20130730Brief in Support.pdf

: , -':
Brad M. PurdyAttorneyatlaw :':l-.Ji'i-:l I.? i:t7BarNo.3472 i,2019 N. 17tr St. I r_ i: j i ,
Boise, lD. 83702
[phone] (Land)
(208) 384-8s11 (Far)
[e-mail]
Attomey for Petitioner
Community Action Partnership
Association of Idaho
BEFORE TIIE IDAIIO PUBLIC UTILITIES COMMISSION
IN TIIE MATTER OF TIIE APPLICATION )
oF PACIFICORP DBA ROCKY MOUNTATN ) CASE NO. PAC-E-13-04
POWER TO TNTTIATE DTSCUSSIONS WTrH )
INTERESTED PARTIES ON ALTERNATTVE ) COMMT]NITY ACTION PARTNER-
RATE PLAI\I PROPOSALS ) SHIP ASSOCIATION Otr'IDAHO'S
) BRrEF rN SUPPORT OF MOTTON
) TO COMPEL
)
The Community Action Parerership Association of Idaho (*CAPAI") submits this brief in
support of its Motion to Compel filed with this Commission pursuant to Rules 221-225 of the
Commission's Rules of Procedure,IDAPA 31.01.01.000 (hereinafter generally referred to as
"Procedural Rules"), and Rules 26 ard 37 ofthe Idaho Rules of Civil Procedure.
I. INTRODUCTION
Though this motion is limited to a request for an Order compelling responses to discovery
propounded by CAPAI to PacifiCorp, the highly unusual nature of this unprecedented filing
exacerbates the consequences of PacifiCorp's refusal to respond to legitimate discovery and
constitutes a substantial diminution of CAPAI's rights as a party. Thus, a detailed background of
the nature and procedural history of this case is essential to a full understanding of the motion.
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL
I BACKGROT]IYD
A. PacifiCorp's Initial Pleadings.
1. Notice of Intent to File a General Rate Case.
This case was forrrally initiated by PacifiCorp on March 1,2013 through the filing of
two documents: l) aNotice of Intent to File a General Rate Case, and;2) an Application. The
Notice of Intent is a single page letter with a subject line that reads: "Re: Notice of Intent to File
a General Rate Case." [Emphasis AddedJ The body ofthe letter starts as follows: "Pursuant to
the Idalro Public Utilities Commission's Rule of Procedure l22,PacifrCorp dba Rocky Mountain
Power hereby files Notice of Intent to file a seneral rate case. fEmphasis AddedJ. This Notice is
being filed at least 60 days before the Compan), intends to file a qeneral rate case." [Emphasis
AddedJ. Sixty days from March 1, 2013 would actually be April 30, 2013. PacifiCorp notes in
its Notice of Intent, however, that:
This Notice is being filed at least 60 days before the Comoany intends to
file a general rate case. Pursuant to Order No. 32432, resulting from a
stipulation betweenparties in Case No. PAC-E-ll-l2,the Company will
not file a general rate case before May 31, 2013, any rate change
resulting from the case will not be effective before January 1,2014.
[Emphasis AddedJ.
Rule 122 of the Commission's Procedural Rules,IDAPA 31.01.01.122 requires all
utilities with gross annual revenues from retail customers in Idaho exceeding three million
dollars ($3,000,000.00) to file a notice of intent "at least sixty (60) days before filing a general
rate case." The rule further provides that ttre if the application itself is not filed within 120 days
after filing the Notice of Intent, the Notiqe will be considered withdrawn unless properly
supplemented. PacifiCorp has never supplemented its Notice of Intent in the manner required by
Rule 122 for the Notice to remain valid beyond 120 days.
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PacifiCorp's Notice of Intent is unique in many respects. Though the first paragraph is
relatively routine and appears to satisfr the requirements of Procedural Rule 122 for a general
rate case, the second paragraph of the Notice takes an unusual and unprecedented tum by which
the Company seeks immediate and extaordinary procedural and substantive relief from the
Commission:
"The Company is filing an Application to respectfully requesting [sic]
that the Commission open a docket, Notice the Application, and establish
an intervention deadline for interested persons to intervene with the
intent to participate in discussions that may lead to an agreement on an
alternative rate olan solution other thaq the Company filing a general
ljatecase."
fEmphasis AddedJ.
Thus, PacifiCorp's Notice of lntent explicitly and repeatedly states the Company's
intention to file a general rate case and that said filing cannot occur prior to May 31, 2013, but
then takes an unexpected tum and seeks immediate processing of the accompanying Application
for what seem to be other purposes. For numerous reasons, Notices of Intent to File a General
Rate Case are not accompanied by Applications and do not seek immediate procedural relief
from the Commission. PacifiCorp, nonetheless, requested the Commission to immediately
"Notice the Applicationo' accompanying the Notice of Intent and initiate a proceeding whose
stated purpose is actually an attempt to avoid filing a general rate case, an obvious contradiction
with the stated and formal purpose of a Notice of Intent.
PacifiCorp also requested that the Commission establish an intervention deadline
specifically for those who have "the intent to participate in discussions that may lead" to the
avoidance of a general rate case. Ordinarily, intervention deadlines established by the
Commission do not speciry what an intervenor's "intent" must be in order to intervene. The
Procedural Rules contain no specific uintentu for intervenors so long as the intervention petition
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contains all of the elements set forth in Procedural Rule 72. Regardless, the Notice of Intent in
this case seems to be seeking two contradictory things: a general rate case and a case limited to
the objective ofdiscussing how to avoid a general rate case.
One could imagine any number of scenarios of howthis case, once noticed by the
Commission, would tum out. One obvious possibility is that the parties might have drafted a list
of possible alternatives to a general rate case as the very wording of the initial filing and the
Commission's Notice of Application suggest. That list could then have been provided to the
Commission and the parties could have proposed a particular procedure by which to handle the
Application for a ganeral rate case that PacifiCorp would then file no sooner than May 31,2013.
The last thing that CAPAI envisioned, however, was that the parties would simply and
unilaterally disregard all Procedural Rules pertaining to general rate cases, not draft any
particular procedural alternative for the Commission's consideration, and negotiate the
confidential settlement of a general rate increase that didn't and couldn't lawfully even exist yet.
It is hard to imagine that this is what the Commission envisioned. CAPAI is the only party not to
execute the sefflement stipulation and has made clear its deep concerns about the potential,
negative repercussions of processing a case in this manner unless and until such time as the
appropriate legislative changes are made to the Idatro Code and/or proper administrative
rulemaking is completed altering the existing procedure prescribed for general rate cases.
Paragraph 4 of PacifiCorp's Application states that, prior to the filing, the Company had
already "met informally with the majority of its customer representatives including Commission
Staff, PacifiCorp Idatro Industrial Customers, Idaho Irrigation Pumpers Association and
Monsanto to discuss the concepts of a rate plan that could possibly avoid the necessity...of
prosecuting a general rate case." Application at p. 2. CAPAI was not invited to join in these pre-
4BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL
frling discussions and had no idea that they had even taken place until after March 12,2013,
when the Commission issued a Notice of Application and Order No. 32761. In fact, it was not
until April 19,2013, during the first settlement conference, that CAPAI became aware of the
details of the controversial proceeding that was being proposed.
2. Application of Rocky Mountain Power
(a) Application is Prenature, Confusing and Invalid
PacifiCorp's March 1,2013 filing is firther muddled by the inclusion of the "Application
of Rocky Mountain Power" with the Notice of Intent the former being every bit as peculiar and
unprecedented as the latter. The confusion begins with the Application's caption which
characterizes the case as: *In the matter of the application of Rocky Mountain Power to initiate
discussions with interested parties on alternative rate plan proposals." This is quite different
from the typical caption used in general rate case applications.
Rather than outline the details of the general rate increase sought by the Company, as is
required by Rule l2l,the Application actually discusses why a general rate case cannot even be
filed until May 31, 2013. The Application concludes with the following highly unusual prayer
for relief :
WHEREFORE, Rocky Mountain Power respectfully requests that the
Commission open and notice a docket and set an intervention deadline
that would formally notiff interested parties of Rocky Mountain Power's
intent to engage in settlement discussions, pumuant to IPUC Rule 273,1
with the desire to reach agreement on terms that would allow the
Company to avoid filing a general rate case n2013 and extend the
existing rate plan for an additional period oftime.
Application at pp. 2-3.
I A rule stating that the Commission may "inquire ofthe parties" as to whether settlement in an ongoing proceeding
are in progress or cont€mplated and/or inviting settlement of certain issues or the entirety of a pending case
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The preceding request is improper on its face because it requests that the Commission
limit what is stated to be a general rate case to "settlement discussions" involving only those who
have the "intent to engage" in such discussions '\I/ith the desire to reach agreement on terms that
would allow the Company to avoid filing a general rate case n2013." An interested person who
wished to participate in any general rate case that might be conducted but who was not interested
in devising ways to deviate from existing law and policy regarding general rate case procedure,
would not even seem to be welcome by virtue of the notice language requested by PacifiCorp.
This illustrates the potential for confrrsion and an unwitting waiver of rights by parties who
might not have intervened on the basis that the case at hand is a precursor to, or something other
than, the actual rate case which would presumably be filed roughly three months later.
The simultaneous filing of an Application with aNotice of Intent is patently
counterproductive and in violation of Procedural Rules. One of the primary purposes of a Notice
of Intent is to give the public and potential intervenors advance notice of a general rate case
which typically involves a considerable investnent of resources and preparation. It makes no
sense, therefore, to file an application simultaneously with the Notice of Intent when that
application might" as it did in this case, result in a proposed general rate increase prior to the
expiration of at least 60 days time.
The atypical procedure adopted in this case is troubling because there is no way of
knowing to what extent the public was confused by this filing and whether parties who might
otherwise have intervened but chose not to believing that this was something other than a rate
case il for no other reason, than the caption of the Application itself, and the wording of the
Notice of lntent and Application which could be interpreted in numerous different ways. Indeed,
CAPAI itself was uncertain whether a rate increase could lawfully be permitted without a proper
6BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL
application filed no sooner than May 31,2013. To be cautious, CAPAI petitioned to intervene in
this case, even though it had no "intent" to seek an alternative to a general rate case and even
though the filing seemed to be a violation of Procedural Rules, simply out of fear that failure to
intervene would likely be deemed a failure to intervene in the general rate case that PacifiCorp
explicitly implied would be filed no sooner than May 31,2013. In fact, CAPAI's concerns were
well-founded. Had it not intervened when it did, it would have had no say whatsoever in the
outcome of this case. As it is, even though it intervened, CAPAI's full parties' rights were
diminished by virtue ofthe inappropriate procedure of this case combined with PacifiCorp's
refusal to respond to discovery requests.
Finally, CAPAI anticipates that PacifiCorp will argue that, as characterized in the
Application's Prayer for Relief, the settlement stipulation in this case does not constitute a
general rate increase but, rather, an "extension of an existing rate plan for an additional period of
time." Application at pp. 2-3. The very terms of the settlement stipulation being proposed refute
any such contention. For example, paragraph 2 of the stipulation states: *[t]he following
Stipulation represents an agreement between the Pa*ies on a new two year rate plan." Stipulation
at p.2 fEmphosis AddedJ. Furdrermore, paragraph 7 of the Stipulation begins: "The Parties agree
that base revenue requirement for all schedules will be increased by the unifonn percentage
amount of 0.77o/o." At its core, this Stipulation is no different than any other general rate case
increase negotiated but processed in compliance with the Procedural Rules applicable to general
rate cases.
(b) Failure to FiIe Proper Application Results in Dismissal of Case.
Procedural Rule 122 provides, in part:
If the general rate case [i.e., "Rule 121 application"] described in the
notice is not filed within one-hundred twen8 (120) days after filing of
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the notice of intent to file a general rate case, by operation of this rule g
notice of intent to file a general rate case will be considered withdrawn
unless it is supplemented with a wriffen statement that the utility still
intends to file a general rate case of the kind described in its notice of
intent to file a general rate case.
Emphasis Added.
To this day, PacifiCorp has never actually filed what constitutes an application for a
general rate case in compliance with the numerous requirements of Procedural Rule 121
including, among other things, the specific details of the proposed rate increase, proposed tariffs
with the necessary changes marked on the existing tarifl justification of the rate increase in the
form of testimony and exhibits, as well as financial stiatements, cost of capital and appropriate
cost of service studies and, if the utility in question operates in more than one jurisdiction as
PacifiCorp does, a jurisdictional separation of all investrrents, revenues and expenses allocated
or assigned in whole or in part to Idaho intrastate utility business regulated by this Commission
showing allocations or assignments to Idaho, and so on.
Because more tlan 120 days have passed since the filing of the Notice of lntent filed on
March 1,2013 and no general rate case application, as defined by Procedural Rule 121, among
others, has yet been file( pursuant to Rule 122, therefore, PacifiCorp's filing is technically
deemed withdrawn and the proposed settlement stipulation is legally null and void.
(c) Application Violated 2011 Settlement Stipulation
In addition to the inappropriate timing or lack of actual filing of the Application, by
virtue of Procedural Rule 122, and the fact that the case was deemed withdrawn, the March I
Application also violated the 201I PacifiCorp settlement. That Stipulation, filed October 18,
2011, provides in part:
19. The Parties agee that in recognition of the two-year rate plan
covered by this Stipulation, Rocky Mountain Power will not file another
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general rate case before May 31, 2013, with new rates not effective prior
to January 1,2014,
Stipulation at p. 6.
Regardless of how PacifiCorp's Application in this case is worded or characterized, it led
to the immediate processing of the application, including the conducting of discovery and two
settlement conferences, and ended in an agreement and proposal, prior to May 31, 2013,to
increase rates. Though the settlement stipulation was not filed until June 3, 20l3,the stipulation
was obviously not negotiated, formalized in a written stipulatiorq circulated for comments and
revised, and executed by all parties in the span of three days. Thus, it had largely been resolved
prior to May 31,2013 and, therefore, constitutes an effective violation of the settlement
agreement executed in PacifiCorp's 201I general rate case.
B. Procedural Abnormelities of Case
l. PacifiCorp Filing Misleading and Notice Issued by Commission lVas Not
Complied With.
On March 12,2013, only eleven days after the Company's filing, the Commission issued
a Notice of Application and Order No. 32761 commencing the processing of PacifiCorp's
Application. The Commission's Notice of Application states:
Based upon our review of the Application and Staffs recommendation,
the Commission finds it reasonable to initiate a case so that parties can
engage in settlement discussions in an effort to avoid or narrow issues in
a seneral rate case.
Notice of Application at p. 2 [Enphasis AddedJ.
Though CAPAI does not presume to know what the Commission's intentions were
regarding the language contained in the Notice of Application and Order 3276l,the Notice does
seem to state on its face that, while the discussions betrveen the parties might "avoid" or
9BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL
"narrow' issues, it seems to suggest that a general rate case will still be filed. The Company's 60
day Notice of Intent was made roughly 90 days before the date on which it could file the rate
case, and the Commission issued a Notice of Application a mere I I days after the filing, so
perhaps the Commission was providing the parties an opportunity to stearnline the rate case that
would ultimately be filed and conducted.
Regardless, CAPAI questions whether the Commission anticipated that the parties to this
proceeding would not simply avoid or narow issues, but go much furttrer and actually settle a
rate case that hadn't yet been filed and propose a general rate increase to the Commission. It
seems that the settlement stipulation proposing a general rate increase appears on the surface to
have been an abuse of a process for a purpose other than stated in the Notice of Intent, in
violation of an existing settlement agreement, in contadiction to the Commission's Notice of
Application and Order 32761, and in violation of numerous Commission Procedural Rules.
2. Private Pre.Filing Discussions Seeking Input on Filing.
Paragraph 4 of the "Application of Rocky Mountain Power" states:
Company representatives have met informally with the majority of its
customer representatives including Commission Stafl PacifiCorp Idatro
Industrial Customers, Idaho lrrigation Pumpers Association and
Monsanto to discuss the concepts of a rate plan that could possibly avoid
the necessity and associated expenses for all parties of prosecuting a
general rate case.
It was not until sometime after the Commission issued its Notice of Application and
Order No. 32761 that CAPAI even became aware that the Company had made its filing and,
prior to that filing, had already discussed the substance of it with the Commission Staffand a
select group of the Company's largest customer groups. CAPAI, the Idalro Conservation League,
and the Snake River Alliance have all been regular intervenors in PacifiCorp filings in recent
years but were not listed in pamgraph 4 of the Application as having been involved in these pre-
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filing discussions. CAPAI certainly had no knowledge that the discussions mentioned by
PacifiCorp were even taking place, let alone what they involved.
Thus, the Commission Staffand PacifiCorp's largest Idaho customer groups knew of
what procedural plans the Company had in mind at some point in time prior to the filing date of
March 1,2013. Upon inquiring informally of the nature of such plans following March l,
CAPAI was informed that the Company would circulate something in writing prior to the first
settlement conference conducted on April 19,2013. No such document was ever received by
CAPAI and it wasn't until April 19 tttat CAPAI had any idea of what PacifiCorp was actually
seeking in this case and what positions had been developed by those parties who were privy to
the pre-filing discussions. By that point in time, those parties were already well prepared to
begin litigating this case while CAPAI could not seem to get a staight answer as to what the
case was even about and how it was possible to have aNotice of Intent simultaneously filed with
an Application that purportedly existed only to investigate rate case alternatives and not execute
a settlement resulting in a general rate increase.
The Company has never proffered any explanation of why it discussed the substance of
its rate case filing with certain regular intervenors but not others. It is very concerning that
substantive discussions were held between select groups of customers and the Commission Staff
prior to the filing of what was obviously an unFrecedented and potentially controversial case and
one that has resulted in a proposed rate increase but without proper notice to the public and in
violation of existing policy and law. Whether non-Company parties foresaw this scenario, the
fact is that PacifiCorp, with the implicit or explicit acquiescence of all those who joined the
settlement, has effectively re-written the Commission's Procedural Rules and created an entirely
new procedure for processing general rate increases, but without ever defining and first
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL ll
proposing that new procedure to the Commission for its consideration as, possibly, the
Commission anticipated. The new procedure adopted during this case simply seems to be that a
utility can file a case that seeks at two mutually exclusive objectives, but the parties can then
engage in confidential settlement negotiations resulting in a previously unknown third objective
being selected and presented to the Commission for approval. Such a procedure is dangerously
abbreviated and negotiated in confidential settlement discussions thereby entirely shutting out
the general public on a matter of tremendous importance.
Regardless of whether Procedural Rule 272 prohibits the Commission Stafffrom
engaging in non-noticed and exclusionary pre-filing discussions that ultimately led to a
settlement stipulation, the very nafure of such private discussions are dangerous and create very
real opportunities for abuse of process in the future. Most importantly, it certainly does not
instill much faith in a general public who, especially of late, seems insleasingly skeptical of its
ability to influence Commission decisions. Finally, this matter was simply too important and
controversial to allow for private meetings that were not noticed to the public and from which
even regular intervenors such as CAPAI were shut out. CAPAI respectfully hopes that the
Commission strongly discourage any future filings and conversations of this nature.
III. MOTION TO COMPEL
A. Standards for Motions to Compel
Regarding discovery, the Commission's Procedural Rules operate in conjunction with the
Idaho Rules of Civil Procedure. To the extent the latter conflict with the former, the
Commission's rules conhol. Commission Procedural Rule 221 enumerates the general scope of
discovery that may be conducted. Rule 222 grants the right to discovery to *all parties to a
proceeding.o' Pursuant to Rule 225, production requests or written interrogatories and requests
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for admission "may be taken in accordance with the Idatro Rules of Civil Procedure for any
purpose allowed by statute,Idaho Rule of Civil Procedure, rule of the Commission, order or
notice...." With respect to requests for production/interrogatories, the only exceptions to the
foregoing allowable scope of discovery includes discovery used to obtain statements of opinion
or policy not previously written or published. Rule 225(I)(a)-(b).
CAPAI notes that, historically, parties have adopted the practice of lumping
interrogatories and requests for production under the same heading of "production requests."
Regarding the general scope of discovery permitted by the Idatro Rules of Civil hocedure, Rule
26OXl) thereof provides, in part:
Unless otherwise limited by order of the cotrt in accordance with these
rules, the scope of discovery is as follows: (l) Parties may obtain
discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the claim or defense
of any other party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible things
and the identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the information
sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
Pursuant to Commission Procedural Rule 221(03), unless otherwise provided by order,
notice or the Procedural Rules, a party to whom discovery has been propounded has fourteen
(14) days to object or explain why a question cannot be answered according to this rule and
twenty-one (21) days to answer. As noted below, the CAPAI discovery subject to this Motion,
and to which PacifiCorp has not yet responded, was propounded on April 29,2013.
In the event that a party refuses to respond to discovery, I.R.C.P. 37(a) provides that the
propounding party may file a motion to compel a response to the discovery in question. Rule
37@)$) also provides for an award of expenses of the motion to compel in the event it is
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL t3
granted. Commission Procedural Rule 232 provides that *[t]he Commission may impose all
sanctions recognized by the Public Utilities Law for failure to comply with an order compelling
discovery.
B. Information Sought by CAPAI and PacifiCorp's Refusal to Respond.
1. Explanation of Data Sought by CAPAI
Since AVISTA's 2012 general rate case, AW-E-12-08, CAPAI has been making a
concerted effort to obtain and analyze low-income consumption data in an attempt to, among
other things, obtain a better understanding based on empirical evidence, of how differing rate
residential rate design altenratives affect the poor. There is nothing ffierently controversial
about this objective. To the contary, it might resolve what have historically been differences of
opinion betrveen CAPAI, the utility in questiorl and other parties. More importantly, it provides
the Commission with beuer inforrration in making its rulings on rate design issues.
The point of seeking low-income consumption data, therefore, is not solely for the purpose of
bolstering CAPAI's position on any given issue in a given case, but to edifr CAPAI, the Commission,
Staffand all others interested in such matters as to how rate design decisions can have a significant
impact on the poor.
CAPAI's quest for the data described is, frankly, the result of unsuccessful efforts over
the years to obtain low-income data from public utilities. Historically, and for various reasons
including privacy concerns, utilities have not identified, gathered" or provided to CAPAI or
others certain information related to their low-income customers. CAPAI's pursuit of low-
income consumption data therefore, stems from this lack of effort to obtain such information
without violating the privacy of the customers involved.
The manner in which lo*income consumption data is sought in this case and has been
obtained in other proceedings is generally as follows. First, CAPAI defines low-income
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL 14
customers in its discovery requests through the use of a "low-income proxy group." This proxy
group consists of all recipients of either LIHEAP or utility-funded low-income weatherization,
but counts customers who receive multiple benefits only once to avoid double-counting. The
utility involved can identifr these customers with relative ease and speed and, using their
physical addresses, collect their actual consumption data such as how many kilowatt hours are
consumed for any given month or season. At no point during this process is the identity of any
person for whom consumption data is collected and disseminated by the utility ever revealed.
CAPAI is well aware that ttre low-income proxy group does not constitute the entirety of
any utility's low-income customers as that term is defined for purposes such as qualifting for
LIHEAP benefits. It is a virtual certainty that there are far more low-income customers who
qualiry as such than those who actually seek and obtain benefits. Just the same, the low-income
proxy group does reflect low-income consumption characteristics to some extent and is the best
data source that CAPAI has thus far conceived that does not violate customers'privacy rights.
CAPAI will gladly consider suggestions for ways to improve upon the proxy Broup, or possibly a
dif[erent means of obtaining low-income consumption data altogether that any entity wishes to
propose, especially the Commission or its Staff.
Once the low-income proxy goup data is obtained, the next step is to utilize this
consumption data by assessing the impact that varying rate design altematives would have on
low-income customers'bills. This requires what can be characterized by different names such as
"model runs" or "bill impact analyses." These functions are not difficult nor unduly time-
consuming and have been performed by other utilities such as AVISTA and even PacifiCorp
itself in its pending Washington state general rate case.2 Examples of such model runs would be
to make different changes to the various components of whatever existing residential rate design
' WUTC Docket No. UE-130043.
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the Company has in place and then ascertain how those changes would impact a low-income
customer's monthly bills. lncidentally, CAPAI is leaming that as these types of model runs are
being analyzed, they appear to be revealing information useful not just to low-income customer
advocates, but to all residential class customers.
For example, in discovery requests, a utility could be asked to perfomr a model run where
a two-tiered system is replaced with three tiers, the consumption break point by which the tiers
are delineated could be changed (e.g., a first tier block could be altered from usage up to 800
kWh/month to 1000 kWh/month), the energy rate pricing within different tiers could be changed
(e.g., change from 8 cents&Wh to 9 cents in a given tier), the tiers could be flipped to declining
rather than inclining block rates, or the basic charge could be adjusted.
Concerning the Company's basic monthly charge, the discovery requests also will
provide empirical inforrration regarding the effects of changes to this rate component on the
poor. This is but one example of the type of data sought by CAPAI from PacifiCorp and the
benefits that such knowledge brings.
CAPAI has previously sought and obtained from AVISTA the very same information in
seeks in this case and which is now subject to this Motion in AVISTA's2012 general rate case.
AVISTA was able to turn around CAPAI's discovery requests within a few days. The
information obtained convinced CAPAI to join the settlement stipulation proposed in that case.
More relevant to this Motion to Compel, the very information sought by CAPAI in this
case has been sought and obtained from PacifiCorp's Washington utility, Pacific Power & Light
in the Company's general rate case pending in that state by the Energy Project which, somewhat
like CAPAI, is an umbrella organization ttrat serves Washington's community action agencies.
Doclret No. UE-130043. CAPAI notes that the information provided by PacifiCorp in the
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL l6
Washington proceeding was sponsored by the same PacifiCorp employee listed as the sponsor to
the responses to CAPAI's discovery in this case, Ms. Joelle Steward. Thus, Ms. Steward has
already performed the very sarne model run in Washington that CAPAI seeks in Idaho.
Incidentally, the actual data and model run results provided by PacifiCorp in the Washington rate
case is of no use to CAPAI because customer consunption varies significantly from region to
region and utility to utility (i.e., Pacific Power & Light and Rocky Mountain Power). The
Company did not object or refuse to respond to the identical discovery requests in Washington
and was able to quickly provide athorough response.
2. Specifics of CAPAI discovery and PacifiCorp Responses/Refusal to
Respond.
The following section outlines the general procedural steps in the discovery process that
occurred leading to the current Motion to Compel. As discussed below, CAPAI submitted
discovery request Nos. 1-6 to PacifiCorp, wittr subparts. PacifiCorp has responded to all
requests but No. 6(b) which CAPAI considers exfiemely important. Thus, this Motion to
Compel is limited to Request 6(b). Request 6(b) keys offof request 6(a) so the entirety of
Request No. 6 is as follows:
6. Using the Company's low-income proxy group, and based on actual
monthly test year data as referred to in Request No.4, please make the
following rate design model runs:
Calculate the effects on the low-income customer proxy
group's monthly bills if the Company's monthly basic charge were
increased from its current level to $10, $15 and to $20, (assuming no
changes to the existing commodity rates for the Residential class's two-
tiered rate). [n responding to this request, please make the requested
calculations at existing rates during the test year.
Assuming no change to the Company's existing monthly basic
charge, calculate the effects on the low-income proxy groups' monthly
bills in comparison to non-low income residential customers (using test
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL 17
year actual monthly consumption) if the existing two-tiered rate design is
changed such that the consumption amount of the first tier is increased
from the existing 700 kwh surrmer block to 800 kWlr/month, 1000 kwh
and 1200 kwh. Please provide the same data for the winter block of
1000 kwh if the block were changed to 800 kwh, 1200 kwh and 1400
kwh.
Without divulging anything confidential and of substance discussed during the two
settlement hearings, it is fair to say that, as early as April 19, 2013, CAPAI made clear its
ongoing effort to obtain the type of low-income consumption data described above and obtained
from other utilities in other proceedings and that it needed to obtain the same type of data in this
case in order to decide whether joining in the settlement was in the best interests of its
constituents. It was agreed in this case that, as part of an ef;fort to expedite PacifiCorp's
ambitious time frame for obtaining a settlement prior to May 31, 2013, CAPAI could submit its
discovery requests in an informal manner to PacifiCorp senior executive Mr. Ted Weston who
would attempt to provide a prompt response.
On April 29,2013,ten days afterthe conclusion of the first settlement conference,
CAPAI submitted its discovery requests Nos. l-6, with subparts, to PacifiCorp via an email and
attachment to that email from CAPAI's legal counsel to Mr. Ted Weston as previously discussed.
A true and correct copy of CAPAI's email is included as Exhibit uA'to the Affidavit of Brad M.
Purdy (hereinafter referred to as "the Affidavit'), filed contemporaneously herewith. The actual
discovery requests attached to the Apil2g email as a Word document are included as Exhibit
"B" to the Affidavit.
On May 2,2013,the date of CAPAI's second settlement conference, PacifiCorp
responded to CAPAI's discovery requests l-5 with two separate emails, from Mr. Weston. A
true and correct copy of this email is attached to the Affidavit as Exhibit "C." In Exhibit C, IVIr.
Weston informed the undersigned that the Company was still working on its response to
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL t8
discovery request No. 6. In the interest of expediency, and because they are not subject to this
Motion, the actual discovery responses to CAPAI's request Nos. 1-5 are not attached to the
Affrdavit.
As the month of May progressed, PacifiCorp drafted and circulated a proposed settlement
stipulation seeking comments from the parties. On May 16,2013, CAPAI, through legal
counsel, provided its comments to the proposed settlement stipulation and reminded the
Company that it had not yet responded to discovery request No. 6 and that said response was
necessary for CAPAI to determine whetherthe proposed stipulation was acceptable. CAPAI
articulated, in no uncertain terms, its ongoing concerns regarding the procedural abnormalities of
this case and proposed that a condition precedent to the settlement should be included providing
for a formal hearing to allow for public participation in the process. CAPAI never received a
response from any party specific to its May 16 email.
On May 29,2013, PacifiCorp, through its employee Ms. Kaley McNay, emailed its
response to CAPAI's discovery request No. 6. A true and correct copy of the email and attached
Word document containing the discovery response are attached to the Affidavit as Exhibits "D"
and uE,' respectively. Though the Company responded to request 6(a). PacifiCorp's response to
request 6O) is as follows:
The Company has not performed the two-tiered rate designanalysis [sic]
requested by CAPAI. As specified in paragraph 18 of the Stipulation if
CAPAI is party to the Stipulation the Company agrees to participate in a
collaborative rate design process to evaluate alternatives.
In the week or so that followed, PacifiCorp continued to refuse to respond to request 6(b)
unless and until CAPAI executed a settlement stipulation and only then would a response to the
request be provide through an undefined "collaborative effort" or "technical workshop" as Mr.
Weston has referred to it. The precise date, location and other logistics of this workshop were
BRIEF IN STJPPORT OF CAPAI'S MOTION TO COMPEL l9
never specified and it is not clear whether CAPAI ever would have received the infonnation it
was seeking even had it joined the settlement and the workshop been conducted. Regardless,
and as it made clear to the Company and all other parties, CAPAI needed the information sought
by request 6(b) before it could determine whether the settlement agreement was in the best
interests of its constituents. The promise of yet another "workshop" at some funre point in time
was not a sufficient response to a legitimate discovery request, especially when it required
CAPAI to agree to a rate increase before it had the necessary informatioru is simply a baseless
refusal to respond to legitimate discovery without speciffing any particular legal basis for such
refusal.
Had CAPAI accepted PacifiCorp's tetms, CAPAI would have been barred from
challenging the proposed rate increase if the information disclosed by the workshop revealed that
the rate increase was not fair, just and reasonable. Thus, CAPAI was effectively forced to
relinquish its rights as a parly to be entitled to engage in discovery regardless of the fact that the
Company did not place similar conditions on the discovery requests of any other party to the best
of CAPAI's knowledge. To this day, PacifiCorp has yet to provide a specific legal grounds for
its refusal to respond to request 6(b).
C. CAPAI Singled Out by PacifiCorp for Unequal Tneatment Depriving CAPAI of its Full
Party Rights.
There has been a significant amount of discovery submitted to PacifiCorp by the other parties
thoroughly and promptly responded to by the Company. To the best of CAPAI's knowledge, CAPAI is
the only party to whom the Company has refused to fully respond to its discovery. CAPAI is also the
only parly to decline to join in the settlement until such time as the Company provided CAPAI with the
information CAPAI needed to decide whether to join in settlement. Up until the very end of May when
the Settlement Stipulation was being executed by the other parties, CAPAI was given the distinct
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL
impression on numerous occasions that discovery request 6(b) would be responded to. It wasnt until the
end of May when the Company likely had the signatures of all other parties, or the assurance of those
signatures, that PacifiCorp reversed its position and refused for the first time to respond to request 6(b).
Nonetheless, the Company continued to pressure CAPAI to execute the settlement stipulation despite
PacifiCorp's refusal to respond to discovery requests that CAPAI had indicated back in April, 2013 were
essential to CAPAI in determining whetherto join the settlement.
CAPAI was told that the Company would only respond to request 6(b) !f CAPAI joined in the
Settlement. This tactic is heavy-hande4 and in violation ofthe Commission's Procedural Rules. Adding
this to the unlawful manner in which this case has been handled from the time before it was even filed,
the Company has clearly not behaved in a fair and reasonable manner toward CAPAI. To deny CAPAI
substantive information that it needs in order to decide whether to even join the settlement is simply
taking already bad behavior another step in the wrong direction.
D. PacifiCorp Eas Failed to Assert Any Iegal Basis for Refusal to Respond
To this day, PacifiCorp has technically not even proffered a legal basis for its objection to
CAPAI's request No. 6(b) other than to state that it is not required to perform the model runs requested by
CAPAI. The Company does not cite any administrative rules, statutes, case law, or even offer a practical
reason why it is not required to respond to CAPAI's discovery. CAPAI is not obligated to speculate what
the Company's legal basis is and until such time as it does, CAPAI's Motion should be granted simply
because the Company has refused for no stated reason and in bad faith to fairly engage CAPAI and honor
its rights as a fonnal parly to this case.
CAPAI notes that requesting utilities to perfonn model runs or similar analyses is something that
parties to proceedings before this Commission have done through discovery requests for at least decades.
One example is the coflrmon practice of asking a utility to perform cost of service model runs or make
other calculations regarding revenue requirement, rate spread, rate design, or any number of other areas
involving models. CAPAI's "model" in this case is simply a request to perform basic algebraic
calculations of rate impacts resulting from rate design alternatives based on information that only the
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL 21
Company possesses. Because PacifiCorp is the only entity capable of obtaining the information sought
by CAPAI and because said information is sensitive and the privacy of individuals involved must be
maintained and because it is in the best if not only position to perform the model runs requested by
CAPAI, any claim that the Company is not required to provide such information is simply inconsistent
with historical procedure and the Commission's Procedural Rules and is inconsistent with the fact that
AVISTA promptly provided this information to CAPAI and PacifiCorp did so itself in its Washington
rate case, though for a different operating division.
TV. ST'MMARY OF CAPAI'S CONCERNS AI\ID MOTION TO COMPEL
To summarize, PacifiCorp met in private with Staffand the Company's largest customers prior to
filing a manner of proceeding that is unprecedented and defies labeling. It is a rate case, yet ifs not. A
Notice of lntent to File a General Rate Case was file4 yet it wasn't. It was treated as a general rate case
in certain respects, but not in others, yet resulted in a general rate increase that was expeditiously
brokered. Technically, an application for a general rate case has not yet even been filed in this
proceeding. Assuming the Commission considers the initial pleadings and Notices to have initiated a
general rate case, then such pleadings and Notices wene a violation of the 201 lsettlement stipulation
because it was filed prior to May 31,2013. Nonetheless, the parties agreed to a general rate increase prior
to May 31,2013 through confidential settlement negotiations which, apparently, is their proposed
"alternative" to a general rate case. The refusal of PacifiCorp to respond to legitimate and relevant
discovery requests essential to CAPAI's ability to determine whether to join in this highly questionable
settlement is the proverbial insult to injury.
Regarding PacifiCorp's refusal to respond to CAPAI discovery, CAPAI made it clearto the
parties early in this proceeding that the information sought by that discovery was essential to CAPAI to
determine whether PacifiCorp's existing residential rate design was fair, just and reasonable and,
therefore, whether to join in the proposed settlement. Procedural Rule 124 automatically puts at issue
matters such as revenue requirement rate spread, and rate design. CAPAI further notes that during the
months that have passed since the discovery was first propounded, especially the past two months when
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL 22
the matter has sat idle waiting for hearing, the Company had more than ample opportunity to provide the
same information that took its Washington division several days to provide. The Company has yet to
even offer a legal basis for its refusal to respond to this discovery. CAPAI respectfully submits that this
motion could and should be granted on that basis alone.
CAPAI fully acknowledges that this Motion extends well beyond the narrow issue of a typical
Motion to Compel, but believes that the refusal of PacifiCorp to respond to CAPAI's discovery is a clear
manifestation and symptom of a much larger systemic problem that deserves to be fully addressed in all
of its aspects, legal, factual and otherwise. Failure to do so very well might result in very bad precedent
being established and a domino effect that will carry the consequences of this case far outside its
parameters. Regardless of whether Staffadamantly believes that it has negotiated an end result in terms
of a rate increase that is in the best interests of all ratepayers, no such end result is worth establishing the
precedent that will be set if the settlement stipulation is approved in this case.
CAPAI has been increasingly concerned about the increased fr,equency with which general rate
cases are being filed and the increasingly abbreviated manner in which they are being processed. CAPAI
understands that the Commission's legal authority and powers are limited in terms of discouraging
utilities from filing general rate cases. CAPAI is also aware of the substantial demand on Commission
resources that neady annual general rate case filings by Idaho's three largest public electric utilities has
had, but this case has followed a path that substantially distances not only the general public from the
ability to provide meaningful input to the Commission but parties such as CAPAI as well. If the
Commission believes it worthwhile to formally implement a major change to the manner in which general
rate cases are handled, then it certainly possesses the legal authority to initiate and engage in an
adminishative rulemaking procedure for that purpose. To authorize such major change to general rate
case procedure through inference and by the approval of an unlawful, ad hoc, confidential, and hastily-
conceived process and product such as the proposed settlement stipulation in this case is not something
the Commission must accept. Public perception does matter and the process employed in arriving at the
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL 23
pending rate case settlement, regardless of how favorable it might be to ratepayen, is certainly not going
to bolster public confidence in the ratemaking process.
V. CONCLUSION
CAPAI respectfully requests ftat PacifiCorp b required to respond fully and in good faith to
CAPAI's discovery request No. 6(b).
DATED, this 30th dayofJuly,2013
Attomey forCommunity
Association of Idaho
BRTEF IN SI.JPPORT OF CAPAI'S MOTION TO COMPEL 24
CERTIFICATE OF SERVICE
I, the undersigne{ hereby ceftiry that on the 30th day of July, 2013,I served a copy of
the foregoing document on the following by electronic mail and U.S. Postage, first class.
Ted Weston
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 84111
ted. weston@pacifi corp. com
Daniel E. Solander
Rocky MountainPower
201 South Maie Suite 2300
Salt Lake City, UT 841I I
daniel. [e-mail]
Electrgnic Senrice. OnlY:
Data Request Response Center
PacifiCorp
datarequest@Faci fi corp. co m
Neil Price
Deputy Attomey General
Idaho Public Utilities Commission
472 W, Washington (837 02)
P0 Box 83720
Boise,lD 83720-0074
[e-mail]. eov
Randall C. Budge
Racine, Olsoru Nyc, Budge & Bailey
201 E. Center
P0Box l39l
Pocatello, ID 83204-1391
E-Mail : rcb@.racinelaw.net
Brubaker & Associates
16690 Swingley Ridge Rd., #140
Chesterfield, MO 63017
[e-mail]
James R. Smittr
Monsanto Company
P.O. Box 816
Soda Springs,D 83276
Jim.r. [e-mail]
BRIEF IN SUPPORT OF CAPAI'S MOTION TO COMPEL 25
Eric L. Olsen
ASSOCLATION, INC: Racine, Olsoq Nye, Budge & Bailey
(Exhibit Nos. 30 t-400) 201 E. Centpr
P0 Box 1391
Pocatello, ID 83204-139 I
[e-mail]
Anthony Yankel
29814 Lake Road
Bay Village, OH 44140
tony@.vankel.net
BenjaminJ. Otto
Idaho Conservation League
710N.6m Sr
Boise,ID 83702
botto@idahoconservation. ore
Ronald Williams
WilliamsBradbury, P.C.
1015 W. Hays St.
Boise, ID 83702
ron@wi I liamsbradbury.com
Don Schoenbeck
RCS,Inc.
900 Washington St., Suite 780
Vancouver, WA 98660
[e-mail]
Tim Buller
Agrium,Inc.
3010 CondaRd.
Soda Springs,lD 83276
[e-mail]
Ken Miller
Snake RiverAlliance
Box l73l
Boise,ID 83701
E-Mail : kmiller@,snalteriveralliance. org
BRIEF IN STJPPORT OF CAPAI'S MOTION TO COMPEL
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