Methinks Higgy et al should ask the CBC reporters Jacques Poitras and Robert Jones if they understand the meaning of the word Integrity N'esy Pas?

Matter No. 541      

NEW BRUNSWICK ENERGY AND UTILITIES BOARD

INTERVENER REQUEST

(Rule 3.2)

In Relation to an Application by: The New Brunswick Power Corporation

In Accordance with: 2023-2024 General Rate Application

TO: The New Brunswick Energy and Utilities Board

David Raymond Amos (“Proposed Intervener”) wishes to actively participate in the above-noted proceeding, and makes this Intervener Request in accordance with Rule 3.2 of the Board’s Rules of Procedure.

The Proposed Intervener states that he has a substantial interest in the above-noted proceeding and intends to participate actively and responsibly in the proceeding.

1.      David Raymond Amos as a Canadian Citizen residing in New Brunswick paying taxes on his private property is a stakeholder in the New Brunswick Power Corporation and is a client of the Applicant as well.

2.      The Proposed Intervener was involved with the 357 Matter and the Rate Design issues since it began and wishes to continue in the 529 Matter. He is much concerned about the proposed large increase in rates before the issues raised within the 357 matter have been resolved.

The authorized representative of the Proposed Intervener is:

David Raymond Amos

P.O. Box 809

Kars, NB

E5T 2X2

David.Raymond.Amos333@gmail.com

Final arguments set to begin over request for an 8.9% power rate increase

N.B. Power's largest customer J.D. Irving Ltd. has led the charge against the proposed increase

 

Robert Jones· CBC News · Posted: Feb 24, 2023 7:00 AM AST 

 

 

N.B. Power's acting president Lori Clark laid out the utility's case for an 8.9 per cent rate increase during the first day of hearings. (Jonathan Collicott/CBC)

 

N.B. Power's request for an 8.9 per cent rate increase enters its final phase in Fredericton today with closing arguments in front of the New Brunswick Energy and Utilities Board. Stiff opposition, led principally by J.D. Irving Ltd., has left the outcome in some doubt.

ABOUT THE AUTHOR

Robert Jones

Reporter

Robert Jones has been a reporter and producer with CBC New Brunswick since 1990. His investigative reports on petroleum pricing in New Brunswick won several regional and national awards and led to the adoption of price regulation in 2006.

RE: Matter 541 - Response to Undertaking #32

Matter 541 - NB Power 2023-2024 General Rate Application

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Closing Submissions

February 24, 2023

Page 1 of 13

NEW BRUNSWICK ENERGY AND UTILITIES BOARD

In Relation to an Application by: New Brunswick Power Corporation

In Accordance with: Section 103(1) of the Electricity Act, SNB 2013 c. E‐7, to the New Brunswick Energy and Utilities Board (the "Board") for approval of the rates it proposes to charge for its services for each fiscal year.

TO: The New Brunswick Energy and Utilities Board (the “NBEUB” or the “Board”)

Closing Submissions of Utilities Municipal

Introduction

Good morning panel. Thank you for the opportunity to participate in Matter 541 and it has been good to

be back in the same room for the hearing.

This is a difficult time for ratepayers – COVID has not yet been relegated to history, inflation is the highest it has been in decades and a recession lurks on the horizon – and may already be here for some. The last thing any ratepayer wants to see is the prospect of an 8.9% increase in electricity rates. We see this sentiment in the numerous comments from the public.

Unfortunately, we don’t have a financially healthy NB Power (the “Applicant”) that can cushion the impact of inflation for ratepayers. Net income is forecast to be less than $14 million and debt is forecast to grow.

The Company’s debt represents 93% of its capital structure.1

Even with such a significant increase, NB Power’s net income is forecasted to be only $13.9 million and net

debt is forecasted to increase by $39.6 million.2

Clearly, this situation is not sustainable. In this Application, NB Power included the goal of $50 million in

savings to reduce the amount of the increase to 8.9%. To achieve this, it embarked on an employee

buyout plan, it engaged PWC to find additional savings, it reviewed its spending and reduced its spend

and was making commitments to find further savings. Through this proceeding, UM acknowledges there

have been savings, and potential savings, identified by NB Power and Interveners that will meet or exceed this forecasted $50 million in savings necessary to achieve the revenue requirement. There have also been increases in costs.3 We encourage NB Power to relentlessly pursue cost control and savings.

However, safety and reliability cannot be sacrificed.

To the extent the identified savings herein are accepted by this Board, we leave it to the Board’s discretion to determine the balance between reducing the revenue requirement and ensuring NB Power is in a position to meet its net income objective. Reluctantly, we view the risk of further deterioration of NB Power’s financial state, and the consequences thereof, larger future increases and the potential sacrifice of reliability, too great to be able to recommend any reduction in the requested increase.

In addition to our comments on the revenue requirement, UM have comments regarding the interaction

of the new variance accounts and future general rate application and the process for future general rate

applications.

Setting the Stage for the Ask by NB Power

We are in an era with significant inflation, fuel price volatility, a COVID‐19 Pandemic and the supply chain disruptions, a significant unplanned outage at Point LePreau Nuclear Generating Station (“PLNGS”) and a premature replacement of the Bayside Generating Station have all restricted NB Power’s ability to meet its financial targets. As this Board will recall, NB Power had a series of General Rate Applications with sub‐ 2% rate increases pursuing the objective of “low and stable rates”.4 This has come at the expense of making progress on achieving a 20% equity ratio – in fact, the 93:7 debt:equity ratio is the same percentage as it was in 2015/16 fiscal year. However, now there is a mandate letter from the Minister setting a date for NB Power to achieve the 20% equity thickness in 2027.5 The impending need to replace several generation facilities beginning in 2027 makes achieving 20% equity all the more urgent!

It is in the midst of these circumstances that NB Power seeks an 8.9% increase in the rates. This increase

is proposed to be reduced through the clearance of the recently established Variance Accounts.6 Ms.

Clarke, the first President of NB Power to come before this Board in years, spoke of the need to balance

the financial objectives with ratepayer impact. UM agree such a balancing of interests must occur. Ms.

Clarke spoke of the commitment of the executive to achieving the forecasted results in the Test Year. In

her opening statement she said:

Second, we have taken steps to reduce the level of increase in operating costs. Over 18 million of cost savings were identified and acted upon through NB Power’s budgeting process. Another 27.5 million reduction has been applied to the budget and NB Power is committed to ensuring these additional cost savings are found.

We have engaged the assistance of external expertise to assist us in finding these savings and have started the process with the elimination of almost 150 positions through a staff optimization program that will save approximately 13 to $15 million in the upcoming fiscal year alone.

All of these elements led us to ask the Board for a one year rate increase of 8.9 percent. When we first started looking at this increase, we were in double digits. We dug deep to cut costs where we could, so we could reduce the ask for this increase.7

In addition, a new strategic plan is being developed. It is imperative that this plan provide a new approach to achieve concrete, aggressive gains provided in the Three Year Business Plan.8

The UM is encouraged NB Power is undertaking these initiatives. We know the management and staff of

the utility are good people. We are not questioning their sincerity, their commitment nor their work ethic.

However, history would indicate there remains an impediment to the successful execution in delivering

the forecasted results.

Further, while it may be tempting to just reject the request as too much, we must understand the fragile

financial state the utility is in. During a 3 month period from September to December 20229 the debt to

equity ratio deteriorated by 3% as result, in part, of the unplanned outage at PLNGS and Bayside

Generating Station. Inflation is forecasted to be “stickier” than forecast when this Application was filed.10

A further unforeseen circumstance could be disastrous. New Brunswickers need a financially stable,

efficient NB Power.

Finally, the Regulatory Variance Accounts and Deferral Account Regulation – Electricity Act11 provides a new element to this GRA. While the impact of the new variance accounts is proposed to mitigate the impact of the rate increase requested in this proceeding, the evidence suggests that mitigation will be reversed in the future year.12 On the positive side, customers and NB Power can be assured that forecast revenues/costs and actual revenues/costs balance will balance over time. It appears though that any forecasted gain cannot be used to increase net income and reduce debt. As such, it appears a tool to address the debt issue seems to have been removed from the NB Power tool box. It also reinforces the need to forecast better as only forecast net income from energy and fuel and purchased power will be available to pay down debt.

Cost Control, Context and History

To properly understand UM’s comments, we feel it is helpful to recall what happened in prior hearings

and what we have heard in this proceeding.

UM has been present at each General Rate Application since the revisions to the Electricity Act that

restored NB Power to a vertically integrated utility. In Matter 272, NB Power was forecasting to meet the 80:20 debt equity ratio in 6 years. In the Board’s Decision in Matter 272, UM notes that JDI had thought that time was too aggressive and that a 10 year horizon would be more appropriate. The Board stated in that decision the following:

[116] The Board recognizes the current state of NB Power’s capital structure as a significant

factor. Based on the 10‐Year Plan, the forecast for the fiscal year 2015/16 is 93% debt and 7%

equity. The declared Government policy in section 68 of the Act is that rates should provide

sufficient revenue to earn a return to achieve a capital structure of at least 20% equity. The

capital structure goal must in turn be considered by the Board in the context of all of the other

factors listed in subsection 103(7) of the Act, including the 10‐Year Plan and the IRP.13

In response to an undertaking in this proceeding,14 NB Power stated the debt:equity level was 93:7. UM

has in prior proceedings recognized the debt level as a problem and wanted greater emphasis on debtrepayment.15 Unfortunately, it turns out UM’s fears are being realized, that NB Power is spending more than planned and making no progress towards building equity despite its prior forecasts of having

Further, while it may be tempting to just reject the request as too much, we must understand the fragile

financial state the utility is in. During a 3 month period from September to December 20229 the debt to

equity ratio deteriorated by 3% as result, in part, of the unplanned outage at PLNGS and Bayside

Generating Station. Inflation is forecasted to be “stickier” than forecast when this Application was filed.10

A further unforeseen circumstance could be disastrous. New Brunswickers need a financially stable,

efficient NB Power.

Finally, the Regulatory Variance Accounts and Deferral Account Regulation – Electricity Act11 provides a new element to this GRA. While the impact of the new variance accounts is proposed to mitigate the impact of the rate increase requested in this proceeding, the evidence suggests that mitigation will be reversed in the future year.12 On the positive side, customers and NB Power can be assured that forecast revenues/costs and actual revenues/costs balance will balance over time. It appears though that any forecasted gain cannot be used to increase net income and reduce debt. As such, it appears a tool to address the debt issue seems to have been removed from the NB Power tool box. It also reinforces the need to forecast better as only forecast net income from energy and fuel and purchased power will be available to pay down debt.

Cost Control, Context and History

To properly understand UM’s comments, we feel it is helpful to recall what happened in prior hearings

and what we have heard in this proceeding.

UM has been present at each General Rate Application since the revisions to the Electricity Act that

restored NB Power to a vertically integrated utility. In Matter 272, NB Power was forecasting to meet the 80:20 debt equity ratio in 6 years. In the Board’s Decision in Matter 272, UM notes that JDI had thought that time was too aggressive and that a 10 year horizon would be more appropriate. The Board stated in that decision the following:

[116] The Board recognizes the current state of NB Power’s capital structure as a significant

factor. Based on the 10‐Year Plan, the forecast for the fiscal year 2015/16 is 93% debt and 7%

equity. The declared Government policy in section 68 of the Act is that rates should provide

sufficient revenue to earn a return to achieve a capital structure of at least 20% equity. The

capital structure goal must in turn be considered by the Board in the context of all of the other

factors listed in subsection 103(7) of the Act, including the 10‐Year Plan and the IRP.13

In response to an undertaking in this proceeding,14 NB Power stated the debt:equity level was 93:7. UM

has in prior proceedings recognized the debt level as a problem and wanted greater emphasis on debt achieved such 20% equity.

In subsequent general rate applications, UM has made submissions regarding disallowing specific costs.

However, UM’s position also sought to emphasize the need to control costs and build equity to have a

healthy NB Power in the long‐term. UM has been taking the long view, sacrificing small short‐term gains

for what it considered the better long‐term result. For example, in Matter 336,

[47] The 10‐Year Plan decreased the continuous improvement target in the period 2018 to 2027

by $211 million, compared to the previous plan. Ms. Clark testified that savings are taking longer

to materialize than what was originally anticipated.

[48] Mr. Stewart, counsel for J.D. Irving, Limited, argued that NB Power has an obligation to its

ratepayers to control its costs. Mr. Stoll, counsel for Utilities Municipal, supported and

encouraged NB Power to find efficiencies and to continue to improve its operations. However,

he noted that “any approach to cost cutting should seriously be reviewed so that short‐term

improvements in the debt to equity ratio are not given preeminence over having a healthy

company in the long term.”[10]

[49] The Board agrees that NB Power must continue to focus on continuous improvement

initiatives to increase productivity and reduce costs.16

In that proceeding, the company acknowledged cost control and savings were taking longer than

thought. Interveners were and continued to be legitimately concerned about costs, cost control and the

overall financial position of the company. For New Brunswick to fully succeed, NB Power needs to be

financially stable and efficient.

Once again in Matter 458, just three years ago, the last time the utility was before this Board for a

General Rate Application, cost control was again a focal point of concern. In the Board’s Decision, it

stated:

[112] Mr. Madsen, in his written evidence, made several recommendations where, in his

view, efficiencies may be found. Many of these recommendations are very valuable on a go

forward basis.

[113] Mr. Stoll, when commenting on the mandate letter, states that this directive now

“…requires extra focus on cost control” and that “…it doesn’t appear there has been any

meaningful change taken by NB Power in its approach.”

[114] In his closing argument, Mr. Christopher Stewart, counsel for J. D. Irving, Limited,

acknowledged that controlling and reducing costs is complex and “excruciatingly difficult.”

He submitted that, although not all of NB Power’s costs are directly within its control, difficult choices need to be made. He submitted that choices are not being made to the extent

that is required in the current environment.

[115] Mr. Stewart also argued that NB Power must do its part and control its costs submitting

that: “…if they are doing good, then they must be great. And if they are doing great, then

they must be excellent.” He recommends that the

… Board direct NB Power to begin focusing on its costs first before revenues. By

costs, I am referring to both operating and capital costs. Rate increases should only be

approved after all reasonable efforts to mitigate costs have been exhausted by NB

Power. A renewed focus on cost control and restraint is required.

[116] The Board agrees. NB Power must find a way to stay within its budget and reduce its

costs. The utility must stop overspending on items within its revenue requirements that are

within its control. It does not appear there has been any meaningful changes taken by NB

Power in its approach to control costs or reduce debt. Only modest improvements have been

seen on debt repayment.17

In Matter 513, just a few months ago, UM cross‐examined witnesses regarding the progress on

improving the debt:equity ratio and cost control. During Matter 513, UM again sought information to

understand what has changed at NB Power that would give this Board, ratepayers and interveners some

confidence that control was a priority at NB Power and that NB Power could better manage its spending.

The Board referenced UM’s position at:

[102] Mr. Stoll submitted, however, that NB Power might continue to fail to achieve its 10 percent ROE. He stated that the approach to spending by the utility seems to be backward as there is inadequate control on some of the utility's costs. He submitted that the utility is not operating within a spending envelope to ensure the return is earned. He stated that if the utility cannot manage its spending within the amount available to ensure that an appropriate level of return is available in future test years, it is inconsistent with the objectives set out in section 68.

In his view, it seemed that ratepayers are an endless source of funds.18

Again, UM was urging cost control but not at the risk of depriving the utility of the necessary return. The

Board, also concerned about the cost control by NB Power, stated.

[105] The Board is also concerned about actual costs being higher than initially anticipated and

the impact higher costs will have on future net earnings and rates. Rates have been set based on

a revenue requirement designed to recover an ROE of $25 million. Going forward, the Board will

monitor NB Power's financial results on an annual basis to determine if this is occurring.19

The evidence is clear that NB Power has not made meaningful progress on controlling costs and building

equity in the past. It is this past performance that informs and supports the skepticism of Interveners.

In the present Application, NB Power has been very clear that this year’s return is insufficient to make

meaningful progress in paying down debt, as it was legitimately concerned about the level of impact on

ratepayers. It appears a utility of the size of NB Power should be targeting between $80 and $120

million per year in net income. Because of cost pressures, including fuel prices, NB Power has sacrificed

progress on debt repayment to mitigate what would have been a larger rate increase.

However, despite the re‐commitment of NB Power, given the history above UM remains very concerned

that NB Power has not made the difficult choices nor installed sufficiently improved cost control

management and oversight to give comfort that it will achieve the 80:20 debt:equity in 4 years as set

out in the Minister’s Mandate Letter.20

In cross‐examination, NB Power was asked about the transmission capital expenditures. It was

acknowledged the capital expenditures for the transmission facilities was established prior to the Board

issuing its decision in Matter 513. In that hearing, the Board denied certain revenue requirement.

When asked whether the company revisited the capital program in light of the Board’s decision, the

witness panel was not aware of any review. 21

In our submission, when a regulatory body has expressed concern about a utility’s spending and went so

far as to disallow revenue, it would be reasonable for the utility to review its forecast spending in light of

the Board’s Decision.

While we acknowledge the efforts of PWC to review NB Power’s operations and identify cost savings, NB

Power has yet to accept such recommendations as the report to the Board of Directors has not been

made. Nor do we know the implementation costs of such recommendations. We view these savings as

a beginning of a reinvigorated effort to control and save costs. An effort that must continue with the

aim to offset requirements for future increases.

Our concern is that to effectively manage the business, NB Power should understand both the customer

trends and the drivers of such trends. In response to Undertaking 26,22 NB Power actual Residential

customer count was approximately 1% higher than the forecast for the current year. It was

acknowledged by Mr. Clark that there had been an unusual increase in population. While he correctly

indicated that there is not a 1 for 1 relationship between population and customer growth, no

explanation for the variance between forecast and actual customer counts was provided.

Another knowledge gap was the dramatic departure from the prior trend for the GS I and GS II forecast.

GS I had shown 8 years of relatively steady growth of approximately 1%.23 However, for the current

year a small decrease was forecasted, and for the Test Year NB Power is forecasting a reduction of 8% in

20 NBP the number of GS I customers.24 GS II, a closed class, has historically seen a small reduction in the

number of customers. It was felt that many of these customers were migrating to the GS I class.

However, in the Test Year, the GS II reduction was even more significant ‐ an almost 18% reduction in

the forecast number of customers. With such a dramatic shift, UM would have expected some analysis

or investigation to understand what was transpiring. However, Panel G indicated that this was the result

of the econometric model and could not provide further explanation as to what was occurring in their

customer base.

It is for these reasons that our hope and optimism of improved performance is clouded with skepticism.

Specific Adjustments to the Revenue Requirement

Now, in that view, UM has considered the evidence presented and (i) accepts the listed components of

the $50 million in savings identified; and (ii) has identified certain concerns with the revenue

requirement below. These measures should ensure that NB Power can exceed the forecasted $50

million in savings.

Bayside and Section 107(1) of the Electricity Act

In this Application, NB Power described that Bayside Generating Station was shut down in January 2022

as the result of a gas turbine failure. It was stated in the evidence this project was originally scheduled

as part of a rebuild in 2023/24 but had to be advanced 1 year.25 During cross‐examination, NB Power

admitted the expenditures up to and including December 31, 2022, was no longer $48.5 million, but

rather, $54.5million and that additional costs were still be incurred.26 Additional evidence in crossexamination indicated that expenditures have not been closed off and it is expected this will only be done by March 31, 2023. NB Power acknowledged an application under section 107 would be

forthcoming.

The Electricity Act, section 107, requires NB Power to obtain approval from the NBEUB for projects

where the capital expenditure is greater than $50 million. NB Power has yet to make an application

under s. 107 of the Electricity Act. UM acknowledges that Section 107(4) permits NB Power to obtain

approval after the expenditure occurs and may give retroactive effect to such expenditures provided the

enumerated condition are met.

This gives rise to the legal issue: Can this Board include in the approved revenue requirement a project

that requires approval under s. 107(1) but for which no application has been commenced? In our view,

the answer to this question is “no”. These expenditures have not been found to be prudent and should

therefore not be included in the approved rate base of this utility.

While NB Power may eventually obtain approval under section 107, if the Board was to permit its

inclusion in the revenue requirement, it may appear to reasonable observers to bind the Board Panel that will actually consider the Bayside Generating Station section 107 Application. Further, granting

approval would not encourage pre‐approval applications.

We expect NB Power will raise the argument that this Project was originally budgeted at $48.5 million

and such amounts should be included in the revenue requirement. We have the following comments as

to why this Argument must fail:

 Section 107(3) permits applications to be made for projects under $50 million and given the

estimate of $48.5 million, there should have been a real prospect about this project exceeding

the $50 million threshold. We note that NB Power has a history of over‐shooting its budgeted

costs. NB Power has further relied upon the volatility and inflation to justify its rate increase.

 NB Power knew well before this oral hearing that it had spent more than $50 million and did not

lead evidence regarding this change or the need to obtain NBEUB approval.

 Granting approval would have ratepayers pay for a project where NB Power has failed to come

into compliance with the requirements of the Electricity Act.

 The variance accounts that are tracking fuel and energy will provide protection for the impact of

the outage of Bayside so the only risk to NB Power is the timing element related to the approval

of the capital expenditure.

As such, UM would submit the impact of the capital expenditure from 2022/23 should be removed from

the revenue requirement. Any related interest charges or incremental depreciation related to the

Bayside Generating Station from the Test Year should be removed. In response to Undertaking 1327, NB

Power confirmed that $3.3 million in depreciation related to the gas turbine project is included in the

Test Year. In addition, the incremental $0.42 million in depreciation related to the incremental $6.3

million in capital expenditures should not be recovered until the project is approved. This overspend

included $1.3 million in interest during construction. The original forecast amount of $48.5 million

would be subject to financing charges in the Test Year. While no amount of financing charges were

specified for this, a 3% interest charge on $48.5 million is approximately $1.5 million.

UM submits a recognized savings of $4.8 million should be attributed to the failure to have the project

approved. UM submits this should not be allowed until approval under s. 107(1) has occurred.

AMI Project

In support of our concern about cost control, we would also point to the cost over‐run in the AMI

project. In response to UM’s Interrogatory, NB Power admitted that it was expecting the AMI was going

to be $5.6 million more than the Board approved amount.28 Approximately $3.6 million is an increase in

OM&A. NB Power goes on to state that despite having a fixed price contract for the supply of meters,

the meter supply company has provided notice of a $2 million additional cost. In our view, without

better justification, approval of such monies by this Board would only serve to weaken NB Power’s bargaining position with the meter supply company. As such, UM submits this $2 million should be

removed from the revenue requirement.

UM acknowledges, that as a capital expenditure, the impact on the Test Year will be the less than the $2

million.

Increase in Residential Customers and Gross Margin

In response to Undertaking 26,29 NB Power provided a revised forecast for the residential rate class

which showed approximately 4,000 additional actual customers as compared to the forecast number of

customers in the current year. As such, it is reasonable to conclude that such additional customers will

continue through the Test Year. NB Power stated the additional gross margin for such customers is $2.3

million.

Operations, Maintenance & Administration

In our review of the evidentiary record, much of NB Power’s evidence must be accepted.

Mr. Madsen identified a number of savings and recommendations. In our view, UM submits the Board

accept the savings of $12 million associated with the vacancy rates identified at Table 730. In crossexamination by JDI counsel, the calculations by Mr. Madsen seemed logical and were not adequately refuted.

In addition, UM notes that PWC has identified several potential cost savings in less than 12 months.

From our review of the Charters, it appears savings of between approximately $38 million and $72

million could be achieved in that time. However, we do not know the implementation costs or the

coordination or resources to achieve such savings. NB Power has indicated that it has already

commenced a couple of such opportunities. Accepting a fraction of the savings, along with the savings

discussed above, will permit NB Power to exceed its $50 million targeted cost reductions.

UM submits this results in a further potential savings which could be used to contribute to NB Power’s

net income and lower debt.

Uniform Rate Increase

NB Power requested a uniform rate increase for all rate classes (excluding water heater rentals). We

agree that is appropriate in the circumstances. NB Power described its rationale for the request in its

pre‐filed evidence to avoid undue rate increases for certain rate classes.

25 Deferring the use of differential rate increases will avoid subjecting customers to rate

26 increases that are higher than the proposed increases which are already substantial relative

27 to historic increases. Doing so will also allow time for a more effective consideration of

28 differential rates in a future proceeding based on the evidence filed in Matter 529 and

29 subject to consideration by the Board.

This was confirmed by Panel G during cross‐examination. We agree with NB Power in this regard.

Differential rates would raise the very real possibility of rate shock. Another concern, is the recent

variability in information arising from the “reinvigorated” load research gathered since the beginning of

COVID‐19 Pandemic. This data shows significant movement in allocation factors and it is unclear how

transient or permanent such changes may be.

In our submission, should differential rates be a consideration in a future application, then the notice of

such a hearing should include a reference to the potential that different rate classes may be subjected

to different increases.

UM supports the imposition of a uniform rate increase.

The New Variance Accounts, PROMOD and Updating the Evidence

The Variance Account Regulation prescribes a regime to track certain revenues and costs against the

approved forecast of such costs. This comparison occurs on a monthly basis. As mentioned above,

ratepayers are assured that over time, the difference between forecast and actuals should be

eliminated.

Mr. Musco testified that his recommendation for an update to fuel and purchase power was to provide

the Board with the best evidence. He was concerned that the 7 months since locking in the forecasts on

June 7, 2022 was a considerable time and that there had been significant changes in many variables. He

acknowledged that the NB Power hedging likely mitigated the result of any change but continued to

submit that the updated forecast would have value. We agree there is value in having such updated

information. He acknowledged in cross‐examination that Nova Scotia updates the fuel and purchased

power forecast approximately 30 days prior to the hearing.

In UM’s submission the need for the most accurate forecast takes on increased importance in light of

the variance accounts. It is clear that NB Power must have net income to pay debt and increase the

equity thickness. We don’t think anyone can dispute that. The variance accounts have the affect of

tracking any unforecasted margin and removing such from the utility’s net income.

To illustrate the situation, NB Power has identified that since its original forecast in this proceeding was

prepared, it was successful in winning new supply contracts.35 NB Power confirmed that upon winning

the contract it secured the supply to lock in a margin on the sale of such electricity. However, those

volumes, costs, revenues and margin will not appear in the approved forecast. Therefore, any gains,

gains that we now know will occur, will be captured in the variance accounts even though we know they

will occur. As such no amount of margin earned can be made available for debt repayment.

We are concerned that NB Power’s historical practice has been to underestimate the export margin.

Prior to the existence of the variance accounts such margins would enhance net income (or reduce net

losses). In subsequent years, the Board would be able to balance the allocation of that through

managing the increase in rates. That exercise of discretion has been eliminated. We are concerned that

this limits the progress that can be made in debt repayment.

NB Power has objected to providing such an update, and as we understand, if an update is required, NB

Power takes the position that it must be a holistic approach to updating costs and revenues.

Cherrypicking savings is not permitted. UM agrees that the process must be fair to both the utility and

ratepayers. In an update, material changes in the forecast should be considered in their totality.

However, we know that NB Power runs approximately 7 different PROMOD analysis a year. It runs a

new model every quarter. As such, providing an update on fuel and purchased power does not appear

to be an overly burdensome task but the current hearing process would need to be amended to

accommodate such a process.

However, we are not suggesting that such an update would be performed in this proceeding. This

position is a result of the current stage of the proceeding and the amount of work that would be

required to be completed to do a proper update of the evidence. However, in future proceedings we

would suggest the Board make provision for such an update in the schedule and also move the filing

date earlier in the year.

In our view, the presence of the variance accounts should incent NB Power to file the updates in the

future. NB Power requires achieving forecasted net income in order to pay down debt, fund capital and

build equity.

In an era of 8.9% rate increases, the delay of a month can have a significant impact on the ability of NB

Power to earn its annual revenue requirement. However, NB Power is in control of its activities and

should it wish to ensure that rates are in place for April 1 then it should take the necessary steps to

ensure sufficient time to have the evidence properly considered and a Board decision issued.

This hearing covered a significant amount of evidence in an extremely short timeframe. We would note

that future applications may include applications for multiple test years given the change to Section

103(1) of the Electricity Act. We note that significant increases in rates are likely in the future.36 As

such, we submit the Board should revisit the filing.

Summary of Requests for this Board:

In conclusion, we would request this Board:

 Reiterate the need for additional cost reductions, demonstrated cost control and debt

repayment.

 Require the filing of the new strategic plan with the Board in the next General Rate Application.

 Reduce the approved capital in the rate base by:

o $2million in respect of the AMI project;

o $54.5 million in respect of Bayside until approval is granted under section 107 is granted

by another Board Panel including the $3.3 million related to the increase in depreciation

associated with the new gas turbine.

 Accept the $2.3 million in additional revenue from the additional 4004 residential customers.

 Accept the following cost reductions:

o $3.3million in depreciation related to Bayside GS turbine replacement.

o 1.5 million in interest charges related to Bayside GS turbine replacement.

o $12 million in costs related to the vacancy rate calculation.

o Up to possibly $72 million less implementation costs, related to the identified savings

from PWC’s Cost Optimization Charters.

 Order an earlier filing date for future General Rate Applications to ensure an expeditious, fair

proceeding including an update of fuel and purchased power and other costs but still permit

rates to be in place by April 1.

 Confirm that it is the Board’s expectation that a revised version of PROMOD, or the appropriate

optimization analysis, should be made available 30 days prior to the oral hearing, along with a

summary of whether such information would cause NB Power to update other evidence or

impact the rate increase. This of course will need to be considered by the panel considering the

schedule at that time.

SUBJECT TO ANY QUESTIONS FROM THE PANEL, THOSE ARE OUR SUBMISSIONS.

UTILITIES MUNICIPAL

By Its Legal Counsel

Scott Stoll, LSO #45822G

NB Power Rate Design / Énergie NB - Conception des tarif

Mitchell, Kathleen <Kathleen.Mitchell@nbeub.ca>	Wed, Feb 22, 2023 at 3:44 PM
To: "ceo@fermenbfarm.ca"<ceo@fermenbfarm.ca>, "louis-philippe.gauthier@cfib.ca"<louis-philippe.gauthier@cfib.ca>, "frederic.gionet@cfib.ca"<frederic.gionet@cfib.ca>, "Ron.marcolin@cme-mec.ca"<Ron.marcolin@cme-mec.ca>, "David.Raymond.Amos333@gmail.com"<David.Raymond.Amos333@gmail.com>, "david.sollows@gnb.ca"<david.sollows@gnb.ca>, "hanrahan.dion@jdirving.com"<hanrahan.dion@jdirving.com>, "nrubin@stewartmckelvey.com"<nrubin@stewartmckelvey.com>, "coneil@stewartmckelvey.com"<coneil@stewartmckelvey.com>, "lmclements@stewartmckelvey.com"<lmclements@stewartmckelvey.com>, "pbowman@bowmaneconomics.ca"<pbowman@bowmaneconomics.ca>, "brudderham@stewartmckelvey.com"<brudderham@stewartmckelvey.com>, "JohnFurey@fureylegal.com"<JohnFurey@fureylegal.com>, "jpetrie@nbpower.com"<jpetrie@nbpower.com>, "NBPRegulatory@nbpower.com"<NBPRegulatory@nbpower.com>, "lgordon@nbpower.com"<lgordon@nbpower.com>, "SWaycott@nbpower.com"<SWaycott@nbpower.com>, "George.Porter@nbpower.com"<George.Porter@nbpower.com>, "bcrawford@nbpower.com"<bcrawford@nbpower.com>, Veronique Otis <Veronique.Otis@nbeub.ca>, "Young, Dave"<Dave.Young@nbeub.ca>, "Aherrington@lawsoncreamer.com"<Aherrington@lawsoncreamer.com>, "Mitchell, Kathleen"<Kathleen.Mitchell@nbeub.ca>, NBEUB/CESPNB <General@nbeub.ca>, "Colwell, Susan"<Susan.Colwell@nbeub.ca>, "bhavumaki@synapse-energy.com"<bhavumaki@synapse-energy.com>, "mwhited@synapse-energy.com"<mwhited@synapse-energy.com>, "prhodes@synapse-energy.com"<prhodes@synapse-energy.com>, "alawton@synapse-energy.com"<alawton@synapse-energy.com>, "jwilson@resourceinsight.com"<jwilson@resourceinsight.com>, "pchernick@resourceinsight.com"<pchernick@resourceinsight.com>, Melissa Curran <Melissa.Curran@nbeub.ca>, "richard.williams@gnb.ca"<richard.williams@gnb.ca>, "rdk@indecon.com"<rdk@indecon.com>, "tammy.grieve@mcinnescooper.com"<tammy.grieve@mcinnescooper.com>, "paul.black@twinriverspaper.com"<paul.black@twinriverspaper.com>, "Hoyt, Len"<len.hoyt@mcinnescooper.com>, "tyler.rajeski@twinriverspaper.com"<tyler.rajeski@twinriverspaper.com>, "darcy.ouellette@twinriverspaper.com"<darcy.ouellette@twinriverspaper.com>, "dan.murphy@umnb.ca"<dan.murphy@umnb.ca>, "jeff.garrett@sjenergy.com"<jeff.garrett@sjenergy.com>, "shelley.wood@sjenergy.com"<shelley.wood@sjenergy.com>, "dan.dionne@perth-andover.com"<dan.dionne@perth-andover.com>, "pierreroy@edmundston.ca"<pierreroy@edmundston.ca>, "ryan.mitchell@sjenergy.com"<ryan.mitchell@sjenergy.com>, "sstoll@stollprofcorp.com"<sstoll@stollprofcorp.com>, "pzarnett@bdrenergy.com"<pzarnett@bdrenergy.com>
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Good afternoon,   Please find attached a letter from the New Brunswick Energy and Utilities Board in relation to the above noted Matter.     Bonjour,   S'il vous plait trouver ci-joint une lettre de la Commission de l’énergie et des services publics du Nouveau-Brunswick ayant trait à l’instance susmentionnée.         Kathleen Mitchell Chief Clerk / Greffière en chef (506) 658-2504 (General/Général) (506) 643-7324 (Direct/Directe) Confidentiality Notice This message and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. It must not be forwarded unless permission has been received from the sender. Disclosure to anyone other than the intended recipient does not constitute a waiver of privilege. If you have received this message inadvertently, please notify the sender, delete the message and then delete your response. Thank you. Avis de confidentialité Ce message ainsi que tout fichier qui pourrait l’accompagner sont confidentiels et destinés uniquement à l'usage de la personne ou de l'entité à laquelle ils sont adressés. Il ne doit pas être réacheminé sans la permission de l'expéditeur. La divulgation à toute personne autre que le destinataire prévu ne constitue pas une renonciation au privilège. Si vous avez reçu ce message par inadvertance, veuillez en informer l'expéditeur, supprimer le message, puis votre réponse. Merci.

Matter 529 - NB Power Rate Design - Technical Conference

NEW BRUNSWICK ENERGY and UTILITIES BOARD

COMMISSION DE L’ENERGIE ET DES SERVICES PUBLICS N.-B.

Matter 529

                           Henneberry Reporting Service

NEW BRUNSWICK ENERGY and UTILITIES BOARD

COMMISSION DE L’ENERGIE ET DES SERVICES PUBLICS N.-B.

Matter 529

IN THE MATTER of an application by the New Brunswick Power Corporation with respect to proposed changes to its rate structure, rate classes and rate design

   Held via Videoconferencing, on January 6, 2023.

Members of the Board:

                  Mr. Christopher Stewart - Member 

                  Mr. John Herron         - Member

                  Ms. Heather Black       - Member                 

Counsel to Board Staff - Ms. Abigail Herrington

............................................................ 

   MR. STEWART:  Good morning, everyone.  This morning we have before us a motion for direction from NB Power.  And I will start by taking appearances.  The Agricultural Alliance of New Brunswick?  Anyone here from the Agricultural Alliance?  Okay.  The Canadian Federation of Independent Business?  The Canadian Manufacturers & Exporters?

  MR. MARCOLIN:  Yes, good morning.  Ron Marcolin here until 11:00 a.m.  Thank you.

  MR. STEWART:  All right, Mr. Marcolin.  David Amos?  Mr. Amos, are you here?  Mr. Amos, you may be on mute if you are trying to speak to us.  Mr. Amos, I don’t know if you can hear me, but your microphone may be on mute.  We are just looking for you to make your appearance.  Mr. Amos, are you there now?

  MR. AMOS:  Yeah.

  MR. STEWART:  Yeah, we can hear you now.  Yes.

  MR. AMOS:  Yeah, I think Kathleen had me muted.

  MR. STEWART:  Oh, perhaps so.  But you are here and you are with us this morning.

  MR. AMOS:  Yes, here now.

  MR. STEWART:  All right.  Thank you.  J.D. Irving, Limited?

  MS. RUBIN:  Good morning, Mr. Chair, Nancy Rubin and Brianne Rudderham on behalf of J.D. Irving.

  MR. STEWART:  Good morning, Ms. Rubin.  NB Power Corporation?

  MR. FUREY:  Good morning, Mr. Chair, John Furey.

  MR. STEWART:  Good morning, Mr. Furey.  Twin Rivers Paper Company Inc.?  Mr. Hoyt, I see you on your screen but we can’t hear you if you are speaking to us.  Mr. Hoyt, can you hear us?  I saw him up earlier with his camera on.  All right.  Well we will move on and we will circle back to Mr. Hoyt when he gets the -- so The Union of Municipalities of New Brunswick?  Anyone here from the union?  And Utilities Municipal?

  MR. STOLL:  Good morning, Mr. Chair, Scott Stoll here.

  MR. STEWART:  Good morning, Mr. Stoll.  And the New Brunswick Energy & Utilities Board?

  MS. HERRINGTON:  Good morning, Mr. Chair.  Abigail Herrington on behalf of Board Staff.

  MR. STEWART:  All right.  Just before we begin, I just want to make sure that we can -- there is Mr. Hoyt.  Are you with us, Mr. Hoyt?

  MR. HOYT:  I am with you.  Sorry, technology challenges.

  MR. STEWART:  No worries.  No need to apologize for that, certainly not to me, in any event.

    All right.  So counsel, and particularly for those parties that aren’t represented by counsel, so the Board has sort of determined that we are going to deal with a motion that’s before us, in essence, in sort of two steps.

    So how we would prefer to deal with this is to hear argument on sort of the first two aspects which are I think intertwined.  That is the scope of the matters in issue in this proceeding and the relevance of the particular IRs that are being challenged by NB Power in their motion, I guess.

    So we don’t need to hear you initially or at least just now on what, if any, changes to the schedules that may be necessary depending on where -- how all of that turns out at the end. 

    Frankly, it just seemed to us that it’s difficult to have a discussion about, you know, what effect it might have on the schedule, if any, if we don’t really understand what we are dealing with.  I mean, the results here could end up with -- you know, that the IRs don’t need to be responded to in which case the issue is kind of moot to them all being required to be responded to, to obviously somewhere in between.  So until we have a handle on that, it seemed to us not necessary to -- or not helpful to get into a discussion about what the consequences of that means until we know what we are dealing with. 

    So first, let’s just hear the parties on those issues and we will sort of move on to part B in sort of the fullness of time hopefully a little later this morning.

    So how we are going to proceed this morning is, Mr. Furey, we will hear you obviously as the applicant in this motion.  And after we will hear briefly from each of the interveners as to how they want to weigh in on the particular issues.

    I will indicate that to those interveners who have filed written submissions, thank you very much for those, frankly.  But I will, you know, confirm that all of the panel has read all of those submissions thoroughly and carefully, so by all means make whatever submissions you feel are appropriate this morning.  But rest assured that we have carefully reviewed what has been filed and running so far.  And after we make the round of all the interveners, Mr. Furey, you will have the sort of final word, so to speak, to address anything that’s not been -- or anything new that’s been raised by any of the interveners that wasn’t otherwise covered in their written submissions.

    So anyone have any questions on any of that?

  MR. FUREY:  Mr. Chair, I do have one question.  I had a thought in terms of a slight variation on what the Board perhaps has already determined and I may be too late in suggesting this.  Often the Board asks the parties to determine if there is any potential resolution in a situation like this and while I do not believe that there is potential for resolution on the fundamental issue of what is in scope, once that issue is determined, I think it might be relevant for the parties to have a discussion about what IRs are in or out based on the determination of the Board on that issue. I'm quite prepared to argue both of those issues this morning, but it's just a variation on the theme of what the Board had suggested.

  MR. STEWART:  So are you -- so just so I understand your suggestion, Mr. Furey, you are suggesting that you want to separate the first like both of those issues, the relevance IRs and then the scope of the proceeding?

  MR. FUREY:  Yeah.  I don't want to complicate things too much.  I don't want to get into a three stage thing, but my thought coming in was that if the Board had suggested perhaps the parties should talk about it, my response was going to be I don't think there is value in talking about resolving the scope.  But if the Board made a decision on what is in scope and what is not in scope, then I think there's an opportunity for parties to then have a productive discussion about what interrogatories should be answered and when.

  MR STEWART:  All right.  I have to say my inclination is  that, you know, largely those -- you know, there's a lot of overlap between those arguments in terms of, you know, why is a particular IR relevant to how it turns into scope, so I think it would be difficult to bifurcate that or I’m not sure that it would  -- you know, I get your point, but I'm not sure that it is going to, you know, get the efficiency that you are seeking.

  MR. FUREY:  I would be concerned about three stages although I am quite prepared to proceed as the Board has suggested this morning.

  MR. STEWART:  So why don't we do that?  I guess I would say that, you know, frankly, if it is possible for us to -- the Board, you know, to come to a decision on these matters, you know, this morning, it would seem appropriate then that the parties have -- you know, have a discussion of an ADR type about the scheduling and what, if any, consequences that has depending on where we land on the first issue.  So all of that being said, Mr. Furey, if you are ready, why don’t you proceed and we will go from there.

  MR. FUREY:  Thank you, Mr. Chair.

  MR. STEWART:  You are most welcome. 

  MR. FUREY:  So as I have indicated just a moment ago, primarily what NB Power is seeking in this motion is direction from the Board as to the matters in issue in this this particular proceeding, which the Board has described as being phase 1 in a three phase approach to modernizing rate design in its decision of August 4th 2020.

    And in particular, the first issue that NB Power is seeking direction on is the extent to which matters of cost allocation are in issue in this particular proceeding.  In the event that the Board agrees with NB Power’s understanding of the scope of the proceeding, NB Power then seeks direction of the relevance of certain IRs that have been identified in the motion.  In the event the Board decides that there are matters not identified in the decision of August 4th 2020 that our end scope in this application in phase 1, then as the Chair already mentioned, NB Power is seeking leave to file additional evidence and relief with respect to the schedule.  I won't be addressing that this morning as directed.  And similarly in the further alternative NB Power is asking for an extension of time.  And again I won't address that issue this morning until directed by the Board.

    The motion contains a summary of the history of cost allocation rate design matters since Matter 271.  I am going to go through the history in just a little more detail this morning.  As a preliminary matter, primarily because the Public Intervener, in his written submissions, has suggested that this motion is motivated by a desire to delay, I think it’s necessary to review the history because the history simply does not support that submission.

    So Matter 271, which was a cost allocation matter, was filed in October of 2014.  Hearing date was set for April of 2015.  And in March of 2015 there was a letter from Utilities Municipal that prompted a procedural conference.  At that procedural conference there was an informal resolution in advance of the conference.  The parties essentially achieved a consent order where NB Power agreed to do a number of studies that had been put forward by a different interveners.  There was a formal order issued by the Board requiring NB Power to do those studies.  That was on the 9th of April 2015.  The studies ordered were completed by the end of October 2015.  The hearing proceeded and a decision was issued by the Board on May 13th of 2016.

    So a few months passed and then later in 2016 in August, NB Power was directed by the Board by letter to file a rate design application by May 1st 2017, which it did. As part of the Board's decision in Matter 271 NB Power had also been directed to file a proposal on the implementation of seasonal allocation of costs and NB Power met that directive, filing that additional evidence in Matter 357 on June 1st 2017.

    There was a motion to adjourn Matter 357, which is what that application became, in September of 2017.  That motion was granted.  The Board granted the adjournment  later in September, on the basis that the AMI application should precede rate design and therefore an adjournment was in the public interest.  That's an oral decision in a transcript dated September 21st 2017.

    So the Board determined that it was in the public interest on the request of NB Power.  At that time, the Board had initially ordered rate design to be heard with the 2019/20 GRA.  But frankly, after the experience of having AMI heard together with the GRA in the 2018/19  GRA, think everybody reconsidered the impact that trying to do two things in one hearing has and the Board and parties concluded that rate design should be heard as a separate proceeding.

    And so that led to a procedural conference initiated by the Board on the 12th of October 2018.  And at that procedural conference, the Board concluded that it would retain an independent facilitator to conduct a stakeholder engagement process.  The Board did so, and that process continued until the Brattle Group presented its report to the Board on May 12th 2020.

    Parties then had an opportunity to file submissions to the Board, which they did by May 29th of 2020, and the Board issued a decision in August of 2020 ordering NB Power to file a further redesign application by the 30th of June of 2021.

    There was a subsequent application by NB Power to vary that timing to June 30th 2022.  That was filed by NB Power in May of 2021 as Matter 497.  And it was based on evidence related to the state of the pandemic and the likely inability of affected customer classes to meaningfully participate in a hearing based on the original filing date.  That application, by the way, was supported by both Utilities Municipal and the Public Intervener.  And the Board at paragraph 22 of its decision on June 16th 2021 in Matter 497 said, Due to the continuing impacts of the COVID pandemic, the Board recognizes that some people may not have this opportunity, meaning the opportunity to participate, should the proceeding continue as currently scheduled. So the date was altered to June 30th 2022 and NB Power filed within that timeframe.

    So we would submit based on that history of the proceeding that there is absolutely no credence that should be given to the suggestion that NB Power is trying to delay.  Quite frankly, I think unintentionally the position of the Public Intervener would contribute to delay.  We are arguing about Whether we should Be dealing with issues rather than dealing with the issues the Board has directed and then moving on to the next phase.  But that's the history.  What is really required for directions this morning is for the Board to tell the parties what is in scope in this phase of the three phase process that was determined by the Board in its decision in Matter 357.  And so the question becomes what was ordered by the Board.  NB Power’s submission is relatively simple.  The Board had previously approved the cost allocation study in Matter 271, that has been modified only incrementally and in relatively minor respects since that time.  The Board's direction in its decision in Matter 357 confirms that the matters in scope in this first phase of rate design generally do not include CCAS matters.

    And I would like to just very briefly go through what NB Power was ordered to do in that decision.  At paragraph 25 the Board ordered NB Power to continue its load research program and to file the results.

    At paragraph 31, the Board ordered NB Power to submit a proposal for the appropriate classification of commercial and industrial classes.  The Board expressly said that might include creation of new classes or a new approach to customer classification.

    At paragraph 35, the Board directed NB Power to submit a proposal for the timely elimination of the GS2 class.  At paragraphs 36 to 39 NB Power was directed to address issues arising from inclusion of certain farms, churches, and charitable organizations in the residential rate class.

    At paragraph 42 NB Power was directed to file a proposal as to whether or not the Board should or should not forbear from regulating street lights, unmetered customers and water heaters.  And this is where it's interesting, because at paragraph 42, the Board then addresses a small matter of cost allocation.  What the Board says, having made the order that NB Power should file the proposal as to whether or not the Board should forbear from regulating those three services, the Board says, NB Power is also directed to file an updated cost of service model for these classes.  So there is a very specific direction in the Board's order as to what cost allocation updates should be filed in this first phase of rate design.  And it is limited to an updated cost of service model for those three services.

    So the question becomes not that it’s absolutely necessary to go behind it, but why did the Board order that?  And if you go to the process and the submissions of the parties following presentation of the Brattle report, I think there is some answer to that.

    At page 31 of the Brattle report, Brattle says stakeholders all agreed that this form of embedded cost study remains appropriate for cost allocation purposes and that the CCS would need only be revisited to the extent required to enhance equity or accommodate new issues or customer class definitions.

    The UM submission, I think is quite illustrative, subject to issues of seasonal cost allocation that I will get to in a moment, UM states at page 3 of its submission there was in UM's understanding no indication that any stakeholder feels the existing embedded study is flawed in any significant way.  And no other party filed any submission to the contrary.  So makes a great deal of sense to me that of course the Board did not order any further update to the class cost allocation study methodology because the parties had not asked for it.

    NB Power's basic submission here is that the parties had gone through an approximately two-year stakeholder process, one of the principal purposes of which was to develop a road map for the timing and order of dealing with rate design matters.  And the Board issued a decision directing some very specific things to take place in this phase.  And I would submit what the parties are seeking to do now is turn this into a bit of a free for all that any issue is open for the scope of the current proceeding.  And our submission is, that's clearly not what the Board ordered in its decision in Matter 357.

    I would like to specifically address the issue of seasonal cost allocation and seasonal rates.  JDI, in its submission, at paragraph 31 argues that this should be, I think the wording they use is considered as a possible issue for discussion on this application, so I am not 100 percent sure what their intention is.  NB Power does not agree that seasonal cost allocation and seasonal rates are in scope at this time.  They will be in scope later, but they’re not in scope at this time. And again, this requires some history.

    This issue was first raised by JDI in Matter 271.  And in the decision in Matter 271, ultimately, the Board concluded that energy related fuel and purchased power costs should not be allocated at this time without a corresponding rate design, and that's paragraph 92 of the Board's decision in Matter 271.

    And the Board gave two reasons for that.  First they said it would deny rate classes the necessary price signal to encourage changes in consumption, and secondly it would create an intraclass unfairness that would arise in the absence of having an appropriate rate design complementary to seasonal allocation of costs. And as I said earlier, NB Power was ordered by the Board at the conclusion of Matter 271, to file a separate proposal by June 1st 2017 on the implementation of seasonal allocation.  It did so and maintained its position that that allocation should not occur until appropriate and complementary rate designs are in place. And I'm not going to go to them, but I'm simply going to refer the Board to exhibits NBP 2.01 in Matter 357 and the supporting Elenchus report that appears at NBP 2.03.

    So if we jump forward then to the stakeholder process, the Brattle report addressed the stakeholder views on seasonal rates as item number 11 on its list of rate design topics.  That's a page 37 of the report.  The Utilities Municipal submission on this, I think is again -- provides the Board with some value in terms of a summary of what happened.  And I'm referring to pages 3 and 4 of the UM submission.  I'm not going to read a lot of it, but there's a couple of salient points.  UM says at the second, last paragraph on page 3, UM also believes there is a consensus understanding that the approved study, meaning the cost allocation study, would need to be modified to provide a seasonal allocation should the Board decide to move forward seriously with seasonal rates and to do so on the basis of embedded costs.  Beyond that, there was in UM's understanding, no indication that any stakeholder feels the existing embedded study is flawed in any significant way, as I said earlier.

    And then at the top of page 4, UM says, on this basis it is UM's view that unless the Board decides to pursue seasonal rates based on embedded costs, either as a temporary or permanent rate structure, no significant resources need to be directed to embedded cost allocation at this time.  So again, it makes sense -- well before I go to that, the -- there were also extensive submissions by NB Power at that time -- I am not going to go through them -- on the issue of seasonal cost allocation and seasonal rates.  The end result is that the Board, having identified issues for inclusion in phase 1, did not include seasonal rates or seasonal allocation costs in this phase.  It has not been forgotten by the Board, as JDI seems to suggest, it has simply not been included in this phase.  And I would submit it is unreasonable for a party to think that the Board would give a detailed list of items that are not in scope for this proceeding.  What the Board has done is give the parties direction as to what is in scope, and I have already gone through those aspects of the Board's decision.

    I do think the other aspect of the Board's decision that's important, having gone through all of the different specific orders, the Board at paragraphs 47 to 49 of the 357 decision indicates that there would be a three phase process.  And at paragraph 49 very clearly says, the first phase will begin with the filing of an application by June 30th 2021 to address the issues identified above, meaning the issues that I have already talked about, the various proposals and the limited update of the class cost allocation study.

    There is an important aspect of procedural unfairness that will arise if the Board now adopts a different approach.  If the Board now concludes that in this phase all matters related to class cost allocation are open to challenge, including seasonal allocation of costs, it creates procedural fairness.  Both to NB Power and other potential interveners.  As applicant, I would submit NB Power is entitled to rely on the Board's determination of the scope of phase 1 in this three-phase concept.  NB Power has expressly not filed evidence directed at class cost allocation matters because of its understanding of what the Board directed was within scope in this proceeding.

    More importantly, I would suggest, there are other potential parties that have relied on the Board's decision as to scope of this application in making their decision to intervene or not.  Everybody knows that seasonal allocation of costs as an example and seasonal rates, given the high penetration of baseboard heating in the New Brunswick electricity system has the potential to create significant impact on the residential class.  And in particular create some intraclass fairness with respect to those residential customers in that class who do not heat with electricity, who use other forms of heating.  They are going to get allocated costs that they actually don't contribute to.  That's why NB Power has consistently argued that until there's a rate design, complementary rate designed to deal with those issues, it's premature to allocate the costs.

    But the Board is well aware of the difficulty that it faces in terms of the lack of representation of the residential class before the Board.  If the Board were now to say yes, seasonal allocation of costs is fully in scope, I would suggest that members of the residential class will have been deprived of procedural fairness. They will have been deprived of their right to be heard by virtue of not receiving appropriate notice of what was in scope in this proceeding.  So I think that's a significant issue for the Board in assessing what the scope is.

    I will now turn to specific interrogatories, Mr. Chair.  I am not going to deal with them in a every specific IR sense.  I'm going to deal with a couple of the highest level ones, the ones that concern NB Power the most.  And then I'll have some comments on individual ones as well.

    So the first one that that NB Power is highly concerned about is in PI IR-14(e) and (f) and JD IR-28(b).  And essentially both of these IRs are requesting a full class cost allocation study model for the proposed classes that has been put forward by NB Power.      Frankly, that class cost allocation study cannot be completed now and let me explain why that is the case. In order to complete a class cost allocation study, you need to have the rate classes identified.  Well we do have that on a -- in a proposed sense.  But we also need to have rates.  The Board would have to tell us what rates have to go into that study because you need rates to determine the revenue for each class, you need a load forecast and a revenue forecast based on that load forecast for each of the proposed classes as inputs to that CCAS model.  You would need load research to determine what share of peak demand each of the new classes would be assigned, and you would need possibly a new sample design for each of those proposed classes to ensure that it is statistically reliable.

    This is months and months of work and NB Power has not undertaken that in the absence of approval in principle of the classes proposed.  What NB Power has done, and the evidence has been put forward in this matter, is to determine to reach a proposal on classes, particularly with the commercial industrial classes, that is determined by an analysis of the load characteristics of those customers.  The actual -- based on actual billing data.  Not by reference to an aggregated CCAS.

    So I want to put this in context.  NB Power, in this application, is not seeking final approval of the rate classes that it has proposed in that specific proposal directed by the Board.  What NB Power is requesting is approval in concept.  And once the Board says this is approved in concept, in phase 2, there would be extensive CCAS modelling done so that the Board is able to then determine what the appropriate rates are, any particular aspects of rate design, whether the class cost allocation study demonstrates any difficulties with the class proposed and if they can be adjusted in those phases.  But I wonder if -- if the concerns of parties is that they feel -- certainly the Board Staff submission seems to indicate they are concerned that the Board might go down a path at this stage that -- excuse me -- is that it can’t overcome at a later stage, that somehow the Board proceeds on incorrect information and we end up making a mistake.  Well, that's not going to happen, that's not a legitimate concern.  There will be opportunity for the Board, in phase 2, to examine in detail, for all parties to examine in detail a class cost allocation model specific to the classes approved by the Board in principle.  Not just suggested by NB Power.

    So I view it -- I know we don't use the term in the evidence.  But I view the approval in concept as a straw man.  This is a straw man of recommended classifications of customers, the Board may alter it based on input from -- from parties as part of this proceeding.  And then in phase 2, whatever particular classification the Board orders will be examined in detail through the class cost allocation studies that that are being requested at this point.

    So for those reasons, NB Power doesn't believe that it's appropriate to order that at this stage.  It is not -- it's simply not in scope at this point.  Now the second IR that I would like to address is NBEUB-54.  And in that interrogatory Board Staff have asked for all input sources, work papers, assumptions, basis for assumptions, frequency of updates and reasons for the frequency for the class cost allocation study from both Matters 529 and 541.

    So I think there is a couple of problems with this.  One, as I have already argued, this is not -- this is clearly not in scope.  This is the -- if the Board intended that it was going to completely revisit all matters of cost allocation, this would be a relevant question.  It's not relevant to determination of the specific rate design proposals that the Board has directed NB Power to make.

    Now I take Board Staff’s submission as arguing, well, yeah, I don't think -- I don't interpret Board Staff submission as arguing that class cost allocation is actually in scope.  They seem to be arguing that there is relevance to this material to determination of the rate design issues that are in scope.  And I would suggest there is simply nothing in Board Staff’s submission or the submissions of any of the parties that demonstrates how you would use this detailed cost allocation information, and it's extremely detailed and will take weeks or months to compile.  There is nothing in that information that will allow parties to make different representations with respect to what classifications of customers should be.  That's based on the individual billing data and load characteristics of groupings of customers.

    So in the absence of some -- some linkage, there is simply no relevance to that material.

    NBEUB IR-61(b), (c), (d), (g), (h) and I don't know if that's (l) or (i), I apologise.  The request here is for very detailed transmission data.  It is again in NB Power’s submission, it’s not relevant to the issues in this proceeding.  It is extremely detailed and some of it -- I mean, this is not a reason not to order it to be provided, but some of it is simply not tracked.  And of course, our answer might be simply that.  But it’s not relevant, is the basic submission.

    NBEUB IR-63 request detailed substation data.  Again, this is detail associated with class cost allocation. There has been no relevance established as to how that would assist any party or the Board in its assessment of the classification of customers for rate design purposes.

    EUB IR-66, same issue. The Board Staff are requesting detailed deferral accounting information, but there’s no CCAS changes that are related to those deferral accounts, so I’m not sure – I’m not sure how that is relevant.

    PI IR-9(a) and (b), request corporate services cost allocation, again they are all details about the cost allocation model and there simply has been no – there has been no linkage.  The parties say it is relevant.  We need -- we need it to assess the rate design proposals put forward by NB Power.  But they don't say how.  No one has said this is what I can do with this information to inform my position on those proposals. Those proposals developed by Christensen** -- the four alternatives -- are all based on actual billing data and load characteristics of individual customers.  How aggregated CCAS information assists in that determination escapes NB Power entirely.

    I may have dealt with the seasonal.  There are two -- there are two interrogatories that request – there’s seasonal cost allocation issues, JDI IR-20(e) to (j) are all questions related to seasonal cost allocation.

    PI IR-7(a) and (b) fall into the same category.  And I won't go through any more detail other than to say for the reasons I have already argued, seasonal cost allocation is simply not an issue at this stage of the proceeding.

    And one last specific IR that I will address is PI IR- 8(a).  And this is a request from the Public Intervener for the Matter 458 compliance model in the old format. Now this is a little technical and I may get this wrong, but my understanding of what has happened here is that there was -- the model has been reformatted.  And what it does -- principally what it does, there is no substantive change to how the model operates.  There is no substantive change to how the model operates.  But it has been reformatted, made easier to use and review.  And probably the biggest change is that many of the assumptions that were previously embedded in the study and the various tables throughout the study and tabs are now in an input tab.  And frankly, I think one of the issues that has arisen is that now that it is apparent that there are 400 -- approximately 400 input tabs, parties, EUB staff in particular, want to understand how every assumption was arrived at.  And frankly, that's simply not in scope in this proceeding.

    But what has happened with the reformatting is that there was a -- an old version, the old formatted version was used in previous matters.  It was updated.  And now the new format has been used for the first time in this filing and what the PI wants, I think, is to get the old formatting with the updated information used in this proceeding.  And NB Power simply doesn't have it.  They have not updated the old format.  They Are moving forward with the new format that nobody else seems to have any difficulty with.  I think is more user friendly and more helpful to the Board and parties.

    So I may have missed a specific IR or two, Mr. Chair, but they would generally fall under the issue of relevance of class cost allocation questions to matters in scope in this issue -- in this in this proceeding. Subject to questions from the Board, those are NB Power’s submissions.

  MR. STEWART:  Thank you Mr. Furey.  Mr Herron, do you have any questions for Mr. Furey at this time?

  MR. HERRON:  I likely would have potentially more after the other interveners had a chance to weigh in so -- but I do have a couple of questions.  Just they are -- they are quite high level.  So -- and I think you, Mr. Furey, you have touched on most of them in your argument.  So  you may not have to make a deep dive reply, but just I just wanted just get some high level understanding, if you follow -- follow me.

    Just specifically, if I were to look at your paragraph number 8 of your motion.  I don’t know if Ms. Mitchell can pull that up.

  MR. STEWART:  I think there is an effort – there is an effort to do that right now.

  MR. HERRON:  It may not be particularly necessary, but I think at the highest level, you would -- you would agree with me that it is very -- it is difficult to decouple all issues of rate design from customer class allocation because one feeds into the other.  So I think I think on that point I wouldn't -- I don't expect a lot of pushback from -- Mr. Furey, would you agree with that statement?

  MR. FUREY:  The two are connected in the sense that the Board is not able to perform rate design, final rate design in terms of setting rates confirming -- well let me do it in the proper order -- confirming the customer classifications in a final way, setting specific rate designs and rates, it cannot do that, I agree, without – without a cost -- class cost allocation study that mirrors the classes being proposed or approved by the Board.  Once the Board says yes, these are the classes that we want, that we are going to approve in principle, unquestionably there has to be a class cost allocation study of the revenues and costs that are assigned to those new classes.  No question.  The question here though is what value is an updated CCAS in deciding whether or not the Board approves these customer classifications in principle, because that is the request.

    There is no contemplation that the Board, at the end of this phase of the proceeding, is going to give a final order that says here are the classes, full stop, and we are just going to move to a rate design of specific rates for those classes.  That is not what is contemplated. 

    So I agree with you, but in the context of where we are, I dispute the relevance of the class cost allocation information to what the Board is doing in this phase.

  MR. HERRON:  Okay.  So would it be fair to say that you not only harbour concern over the set of IRs that you have before you now, but you have concern that if there were, as you would phrase, a broader scope that potentially the next set of IRs could be even more problematic?

  MR. FUREY:  I think there are two reasons why NB Power felt it was important for the Board to provide direction as early as possible.  That is clearly one of them, because if this issue were unresolved, parties will go down the path even further and if this information were provided, then we would be wading about in cost allocation matters when, in NB Power’s view, that is not part of this phase of the proceeding.  So that is one.

    I think more important though is -- the determination of scope is even more important from the perspective of the evidentiary record and the impact that that may have on procedural fairness.  And what I mean is this, if, for example, seasonal cost allocation and seasonal rates are in scope in this part of the proceeding and NB Power, I suggest, legitimately believed that they were not based on the Board’s decision, then that would mean that interveners are now free to spend, and possibility have been spending time preparing expert evidence on that issue.  And so the Board may see expert evidence at the time it is scheduled to arrive in the filing schedule suggesting just that.

    And then NB Power -- and I don’t know exactly how many days are in the filing schedule, but roughly NB Power will have three weeks to file rebuttal evidence.  We will have been deprived effectively of the opportunity to properly address those issues from an evidentiary perspective.

    So from a procedural fairness point of view and from a scheduling and evidentiary record point of view, the determination of scope, I suggest, it is even more important for that purpose.

  MR. HERRON:  Okay.  So I took your point, if I have captured this properly, is that it is pretty easy -- it might be easier for the Board to have clarity and simplicity about what is in scope, but if we were to prepare a larger menu about what is not in scope, that would seem to be a much -- a more difficult process,  because I don’t know if you can have an accurate or exhaustive list.

  MR. FUREY:  That is precisely what -- what I was trying to convey, Mr. Herron, was exactly that.  It would not be reasonable of any party to expect -- in the context of this hearing when -- this process when there are so many potential rate design issues.  It would not be reasonable for any party to expect the Board to say, this is not an issue in phase 1, this is not an issue in phase 1, this is not an issue in phase 1.

    What the Board did and what parties should reasonably expect is that the Board tells people what is in issue.  And by default, anything the Board has not put in issue in this phase is not in scope. 

    And I think you have hit the other point.  I don’t think I raised this in argument.  The other point is it is probably not even possible for the Board to come up with an exhaustive list of what is not in scope.

  MR. HERRON:  Is it your view that if, you know, all aspects related to CCAS were put into play in this -- in this hearing -- or in this matter, that it would -- that it could potentially, I will say, blow up the phase 1 and phase 2 and phase 3, I guess, step by step process?

  MR. FUREY:  I think it has two impacts.  I think it -- and I don’t want to go keep going back to procedural fairness, but I think it -- the first impact is that it essentially says that the parties can’t rely on what the Board has told the parties about what is in scope.  And that essentially it is still a bit of a free-for-all and that parties can raise any issue that they see fit.  Okay.  So that creates some obvious problems, as I have already talked about, from an evidentiary perspective.  But it also creates problems from a scheduling perspective. 

    In order to cure the procedural unfairness that would result from that -- that free-for-all, the Board, I would submit, would have to give NB Power -- and I don’t want to get into the second part of the argument, but would have to give NB Power additional time. 

    And so contrary to what the Public Intervener is suggesting that NB Power is trying to delay this, my submission is if the Board doesn’t stick to the scope as set out in the decision in Matter 357, what it is going to do is ultimately delay all of the processes.  The fastest way to get through this is to deal with the issues that the Board put for phase 1.  In this proceeding, I would expect that parties will make submissions and the Board will want them to make submissions about what phase 2 and 3 looks like.  And then that is a logical, planned approach to how the Board will deal with all of the various issues in rate design.  And it does, I stress, does involve at the next phase, matters of cost allocation, no question. 

    But -- so I guess I am repeating myself a little bit, but ultimately I think the positions taken by the parties, and in particular the Public Intervener, that this is an attempt at delay, I feel quite to the contrary.  I think the approach NB Power is putting forward is the most efficient one. 

  MR. HERRON:  So I guess my last question/comment, I guess, relates to this issue of delay.  So the -- although there may -- at first blush when I was listening to your argument where you provided the chronology of customer class and rate design over the better part of the last decade, the delay issue is one of concern from my perspective.  I was spared from serving on the panel of 357, which took a fair amount of time to deal with.  So I think -- there is a broad consensus, I think, by everyone is this virtual room that beginning this journey in a tangible way is vital. 

    That -- so is it your -- so it is your -- your perspective is that if we get at the matters that you are suggesting that are in scope, that the issues relating -- related to customer allocation studies and CCAS that they would have their day at phase 2?

  MR. FUREY:  Yes.  And the only exception I would say to that is that I wouldn’t necessarily commit that NB Power’s position would be that seasonable cost allocation and seasonal rate design would be in phase 2, because our understanding of the three phases is that it is only in phase 3 that we are going to get to specific rate designs and rates, and that is when -- you know, in the context -- NB Power’s position is, that is when in the context of a discussion of broader time of use rates, that it is appropriate to consider seasonal rates as a form of time of use rates, and therefore, of course you would seasonally allocate costs in that context.

  MR. HERRON:  So I did say that was my last question, so here is my -- really my last question.  The -- as you were able to delineate that this would almost -- was a decade long journey to even get to where we are right now.  Technologies are going to really shift over the next 1, 2, 3, 4 years in terms -- and I think Mr. Stoll’s document touches on these issues, whether it be issues related to distributed energy resources, EVs, load profiles that there is going to be a lot of change.  So -- and a lot of those issues that potentially relate to Mr. Stoll’s submission probably can’t wait the same length of time that it took to get where we are right now.  So what would you say to that?

  MR. FUREY:  Before I answer that question, Mr. Herron, I would like to just go back to your previous question for a moment in terms of -- essentially, the question was directed at the most efficient way of doing this.  And I think the additional comment I would like to make is that as a general matter, if we are going to continuously revisit issues that have been determined by the Board.  And you know, the reason I cited Mr. Stoll’s commentary on the Brattle report was that nobody had any real issues with the class cost allocation study coming out of the stakeholder engagement process. 

    And -- but if we are going to revisit that, does that mean that we are going to revisit all of these things at every phase, and I just see that as an incredible inefficient process.  So I will close off on that.

    So to answer your question on the impact of technology and the adoption -- rate of adoption of distributed energy resources and all of those modernizing of the grid issues, I think there are two impacts.  One, it means that there will be changes in the future to the cost allocation.  Maybe not the methodology, but the numbers are going to change as the impact of those technologies takes greater and greater effect. 

    And so this is why I say to the suggestion that somehow the decision of the Board on approval and concept of classification of customers is dependent on aggregated class cost information, escapes me entirely.  I can’t see how it could ever be relevant.  So that is point number one.

    Point number two, which I think was the real point of your question in terms of how quickly we deal with those issues.  Yeah, absolutely.  And I think we will hear more from Mr. Stoll, and perhaps other interveners, in this proceeding and perhaps expert evidence on what the Board should be doing in phase 2.  What -- because, of course -- you know, the phased approach was in recognition that there is some low hanging fruit.  There is some issues that should be dealt with early, and we are dealing with them.  And then there are more complex issues and issues that require more work, including new class cost allocation studies and harder rate design work.  That will have to be done based on certain assumptions as to what will happen with the technologies that you have identified.

    So I don’t know that it necessarily means we have to speed up the process beyond where I think we are going.  My anticipation is we will have this hearing, I hope, on the schedule already set by the Board, the Board will issue a decision in which you will order NB Power to file a further application by a specific date with specific requirements as to what is to be included in that application.  And we will continue that process, and it will be completely under the Board’s jurisdiction.

    But I do think that absolutely, the emergence of those technologies is something that has to be monitored, because there will have to be assumptions in all of these decision making processes as to the speed of adoption of those technologies.

  MR. HERRON:  All right.  Those are my questions.  Thank you, Mr. Furey, and thank you, Mr. Stewart.

  MR. STEWART:  Thank You.   Ms. Black.

  MS. BLACK:  Thank you, Mr. Chair.  Just a couple of questions for you, Mr. Furey.  The first is a bit of a high level question, and it relates to the series of IRs around seasonable cost allocation and seasonal rates. 

    And I just take note of the fact that NB Power’s application includes a request or a couple of requests specifically for direction on what issues should be included for resolution by the Board in future phases, but the mid-term and the long-term phase and some features of the proposed rate design roadmap.

    So it seems to me that, even though it is your -- you are making the argument that these issues of seasonal cost allocation or seasonal rate design are completely out of scope in this proceeding, can you, perhaps, clarify your position on -- on whether, even to some extent, these issues may be in scope at least to the extent that even NB Power is seeking the Board’s direction on what the future phases will look and what will be included, and perhaps the need of interveners to prepare some kind of evidentiary basis in order to weigh in on those arguments by NB Power?

  MR. FUREY:  So I take your question, if I have understood it properly, Ms. Black, as being, do interveners need the information in this proceeding to make proposals in future proceedings?

  MS. BLACK:  Actually, Mr. Furey, my question is more directed to a response in this proceeding to NB Power’s proposed list of topics to be included.  And if that -- if that’s -- if interveners may be concerned that’s a closed list that they may want to make argument for other issues to be added to that list as part of this proceeding to ensure that their opportunity is not foreclosed in future proceedings, and how the issue of seasonal cost allocation and seasonal rate, in particular, may be one of those issues.  How would NB Power see -- see the scope of this proceeding from that point of view?

  MR. FUREY:  Certainly, it is in issue in this proceeding, and I think it will be in every proceeding going forward as to what the next phase should encompass.  And parties -- as I have said earlier, I think it is completely within scope for parties to make argument as to when -- for example, let’s stay with seasonable cost allocation and seasonable rates, completely within scope for parties to make arguments that that should be in phase 2 as opposed to phase 3.  And as I said earlier, you know, there may be some difference of opinion from NB Power on that issue, but that is clearly in scope.  I think parties are free to make that argument today.  What I would dispute is I don’t think that when those issues are determined by the Board in the roadmap, nobody needs seasonable cost data today to make that argument.

  MS. BLACK:  Okay.  Thank you.  And then my other question is just a technical clarification for my own benefit.  When you were going through their specific list of interrogatives, and you mentioned PI IR-8(a) which was the request for that compliance model from Matter 458, I was -- I was trying to, sort of, track those models through the evidence and noted in the exhibit NBP 3.01 which is the set of preliminary responses that NB Power filed.  There is a particular response that seems to mention those models.  And perhaps we can bring it up, just for Mr. Furey’s benefit.  And it is on page 6 of the pdf response (c), there is some narrative there about all of the models that are included in this filing and it says there in the second line, the first CCS -- CCAS model, appendix N, is the model with the methodology -- if we can just go back down there, sorry, back down to paragraph (c).  Perfect.  The CCS model with the methodology and the format, as filed in 458, updated to include the changes from the Board’s decision.  And then the second one is the one with the format change.  I think those appendix numbers might be -- supposed to be Q and R, not N and O, but beyond that, that description of what, purports to be appendix N seems to be what Mr. Williams might have been looking for.  And I am just looking for clarity because I think in your oral submission, you said that that doesn’t exist?

  MR. FUREY:  So my understanding -- and maybe someone here who knows this better than I will correct me on this, but my understanding, when we describe in that narrative appendix N, that is the CCAS model with methodology and format, which is the old formatting for lack of a better way of putting it, that was filed in Matter 458.   

    So what NB Power has done is updated the formatting in the way that I described earlier, and that updated formatting has been filed for the first time in this proceeding. 

    My understanding of what the Public Intervener is seeking now is to have the current CCAS filed in this proceeding in the new format, reformatted to the old format.  That is my understanding of what was being asked for.  Maybe I have misunderstood it.  And of course, this is one of the -- one of those ones that might benefit from some discussion and, in some senses, is a little bit independent of the scope issue, but it is certainly one that might benefit from discussion. 

    If I could ask -- if I could just mute and take myself off camera for one moment, I just want to make sure that I have answered that question correctly, Ms. Black.

  MS. BLACK:  Okay.  Thank you.

  MR. FUREY:  Is that acceptable, Mr. Chair?

  MR. STEWART:  It is certainly, Mr. Furey.

    (Off the record)

  MR. FUREY:  I apologize for the delay, Mr. Chair.  So Ms. Black, I just wanted to make sure that I can properly express what has been filed.  So in Matter 458, there was a CCS model that was filed that I will call the budget model, because it is based on the forecast, the budget that NB Power’s Board of Directors has approved.  In this -- in this proceeding, NB Power has filed two --two models of the CCAS.  They filed an updated budget model, so it is using the same numbers as was used in the 458 filing updated for the format.  So that the formatting has been updated in that budget model.  And also in this proceeding, NB Power has filed, what I will call, a compliance model.  So based on the Board’s direction, the Board’s decision in 458, there have been changes, and so that has been filed as well.

    So if the concern of the Public Intervener is to be able to establish that there has been no change in the operation of the models by virtue of the updating, there are two models that can be compared for that purpose.  The budget model in 458 with the updated budget model that has been filed in this Matter.  So if that -- and I don’t know that that is the concern, but if that is the concern, there is that ability.

    What we don’t have is the compliance model in this Matter in the old format.  That is what is missing.  So that is my understanding of what the Public Intervener is seeking.

  MS. BLACK:  Okay.  Thank you.  That helps me understand your comments earlier.  I guess I was just thrown by the language in PR 4(c) that referred to that appendix N, but I think that makes it clear.  Thank you.

  MR. STEWART:  Are those all your questions, Ms. Black?

  MS. BLACK:  Yes, thank you, Mr. Chair.

  MR. STEWART:  Mr. Furey, I have a couple of questions at this stage.  And I guess the first one is, you know, there has been discussion, including some discussion with Ms. Black and certainly Mr. Herron, about, you know, NB Power’s position about, you know, changes to modeling, reformatting, how long something will take to produce, the amount -- the number of staff that are available to work on those projects.  But one of the concerns I have is there is no evidence of that before the Board.  And, you know, I hear you make those submissions.  You know, you are outside counsel, you make those assertions.  But I don’t know whether the interveners or the Board, you know, accepts those assertions or doesn’t, but there is no way for them, or the Board for that matter, to test those assertions and those positions with respect with what is involved in answering these IRs.  And maybe you can comment on that and how the Board should proceed in that light.

  MR. FUREY:  I think firstly, that this is an issue that is more directed to issue 2, you know, in terms of whether or not there should be any delay granted.  So scheduling issues that I understood the Chair to say this morning, we are not really talking about at this point.  And yes, I understand where you are coming from. 

    Certainly, I guess I would have two responses on the merits.  One, the Board clearly is not bound by the rules of evidence, and I am not saying that diminishes the need for the Board to be satisfied that what is being represented is verifiable.  But clearly, the Board is not bound by the rules of evidence.  And if this were an issue that the Board were sufficiently concerned about, then I am certainly willing to put a witness on the stand this morning or this afternoon or whenever the Board thinks is appropriate to give the Board a full understanding of the resourcing issues that NB Power faces, and parties can cross-examine that witness.  If the Board thinks -- if it is that important, that is certainly something we would do.

  MR. STEWART:  Well, Mr. Furey, it is your motion to run, and at this -- and you have run it in a certain way. 

    So I guess the next question I have is you have made a good deal of submissions about, you know, what the Board indicated that, you know, should be, you know, addressed in the phase 1 of, you know, the shopping list as it were from the decision in 357.  But the approach that NB Power has taken with this application, this concept, if I can use that expression, of, you know, approving in concept, you know, you are a straw man is how you characterized it earlier.  I mean, that is an approach of NB Power’s own design.  I mean, that wasn’t part of the orders from the Board.  And this idea that you are just putting up a straw man, and that you want to separate cost allocation at this step, that is not in fulfillment of a Board direction.  That is a decision on an approach that NB Power has taken.  Is that correct?

  MR. FUREY:  I think it is implicit though, Mr. Chair, in the issues that have been directed by the Board in the way they were directed.  It is not -- well I guess the question becomes, is it reasonable without having Board approval of the -- of the -- in particular, the class -- the classifications of the new -- the new rate classes that have been proposed.  Is it reasonable to do a complete class cost allocation study methodology for those new classes prior to approval of those classes by the Board, you know.  And so NB Power’s judgment, and you are right, it is NB Power’s judgment, is that that is not an efficient, effective, reasonable way to go forward.  That -- that in fact what is required is approval in concept and then that study.  But did the Board say that is how it should be done?  No, clearly the Board did not.

  MR. STEWART:  All right.  And it would be open to a party in this proceeding to say, for example, that it is not appropriate or possible to, you know, approve a straw man even at that level without analysis of the cost allocation issues?

  MR. FUREY:  It would be open to a party to argue that, but I would suggest there is no logical basis for that assertion.  The methodology for determining rate classification currently is based on what customers use the energy for.  And NB Power’s proposal is to move the rate classification in the direction of almost all other jurisdictions in North America which base classifications on likeness of customers, their load characteristics, their energy use, their demand, their peak demand those kinds of considerations. 

    So is it open for a party to say, yeah, I need full class cost allocation to have a position even on the straw man, it is open to argue that, but I think they would have to reasonably demonstrate that there is some connection between that detailed class cost allocation and the methodology of assigning customers to particular classes.  And in my submission, there is not.  The way you do that is by looking at load characteristics based on actual billing data.  You don’t do it by looking at a -- frankly, an aggregated class cost allocation study.  I look forward to someone telling me how looking at the dollars in revenue going into one class and the dollars of cost going into that class, how that allows anyone to make a determination as to what the class should be.  That is now how -- now if someone wants to lead evidence that says, no, that is how we do it, well I think I would look forward to cross-examining that witness.

  MR. STEWART:  Certainly, but a party may take that position, and you would cross-examination that witness in the way that you have indicated?

  MR. FUREY:  Right.  But at this stage of the proceeding in terms of what is in scope and what is not in scope, it surely is incumbent on -- you know, because we have a Board order that says this is what is in scope.  And so yes, if what you are -- I understand what you are saying that, look, is cost allocation information relevant to the matters that are in scope?  That is how I am interpreting your question, and this is the time where a party who says, yeah, it is, has to step up and say, yeah, here is how it is relevant.  And nobody has done that.  No one has said, this is why I need this information because I need it to use it in this fashion to develop a position on what the class classifications and rate classifications should look like.  And my submission is because it is not relevant for that purpose.  What is relevant for that purpose is load characteristics.

  MR. STEWART:  All right.  Thank you, Mr. Furey.  Those are the questions that I have certainly at this time. 

  MR. FUREY:  Thank you, Mr. Chair. 

  MR. STEWART:  So it is almost 11:00.  Why don’t we take a brief 10-minute break, and we will reconvene at 10 minutes after 11:00, and then we will hear the submissions obviously from the various interveners.

     (Short recess)

  MR. STEWART:  So we will now hear the submissions from the interveners who are present.  Now I think Mr. Marcolin said that he might be leaving, and I just wanted to make sure that -- Mr. Marcolin, are you there?  I think he said he had to leave at 11:00, and so he won’t be able to continue, I guess. 

    Mr. Amos, do you have any comments or submissions to make with respect to this motion?   

  MR. AMOS:  Can you hear me?

  MR. STEWART:  Yes, we can hear you.

  MR. AMOS:  I have lots to say.  I find myself biting my tongue every time you said straw man. 

    Do you recall the last time you and I met, Mr. Stewart?

  MR. STEWART:  I am sorry, Mr. Amos, I do not.

  MR. AMOS:  I recall your last words.  It was at the Wu Centre up in Fredericton.  I had just come out of the hospital, and I was running for parliament at the same time, and it was the last day of the meetings with the Brattle Group, and they are all happy.  They are asking us all for our last opinion before he come out with his report.  And I was raising such hell over straw man reports, you said -- I say with great trepidations, I think what your words was, to say straw man report, because you saw how offended I was by such a thing. 

  MR. STEWART:  All right.  So Mr. Amos, do --

  MR. AMOS:  Do you recall that?

  MR. STEWART:  No.  Mr. Amos, do you have any comments on NB Power’s motion or Mr. Furey’s submissions this morning?

  MR. AMOS:  Yes, I agree with the acting Public Intervener that this is definitely a delay.  You don’t recall the last time you and I met?

  MR. STEWART:  I am sorry, I do not.  Now could you --

  MR. AMOS:  Do you recall the first time we met?

  MR. STEWART:  Sorry, Mr. Amos, I need you to focus your comments on NB Power’s request on this motion --

  MR. AMOS:  I will see you in Federal Court, sir.

  MR. STEWART:  -- and Mr. Furey’s submissions this morning.  Do you have anything else to say about those?  Did we lose Mr. Amos?

  MR. WILLIAMS:  I think that I heard him say, I will see you in Federal Court, sir, and then I think he hung up.

  MR. STEWART:  All right. 

  MR. WILLIAMS:  I have had that happen to me with Mr. Amos.

  MR. STEWART:  All right.  So we will see -- then, Ms. Rubin, could we have your submissions, please?

  MS. RUBIN:  Thank you, Mr. Chair.  First off, we rely on the written submissions that have been filed and don’t propose to repeat them all.

    With respect to delay, I appreciate Mr. Furey’s recitation of what has taken place.  And what I would say is, you know, whether a delay has been intentional or not, there has been a great deal of time that has passed, and time will continue to pass before we can implement these changes that are proposed in multiple steps.  The timing of which remains unclear.

    The second point I would make is that to some extent, when we, as participants in this proceeding, are seeking to tell the Board what was intended by the scope is a bit presumptuous since the Board would well know what was intended when it set this proceeding.  And I don’t have the history of Mr. Furey and many of the other intervener counsel here who have been participants in the proceeding for so long, and I am unable to locate certain decisions which may be buried in transcripts.  However, what I would say is that when we are dealing with rate design it is fundamental that you cannot silo rate design from cost allocation.  Customer classification and issues of cost allocation and revenue to cost in equities, which are a topic that has been directed by the Board in this process, they are completely tied together.  They are integrated. 

    Now if the Board should determine that foundational matters of cost allocation are within scope, then the question is are the questions that have been asked relevant.  And I have included in our submissions reference to a case from the Nova Scotia Utility and Review Board that relied on a National Energy Board decision which talks about IRs, as they are referred to in Nova Scotia.  And the Board talked about the test to compel responses to IRs is one of relevancy, significance and reasonableness, and that relates to whether the information being sought may be useful to assist a party to make its case before the regulator.

    So it is not simply what was intended by NB Power, but what would be useful to any of the participants or the Board with respect to the matters at issue.  So we are back to scope. 

    Now customer reclassifications will shift costs, and we need to understand the cost impacts before we can understand the positions to take, because there are principal basis and then there are practical arguments to be made.  So there is no singular perfect rate design or cost allocation, and it is a balancing of choices.  And the fight or the objection that may be put up or mounted may well depend on cost impacts that flow from the result of any particular choice that is made.

    Now NB Power objects greatly to addressing issues of seasonality.  And for the first time, I heard Mr. Furey say that it will be in scope later, although he wouldn’t commit to whether this was phase 2 or phase 3.  Certainly nowhere in NB Power’s evidence do we find the word seasonality.  And it has certainly been in play for many years to the point that it was described as no brainer by the consultant retained by the Board to facilitate the process. 

    And Mr. Furey says that it has not been lost, but from the perspective of coming into this process, it appears that it has been lost.  The Brattle Group and the Board understood that seasonality was an easy first step.  So when we were talking about an up to date embedded cost allocation study, it would and it should reflect seasonality.  And so issues of rate design, if they are to be accurate -- and when you are moving customers around by classes, we need to know how seasonality might affect those changes. 

    Now Mr. Furey has proposed what he terms a straw man,  and askes for approval in concept.  Now my experience with rate design is that those straw mans are put up and then tested against the cost impacts for all parties to consider and then only after determining the cost impacts, do we then bring the proposed rate changes, either as agreed to or as the parties may take whatever position they choose, before the Board.  Because if we don’t know the cost impacts, it is difficult to approve a change in rate design which may ultimately be skewed when up to date cost inputs are applied to the rate design changes that are being made. 

    Now Mr. Furey says that it is not reasonable for a party to say what is not in issue and what is in issue is what was directed by the Board in its decision in 357, and by default, anything else is not.  Well NB Power did not confine itself in its application request for relief to the matters specifically stated by the Board.  And we can look at its evidence at pages 9 and 10 with its request for relief.  They cover a number of other topics, including some modifications to cost allocation. 

    So -- and as Ms. Black pointed out, one of the issues is how do we take this forward in future phases.  The questions that have been asked by JDI seek to understand the foundational basis for the changes that have been requested now and seek to incrementally move these forward to look at the possibility of introducing seasonable or monthly allocation. 

    If I could look at the JDI submissions at page 8 of 12, perhaps if we could pull that up, please?

  MR. STEWART:  Ms. Rubin, you mean your written submissions filed in this motion, is that --

  MS. RUBIN:  Yeah, yes.

  MR. STEWART:  Yes.

  MS. RUBIN:  Is that possible to have that, Ms. Mitchell?

  MR. STEWART:  I think so.

  MS. RUBIN:  Okay.  Thank you.  I was looking for pdf page 8 of 12 at the -- right.  The bottom where it says list the IRs which were asked. 

    So these were IRs that JDI asked with respect to the cost allocation study model that has been filed in evidence.  And if you look at questions e and f, it is just asking, essentially, for a yes/no answer.  You know, could NB Power allocate costs for fuel purchases exports to the month in which the cost is forecast, and if not, explain.  And does NB Power agree it would more closely reflect cost of service principles?  There is no burden to the resources of NB Power to answer those questions.  It seeks to determine the position of NB Power with respect to seasonality or rather a more granular monthly allocation.  That is e and f.  And then h and i asks the same questions.  For h asks the same questions but with respect to seasonality.  Questions g and i, request a copy of the model based on a monthly and seasonal allocation approach.

    We have -- we have heard from Mr. Furey that this would be burdensome.  We don’t have the information as to the length of time it would take to accommodate that.  If it is a question of timing, if it is helpful and there is some additional time that is required, then JDI would not object to that subject to being able to accommodate it within the schedule.  And this is a fairly generous schedule in terms of timing and production. 

    And then question j, it is directly relevant in asking for the tables of the customer class revenue to cost rations when one of the issues is to look at equity between and among customer classes and the revenue cost in equity.  So certainly considering issues of allocation of energy on a seasonal or monthly basis and what that does to the revenue cost ratio and equity is directly relevant and in scope of the matters at issue.

    I focused specifically on IR-20 because that was the IR that was raised by Mr. Furey to which he greatly objects.  I will simply rely on our submissions for the balance of this. 

    Mr. Furey says that it is clear that cost allocation should not be reopened and we shouldn’t be revisiting matters in 271.  So what I would say is that this isn’t a holus bolus review of the cost allocation studies.  But cost allocation methodologies are not baked in stone now and forever, and to the extent there are changes required or driven by changes in the environment within New Brunswick and the costs and the generation mix, then it is appropriate to consider.  It’s not a review of 271.  It is some implement -- incremental changes that may be required as a result of rate design proposed.  And either it is now or in future, but certainly it would be helpful to JDI and to its consultants. 

    And Mr. Furey said that the parties have not put forward the basis for why this is relevant.  So we have -- each of the interveners who filed submissions have described how cost of service is fundamental to rate design.  Beyond that, with two days to respond, we did not have time to muster up evidence to submit as to how that might be specifically introduced, but certainly where opinions, assumptions and choices have been made, for example, with respect to alternative 4 versus any other alternative, it was necessary from our consultant’s perspective to have the information to test the basis for that recommendation.

    So I don’t want to repeat anything that I have in my submissions, so subject to any questions, those are my comments.

  MR. STEWART:  Thank you, Ms. Rubin.  Mr. Herron, do you have any questions for Ms. Rubin?

  MR. HERRON:  Just one, I think.  Your desire to have a discussion with respect to seasonality, I think you are being very clear with that.  If NB Power was clear about when they -- what their perspective would be when it would be best to discuss that, if you had that understanding, would that be -- would that be helpful, because I believe I heard Mr. Furey say that that may not happen in phase 2 but it would happen in phase 3.  Is that length of time too far down the road for you or what are thoughts on that?

  MS. RUBIN:  My difficulty with that, Mr. Herron, is that, to some extent, I think we are putting the cart before the horse in seeking approval in concept of rate design changes without knowing what the cost implications are

    of seasonality, so to approve something in principle when we may end up backtracking because the cost implications lead us to different policy choices, I don't think it gives a full and fair picture.  So you know, I would have NB Power’s answer on it, but it doesn’t -- It doesn’t address my concerns.

  MR. HERRON:  I guess my second question actually emanates from a point that you made that customer allocations aren't set in stone.  They are evolving.  That the process that  we are taking is a little bit -- is potentially more evolutionary than revolutionary, but the issue of backtracking, and perhaps readjusting or readdressing, I think that's apt to happen regardless, given new technologies that will eventually be more front and centre on the grid that the load profile of a certain class today may change from a season to season because of -- because of changes.  What say you to that?

  MS. RUBIN:  That’s absolutely right.  I don't see this is as reviewing.  I see this as evolutionary in a similar way that NB Power has made what they have described as incremental changes to the CCAS, further changes may arise as we go forward, so it it's not a review, it's an evolution.  It's a process.

  MR. HERRON:  Okay, those are my questions.  Thank you very much.

  MR. STEWART:  Thank you, Mr Herron.  Ms. Black?

  MS. BLACK:  Thank you, Mr. Chair.  Just one question for you, Ms. Rubin. and it relates directly to your written submission.  Perhaps we can bring that up again.  And I'm looking at the paragraphs 52 through 55 and they relate to your IR-29(g).  And that's on page I think 11, yes.  Perhaps we can just scroll so we can see 52 through 55 altogether.  Perfect.  So Ms. Rubin, I think I understand your arguments this morning about the question -- your IRs relating to CCAS models themselves. But I'm wondering if you could explain a little bit further than what you have there in your written submissions about what value the detailed description of kind of the history of methodological change with respect to the LIREPP program, how is that -- those kinds of -- those kinds of IRs, how do they assist you and your consultants in establishing that foundational basis for the changes that NB Power is proposing in this proceeding?  Can you just take me through that a little bit further?

  MS. RUBIN:  Ms. Black, this may -- this is a question that in part originated from me with my coming to New Brunswick and understanding that there have been changes in the CCAS methodology over time as indicated in the filing, so I wanted to understand what changes that have occurred specifically with respect to this customer class and if there was some rationale for it.  So what we are looking -- for me what I'm looking to establish is what was driving the change, and if there's a rationale for future changes, particularly given that rate design continues to evolve and there are further steps.  So whether it is -- I appreciate that LIREPP itself is not proposed to be modified in this proceeding, but there may be aspects that would be helpful in future too.

  MS. BLACK:  Okay, so I think what I'm hearing is that it's from part of a larger effort to fully understand the cost allocation study as it exists?

  MS. RUBIN:  Correct.  And how it has changed and what the drivers are and if there are potential for future changes.

  MS. BLACK:  Okay, thank you, that's my only question.

  MR. STEWART:  Thank you.  I don't have any particular questions for Ms. Rubin.  Thank you very much for your submissions.

  MS. RUBIN:  Thank you.

  MR. STEWART:  Ms. Mitchell has advised me that Ms. Belliveau from the Agricultural Alliance has joined the hearing and I just thought that perhaps Ms. Belliveau, just wondering whether you have any particular submissions to make on this on NB Power’s motion and the matters before the board this afternoon or this morning, I guess?

  MS. BELLIVEAU:  Thank you.  No, I am just here to listen if that's okay.

  MR. STEWART:  That's perfectly okay.  I just wanted to give you the opportunity to speak if you -- if you wish to do so.

    All right.  Mr Hoyt, do you have submissions on behalf of Twin Rivers? 

  MR. HOYT:  Thank you, Mr. Chair.  Twin Rivers is new to this proceeding so has no comments to make at this time.

  MR. STEWART:  Thank you.  That brings us to Mr. Stoll.

  MR. STOLL:  Thank you, Mr. Chairman.  I will be quite brief and based on your comments that you have read -- the panel has read the submissions.

    I just wanted to address a couple of things that I heard this morning.  One was Mr. Furey’s quotation of comments we had or submissions we -- UM had several years ago regarding the -- and I'm going to use the word -- the cost methodology was not flawed and I.  And I think maybe he has gone a little bit further than I would with what the nature of that comment was.  And I think the comment was intended to address that the existing cost allocation methodology wasn't driving any customer inequities.  It wasn't something that we saw – anybody saw needed to be fixed in and of itself.  That doesn't necessarily mean that it doesn't inform other elements of what, like will transpire in this proceeding.  So I don't know that I would go as far as Mr. Furey in fact probably wouldn’t in the usefulness of that statement. The one other -- the one other point, I think, in the way we were looking at things is when we were referencing the transformational aspect of the industry is, and the forward-looking nature is, and we don't have this information.  Probably NB Power certainly doesn't have it on a granular level.  But directionally will some of the problems that exist in the current regime either be exacerbated or be alleviated given some of the anticipated changes.  I think that’s one of the concerns we have.  And to the extent that we feel that a spending pattern or a class load profile will change significantly because of EVs or because of a switch from fossil fuels to batteries and other things, if we directionally understand that, then I think that would be helpful in avoiding some of the -- the retracing that Mr. -- I think Mr. Herron raised this morning and I think he's probably right, we're going to end up with some retracing at any, no matter what we do.  But I think UM has been consistent that we want to try and avoid that.

    I think the other kind of more practical concern we have – and hopefully this deals with one of Mr. Furey's concern is -- is we see that part of the NB Power proposal is essentially a differential rate to correct the GS class being outside the range of reasonableness. And my understanding is that that comes first.  And then we look at the classes that are below 1.0 in the revenue to cost ratios and some or all of those classes will basically make up the difference to allow those GS classes to come down.  However, some of the conceptual approvals would apparently potentially move some of the people within those classes that are paying into what would the future GS type classes would look like.  And I think the question would be how -- how is the payment by those customers related to the remaining customers? Or should it be differentiated?  So to me it's a question of sequencing of events and maintaining customer fairness to the extent that it can be maintained.  And I think some of the results from some cost allocation information would be beneficial in that regard. I think  my friends on the other intervener side were maybe a little bit ahead of us.  We were taking more of a staged approach to our interrogatories based on what we were seeing.  So I think that's why we've made our submissions and addressed the issues the way we have both in the IRs and at this stage.  So those are my comments, Mr. Stewart, subject to any questions.

  MR. STEWART:  Thank you, Mr. Stoll.  Mr. Herron?

  MR. HERRON:  No questions.

  MR. STEWART:  Ms. Black?

  MS. BLACK:  No questions.  Thank you.

  MR. STEWART:  All right.  It would seem to me that it's about 5 to 12:00, that it might be appropriate to take  a bit of a lunch break here, and then we will -- I think that we have at least two parties to hear from.  And then, Mr. Furey, your response.  I would suggest that we keep it a relatively short break.  It's 5 to 12:00 now. If we came back at 1:00 o'clock, is that acceptable to everyone?  And hearing no one say -- no one say no.  So let's do that.  We will adjourn to 1:00 o'clock.  And when we come back, we will begin with Ms. Herrington.

    (Recess – 12:00 p.m. – 1:00 p.m.)

  MR. STEWART:  Good afternoon, everyone.  Ms. Herrington.

  MS. HERRINGTON:  Thank you, Mr. Chair.  I will be brief, like the other parties were before we.  We rely on our written submission that was previously filed.  I think our arguments are essentially contained in that submission.  I would offer just a few comments based on the issues that have arisen this morning.

    First, Board Staff disagree with the submission of NB Power that the IRs that are being presented by Board Staff at this stage would create unfairness in the process to NB Power or to other parties who, you know, I guess may have chosen to intervene if they knew at the time that the scope of the issues that would be addressed in this phase 1 application would have been broader.  And that is primarily because, for reasons set out in our submission, we do feel that the IRs are squarely within the scope of the current application. 

    Briefly, one, because they relate to the issue of rate classes and the assessment of the proposed rate classes that are being advanced by NB Power in their application.  And also because the information that Board Staff are seeking through their IRs goes to, in our view, helping -- through our consultants, helping the Board understand potentially future issues that need to be addressed or providing further direction for phase 2 or 3 of the rate design process.  And those directions from the Board are also an issue that have been requested by NB Power as part of the relief sought in their application.

    So we don’t -- we don’t -- we submit to the Board that this doesn’t create any unfairness.  That we are really trying to get at information that is squarely within the current application. 

    And I think to that point it may be helpful just to indicate -- because I know that Mr. Furey had, sort of, maybe expressed a summary of our submission, and I think he was right, that we -- it is certainly not our intention as Board Staff to show up in final argument on this application with a fresh new proposal on a new cost allocation methodology.  That is not, sort of, what we are trying to do here.  We are really limited to just trying to understand the proposed rate classes that are -- you know, that are being advanced by NB Power.

    And I really do -- I disagree with NB Power on the idea that you can -- that you can separate entirely issues of cost allocation from the proposed rate class, even the proposal just in concept, as Mr. Furey has submitted this morning.  And I think perhaps Ms. Rubin touched on this as well, but really in Board Staff’s view, the issue of cost allocation is fundamental to rate design, and I am -- you know, perhaps there is something that I am missing, but I struggle with the idea of how the Board could properly assess the proposed rate classes without conducting some sort of analysis or having some sort of understanding of the costs that might be associated with different customer classes.  And our IRs are really designed to get at the information that is currently available to NB Power that is underlying its current cost allocation methodology, not -- you know, we are not insisting on a new study at this stage.  We are really just trying to understand and our consultants are trying to understand what data is there, what the data says, and the quality of that data and the quality of those assumptions. 

    I have some concern with the suggestion by NB Power that we could really just approve a set of rate classes in concept as a straw man, and then at later stages, we could go back and revise those classes.  Certainly, I don’t know that we are going to get it perfect on the first try, but all this time has passed, and we are finally here at phase 1, and I think it is the position of Board Staff that now that we are here, and now that we are looking at a new proposed class structure that we should and the Board should do its best to get that structure as right as it can as early as it can rather than moving too quickly and having to go back to the drawing board at a later stage.

    So I think, Mr. Chair, those are essentially my submissions, subject to any questions that arise from that from the Board.

  MR. STEWART:  Thank you, Ms. Herrington.  Mr. Herron?

  MR. HERRON:  I have no questions.

  MR. STEWART:  Ms. Black?

  MS. BLACK:  No questions.  Thank you, Mr. Chair.

  MR. STEWART:  Thank you.  With that, I have no questions, Mr. Herrington.  Thank you.

  MS. HERRINGTON:  Thank you.

  MR. STEWART:  So I believe that leaves Mr. Williams.

  MR. WILLIAMS:  Thanks, Mr. Chairman.  I am going to be brief as well.  People have already advanced most of the things that I would be saying, so I am in a lucky position. 

    I agree with what everybody has commented, all the interveners have commented already.  I am also relying on the written submission that we filed.

    In this present motion, NB Power’s motion, the Board simply has to determine whether the IRs that are in dispute are relevant.  And as we know, IRs are essentially discovery.  And the bar -- I would suggest the bar for relevance in an IR is not very high.  Just has to show some connection to a proceeding. 

    If it is an issue of resources, the way to heal that or the way to cure that is to allow NB Power to have more time.  We don’t -- certainly don’t object to that.  It should be done right at the outset rather than making people guess and be taken by surprise. 

    And essentially, I view NB Power’s -- much of NB Power’s submission is that they don’t think it is relevant, so therefore, it is not relevant.  That is kind of the way that I understood Mr. Furey’s argument.  I know he will disagree with me on that.

    The -- our submission, quite simply, is that the IRs that are in dispute are relevant and should be -- and NB Power should be ordered to answer the IRs that are outstanding.  And, you know, once again, if it requires a little more time, change to the schedule, then so be it.  Those are our submissions.  Thank you very much.

  MR. STEWART:  Thank you, Mr. Williams.  Mr. Herron, do you have any questions for Mr. Williams?

  MR. HERRON:  No questions for Mr. Williams.

  MR. STEWART:  Ms. Black?

  MS. BLACK:  No questions.  Thank you.

  MR. STEWART:  And I have no questions, Mr. Williams, specifically. 

    So Mr. Furey, are you ready to make your final submissions?

  MR. FUREY:  Yes.  Thank you, Mr. Chair.  I don’t have a great number of comments in response to the submissions of other counsel today. 

    Perhaps it is easiest to start in reverse order.  As Mr. Williams predicted, I don’t agree with him.  The motion is about more than simply the relevance of the IRs.  That is an important issue.  But first and foremost, the motion is about what is in scope in this proceeding.  And that is the first direction that NB Power is seeking from the Board.  What is relevant in terms of interrogatories then flows out of that.  Mr. Williams know, as well as anybody, that relevance flows in the litigation context from the pleadings and then the regulatory context, it flows from the matters that are in issue in the regulatory proceeding.  So I think that issue is crucial for the Board to provide directions on, even -- even before addressing the issue of interrogatories.

    With respect to the submissions of Ms. Herrington, she correctly pointed out that Board Staff’s interrogatories do not -- like JDI and the PI, they are not asking for a class cost allocation study with respect to the proposed classes.  The IRs of Board Staff are much more about a greater degree of detail about the current class cost allocation study.  But that raised -- and Ms. Herrington simply says, that’s -- you know, we need that.  You can’t divorce cost allocation from rate design, but my comment from earlier this morning still stands.  No one has suggested how it is that a greater level of detail in the current class cost allocation study, which deals with classes that we are proposing to move away from, how is that relevant in assessing the proposal for the new class classification.  Nobody has even really touched on how you could use that to assess that proposal.  Everyone says they need it, but nobody says how it would be used. 

    And while I sympathize with Ms. Rubin’s comments that there is limited time and evidence, but nobody has even articulated a logical link between the two. 

    With respect to the comments of Ms. Rubin, Ms. Rubin, I am going to get this not quite correct, but essentially she said, fundamentally, you cannot silo rate design and cost allocation. 

    Now Ms. Mitchell doesn’t need to bring it up, but I would refer the Board to its decision in Matter 271 dated May 13^th2016.  There are some paragraphs around it that the Board should probably read for context, but at paragraph 90, the Board summarizes JDI’s position on allocation -- seasonal allocation at that point.  And paragraph 90 starts by saying, in contrast, JDI emphasized the need to segregate allocation issues from rate design issues.  So the position that Ms. Rubin is taking today is quite at odds with the position that JDI has articulated in the past.

    And I just -- I will close by saying that I want the Board to understand very clearly that NB Power is not saying that cost allocation is cast in stone for all time.  That is not NB Power’s submission.  NB Power’s submission is that the Board has made a decision already on what the scope of this proceeding is, and it doesn’t include cost allocation. 

    And secondarily, the Board can assess, of course, is there relevance to cost allocation questions to matters that are in scope.  That is a relevant consideration for the Board, but our submission is nobody has made that logical connection between the two other than to generally say that you can’t do one without the other.  Well that is simply not true.  What Boards do regularly is arrive at a cost allocation model, and then do rate design off that.  That’s -- there may be a little bit of time in between the Board’s last approval, a full review, of the class cost allocation study, but that is what Boards do all the time.

    So -- and finally, I would say that there is protection built in to the process as NB Power sees it, that there will be opportunity for -- for the whatever classes the Board approved in concept for those to be subject to a complete class cost allocation study.  It is just not at this phase of the proceedings. 

    So again, subject to any additional questions the Board may have, those are our response, submissions, Mr. Chair.

  MR. STEWART:  Thank you, Mr. Furey.  Mr. Herron, any final questions for Mr. Furey?

  MR. HERRON:  No further questions.

  MR. STEWART:  Ms. Black?

  MS. BLACK:  Nothing further.  Thank you.

  MR. STEWART:  Thank you.  And I have nothing further.  Thank you very much, counsel, for your most able -- and parties, most able submission this morning.  I think what we are going to do at this stage is -- it wasn’t entirely clear to us exactly when we would be finishing this afternoon or how long people would take, so we are just going to take a brief recess and try to make a determination of exactly where we go from there. 

    So it is 1:17.  Why don’t we adjourn till just 1:30, and we will come back and, you know, advise the parties as to, you know, where we go from here. 

  MR. FUREY:  Thank you, Mr. Chair.

  MR. STEWART:  You are most welcome.  Thank you.

    (Recess)

  MR. STEWART:  Well -- and if I don’t say what I said before, say it somehow differently, I am sure counsel won’t hold that against me. 

    During the brief recess, the panel got together, we had a brief discussion about the timing of coming to a decision to sort of the first piece of this -- you know, of the scope and obligation with respect to the interrogatories. 

    We are going to need just a little bit of time to think that through.  You know, the decision has a pretty -- potential for, you know, consequences for this Matter going forward and certainly for all of the parties. 

    So we are going to issue an oral decision on Monday at 11:00.  And I see people collectively reaching for their calendars.  So if you could just -- we are just going to do a little poll whether that time is acceptable to counsel or to the parties. 

    What we were hoping is -- we, again, do recognize that time is of the essence.  So the plan, subject to people’s availability, would be that we would issue an oral decision on Monday at 11:00, 11:00 in the morning, obviously.  And then I guess we would move then, if at all necessary, to the phase 2, if there is a phase 2. And what we would suggest -- and again, forgive me because I really do not know whether there will be a phase 2 or not at this stage, but there is at least a possibility that there might be, that counsel would then after the decision, if there is the need for some discussion about timing or whether there is some IRs that could be decided or information needed to be exchanged, that counsel have a discussion, an ADR session of some type, to try to work all those details out to the extent there may be the need to do so.  And then including how that might affect the schedule.  I heard interveners saying, you know, that they were flexible on a time, but obviously you need to understand what exactly is in play in order to have that discussion.  And then the Board would be available, you know, much in the way that we do at a pre-hearing conference.  If there is the need for a change to the schedule and some adjustments, if counsel can, you know, have that discussion, and then bring it forward to the Board and to the extent that the parties can’t agree then the Board will rule. 

    So that is our hope, and I can certainly canvass everybody, but is there anybody who, you know, has a scheduling issue with Monday that might get in the way of my proposal? 

    I don’t see anybody -- so lightening is indeed going to strike that everyone is all available on the day that we hoped.  So that being the case, then we will stand adjourned until Monday morning at 11:00 o’clock.  Ms. Mitchell or Ms. Curran will send around a new link, and then the Board will issue an oral decision on this first piece.  And then hopefully we will have a discussion, if necessary, on part 2. 

    Ms. Herrington, is there anything further we need to do before we adjourn?

  MS. HERRINGTON:  I don’t think so, Mr. Chair.

  MR. STEWART:  Thank you.  All right.  So with that, we will be adjourned till Monday morning at 11:00 a.m.

  MR. WILLIAMS:  Thank you.

    (Adjourned)

                 Certified to be a true transcript

                 of the proceedings of this hearing

                 as recorded by me, to the best of my

                 ability.

                             Reporter