation education on an ongoing basis. This argument fails for
several reasons. First, as stated in RMP's own words, and as reflected in the production request,
CAP AI was inquiring whether and why RMP was not proposing an increase to the conservation
education program in this proceeding and was not inquirng about what RMP agreed to in the 08-
7 Stipulation.
The sole point of CAP AI's Petition for Clarfication is to seek a ruling from the
Commission whether the program is ongoing. In ths case, CAP AI was inquiring why RMP had
not increased the amount of fuding to the program. CAP AI never became fully aware that
RMP did not intend to honor its commitments set forth in the 08-7 Stipulation until after the
rebuttal and cross-examination testimonies Company witness CougWin in this proceeding. The
suggestion that CAP AI could somehow have remedied or resolved the issue by presenting
witness testimony on the issue is not rationaL. Until the rebuttal testimony of Ms. Coughlin and
cross-examination of her at hearing, CAP AI believed in good faith that the Company would
continue to invest in conservation education absent a ruling from the Commission that it was not
obligated to. To this day, the Company has never even sought such a ruling.
CAPAI'S REPLY TO RMP'S CROSS-PETITION 2
Furhermore, even if CAP AI should have been aware that RMP did not intend to continue
funding conservation on an ongoing basis, this case was stil the first point in time at which
CAP AI became aware of this fact and the issue is being raised in this case because it contains the
sole evidentiar basis for RMP's position. CAPAI's petition remains viable. RMP is breaching
the terms of the 08-7 Settlement Stipulation. Whether the Commission prefers to rule on the
Petition in this docket, by reopening the 08-7 docket, or by creating a new docket, the issue is
stil very much in play.
CAP AI noted in its original Petition that it was not attempting to introduce evidence that
was not found within the record in this case, in the 08-7 case, or in matters that the Commission
may take Official Notice of. Unlike RMP's response, any reliance by CAPAI on evidence in its
Petition was clearly and succinctly identified and can be easily verified. RMP's thee page
narative statement of facts should not be allowed to derail this issue in a maner that amounts to
simply creating a record, post facto, for the first time without recognition of or adherence to any
semblance of proper procedure.
Moreover, CAP AI strongly disagrees with much of what RMP contends has or has not
occured in the implementation of conservation education. Simply stated, much of what the
Company declares to be factual is not tre. CAP AI acknowledged in its Petition that there were
shortcomings in the maner in which conservation education has been implemented and does not
i
claim to be free from any and all responsibilty for these shortcomings. It is the natue of
implementing any new program for a utilty that there will be a learnng curve. Mistaes will be
made. In this case, RMP committed its share. CAP AI's reaction has been to attempt to resolve
these mistaes in a collaborative fashion with the Company and is currently doing that with RMP
staff.
CAPAI'S REPLY TO RMP'S CROSS-PETITION 3
If the Commission orders a procedure to flesh out these tyes of issues, CAP AI stands
ready to provide proper admissible evidence explaining what has transpired regarding
conservation education since the 08-7 case. That evidence wil demonstrate that RMP is also
responsible for some of the bumps in the road that have occured in implementing the program.
It would be far more productive, however, to engage in productive dialogue to resolve issues
rather than casting stones based on anonymous and specious evidentiary sources.
Along these lines, CAP AI points out that RMP has never made any formal filing with the
Commission regarding the alleged failure of CAP AI to properly implement conservation
education. It simply argues, without any evidence, that CAP AI failed and then makes the
quantum leap that this somehow justifies RMP's position that conservation education is not an
ongoing program all the while arguing that it never agreed to an ongoing program. This
reasoning is circular. The threshold issue of ongoing program is not at all related to program
implementation issues that have arisen. RMP is confing CAP AI's Petition by correlating
unelated issues.
In actuality, since last autum, CAPAI staff has been diligently working with RMP staff
to develop, among other things, a "curculum" for the conservation education program. Again,
there is no point in developing a curculum for a program that has no futue. There seems to be
a disconnect between RMP senior management and legal counsel and RMP's on the ground staff
who administer programs such as conservation education. Regardless, CAP AI's concern is that
the ongoing efforts to develop the program will be wasted should the Company's senior
management suddenly put a stop to ongoing collaboration between the staffs of the two paries.
Based on Ms. CougWin's rebuttl and cross-examination testimony and the Company's response
to CAPAI's Petition, it seems quite apparent that this will occur. CAPAI will continue to
CAPAI'S REPLY TO RMP'S CROSS-PETITION 4
collaborate with RMP's staff, but seeks assurance via Commission order that such efforts will
not be in vain. That and that alone, is the point of CAP AI's Petition.
In sumary, CAP AI respectfully requests that the Commission issue an order in this case
that pursuant to the 08-7 Stipulation, RMP's conservation education program is ongoing. Once
this occurs, CAP AI is confident that the paries will be able to resolve any remaining
implementation issues. Indeed, they are doing this as this Reply is being prepared. Should the
Commission prefer to be fully and accurately apprised of the details and status ofRMP's
conservation education program, then CAP AI requests an abbreviated process through which
admissible, relevant and helpful evidence can be presented to the Commission. This could be
accomplished by reopening the 08-7 docket, establishing a separate procedure in ths docket, or
opening a new docket.
Whatever procedural path the Commission deems appropriate, CAP AI fears that the
unverifiable arguments oflegal counsel in post-hearng briefing are not a solid basis on which to
resolve such technical issues.
POST -SCRIPT NOTE
The undersigned in curently out of offce and country and is with limited access to
modern communication facilties including fax and Xerox machines and international telephone
capability. The undersigned respectfully seeks and requests the Commission's and parties'
indulgence in the abbreviated and unique maner in which this Reply is being fied (solely by
email) until such time as he is able to personally sign a copy of this Reply and file the requisite
hard copies with the Commission and other paries.
RESPECTFULLY SUBMITTED, this 23rd day of March, 2011.
CAPAI'S REPLY TO RMP'S CROSS-PETITION 5
CAP AI'S REPLY TO RMP'S CROSS-PETITION
\s\
Brad M. Purdy
6
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the 23rd day of March, 2011, I served a copy of
the foregoing document on the following by emaiL.
Ted Weston
Rocky Mountan Power
201 South Main, Suite 2300
Salt Lake City, UT 84111
ted. weston(ßacificorp.com
Paul J. Hickey
Hickey & Evans, LLP
1800 Carey Ave., Suite 700
Box 467
Cheyenne, Wyoming, 82003
Mark Moench
Daniel E. Solander
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 84111
daniel.solander(ßpacificorp.com
Data Request Response Center
PacifiCorp
825 NE Multnomah, Suite 2000
Portland, OR 97232
Tim Buller
Agrium, Inc.
3010 Conda Rd.
Soda Springs, iD 83276
TBuller(ßagrium.com
Benjamin J. Otto
Idaho Conservation League
710 N. 6th St.
Boise, ID 83702
botto(ßidahoconservation.org
Don Reading
6070 Hil Rd.
CAPAI'S REPLY TO RMP'S CROSS-PETITION 7
Boise,ID 83703
dreadingêmindspring.com
Melinda J. Davison
Davison Van Cleve, P.C.
333 S.W. Taylor, Suite 400
Portland, OR 97204
Ronald L. Wiliams
Wiliams Bradbur, P.C.
1015 Hays St.
Boise, ID 83702
Eric L. Olsen
Racine, Olson, et al
201 E. Center
Pocatello,ID 83201
elo(ßracinelaw.net
Anthony Yankel
29814 Lake Rd.
Bay Vilage, OH 44140
tony(ßyanel.net
Randall C. Budge
Racine, Olson, et al
201 E. Center
Pocatello,ID 83201
rcb(ßracinelaw.net
James R. Smith
Monsanto Company
P.O. Box 816
Soda Springs, ID 83276
Jim.r.smith(fmonsanto.com
-i . J
DATED, this¿ day of March, 2011.
CAPAI'S REPLY TO RMP'S CROSS-PETITION
Brad M. Purdy
8