From: Abigail J. Herrington<Aherrington@lawsoncreamer.com>
Date: Mon, Jun 24, 2024 at 9:01 PM
Subject: Automatic reply: Court of Appeal File No. 68-23-CA - Judicial Review of Board Decision in Matter 541
To: David Amos <david.raymond.amos333@gmail.com>
Large price hikes requested by N.B. Power to get long-delayed review
Utility wants approval to raise rates an average of 19.4 per cent, spread over 2 years
A long-delayed hearing into two large rate increases sought by N.B. Power is scheduled to begin in Fredericton today, although for months the utility has been charging customers some of the higher prices that will be under review.
The New Brunswick Energy and Utilities Board is expected to hear evidence sporadically over 16 days starting this week and ending in late August to determine whether N.B. Power should be allowed to raise its electricity rates by nearly 20 per cent over two years.
The utility says it needs the money to slow growth in its $5.4 billion debt load as it begins spending billions more on major infrastructure projects, including a refurbishment of the prematurely aging Mactaquac hydro electric dam outside Fredericton.
Highlighting the gravity of the request, N.B. Power president Lori Clark will appear at the hearing for a second straight year to personally give evidence about the need for higher rates, something previous chief executives at the utility have rarely done.
"The cost of delivering electricity has risen significantly," Clark says in an opening statement that has already been filed with the EUB and is expected to be delivered today.
N.B. Power CEO Lori Clark, shown here at an appearance at the legislature, intends to personally appear at the utility's rate hearing to testify about the need for higher prices. (Jacques Poitras/CBC)
"We need to raise rates to allow us, as a cost-of-service utility, to cover our costs and that is reflected in our application. We understand that nobody likes to see rates going up, and we know this is a difficult time for our customers as they are already facing cost pressures on their everyday needs from gas to groceries."
Because of delays in scheduling the rate hearing, mostly caused by the New Brunswick government, N.B. Power was given permission by the EUB to raise its base rates for this year on April 1 by an average of 9.25 per cent, including 9.8 per cent on residential and large industrial customers.
The hearing will investigate whether that increase was justified. It will also determine whether a second average increase of 9.25 per cent, including another 9.8 per cent increase on residential and large industrial customers scheduled for April 2025, is warranted.
By the time the hearing concludes in late August, N.B. Power will have collected an estimated $52 million in additional revenue from customers from the higher rates awarded in April.
The utility will be required to refund a portion of that if the EUB eventually decides the full increase is too high.
A decision by Premier Blaine Higgs not to fill vacancies on the Energy and Utilities Board for several months left it unable to hold hearings on N.B. Power's rate increase in May. Earlier, a surprise government decision to alter N.B. Power's debt targets scuttled a February hearing. (Radio-Canada)
"The Board directs NB Power to make billing adjustments for customers in the event that final rates approved by the Board are different than the rates approved in the interim Order," the EUB wrote in its decision to allow increased rates to take effect in April before the hearing into whether they are reasonable.
Last year following a hearing, the EUB approved only two-thirds of an 8.9 per cent rate increase requested by the utility.
N.B. Power's application is the first seeking approval for rates that cover more than one year.
New rules allow that option.
The utility has filed more than 400 exhibits in support of its application and answered several hundred written questions submitted in advance of the hearing by other interested parties.
Those include the industrial forest company J.D. Irving Ltd., the province's three municipal utilities, the community group Human Development Council, public intervener Alain Chiasson and the EUB itself.
N.B. Power is planning to spend $70 million on the Mactaquac Dam refurbishment project this year, $295 million next year and billions more in future years. The utility says higher rates will help keep its debt from ballooning because of it. (Shane Fowler/CBC)
Originally meant to be held in February the hearing has been unexpectedly delayed twice.
Last fall, just days before N.B. Power was supposed to file its application for new rates, the New Brunswick government changed its mind on debt targets the utility should meet.
That caused a 72-day delay in the application being submitted as the utility calculated the impact of that change on its budgets.
That forced the hearing to move from February to May, but it had to be cancelled again after a car accident involving the EUB's acting chair, Stephanie Wilson.
Legislation requires a three-person panel to conduct a hearing, and at the time the EUB was down to only three members following delays by the province in filling board vacancies. Wilson's absences made it impossible to proceed.
"Speaking to reporters following question period Friday New Brunswick Premier Blaine Higgs acknowledged his government has been delaying appointing members to EUB on purpose"
Why is it I am not surprised that Higgy appointed a former Irving coworker to the board in less than two weeks?
But the fact that it’s now in excess of $5 Billion is close to criminal, but that’s another story.
The debt will not magically disappear, and we NB’ers will be paying the piper in the way of considerably higher rates.
It would be a much less bitter pill to swallow if:
- legislation is in place to prevent any provincial government involvement in the NB Power business operation
- current NB Power senior management is totally replaced by knowledgeable, competent, business driven individuals focused on running a profitable operation that treats NB ratepayers the way they should be treated (as the customer!!)
and has a specific mandate with respect to debt targets; and NO political interference to get there
- no “special treatment” on rates to any businesses or other organizations
It might be a bitter pill to swallow (more so for some) but the time has come to stop putting this “disaster” on the back burner because of politics and poor management.
If we don’t make changes, the same story won’t look much different in 5-10 years from now, except that rates will be a LOT higher (guaranteed!),
Reply to Dan Flanagan
From: Glenn Zacher<GZacher@stikeman.com>
Date: Mon, Jun 24, 2024 at 8:39 PM
Subject: Automatic reply: Court of Appeal File No. 68-23-CA - Judicial Review of Board Decision in Matter 541
To: David Amos <david.raymond.amos333@gmail.com>
I am away at an out of town hearing until Friday, June 28, 2024 and may be delayed in responding. If your matter is urgent, please contact my assistant Sofia at scasinha@stikeman.com or 416 869 6703. Thank you
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From: David Amos<david.raymond.amos333@gmail.com>
Date: Mon, Jun 24, 2024 at 8:59 PM
Subject: Fwd: Court of Appeal File No. 68-23-CA - Judicial Review of Board Decision in Matter 541
To: <jdoughart@gmail.com>, Mitchell, Kathleen <Kathleen.Mitchell@nbeub.ca>, Aherrington@lawsoncreamer.com <Aherrington@lawsoncreamer.com>, Melissa Curran <Melissa.Curran@nbeub.ca>, Young, Dave <Dave.Young@nbeub.ca>, Dickie, Michael <Michael.Dickie@nbeub.ca>, Veronique Otis <Veronique.Otis@nbeub.ca>, Colwell, Susan <Susan.Colwell@nbeub.ca>, Chiasson, Alain (OAG/CPG) <Alain.Chiasson2@gnb.ca>, Hoyt, Len <len.hoyt@mcinnescooper.com>, rburgoyne@coxandpalmer.com <rburgoyne@coxandpalmer.com>, louis-philippe.gauthier@cfib.ca <louis-philippe.gauthier@cfib.ca>, frederic.gionet@cfib.ca <frederic.gionet@cfib.ca>, Sollows, David (ERD/DER) <david.sollows@gnb.ca>, Brandy Gellner <Brandy.Gellner@libertyutilities.com>, Volpé, Gilles <Gilles.volpe@libertyutilities.com>, Lavigne, David <dave.lavigne@libertyutilities.com>, Gordon, Laura <LGordon@nbpower.com>, Waycott, Stephen <SWaycott@nbpower.com>
Cc: Clark, Lori <lclark@nbpower.com>
From: David Amos<david.raymond.amos333@gmail.
Date: Mon, Jun 24, 2024 at 8:29 PM
Subject: Fwd: Court of Appeal File No. 68-23-CA - Judicial Review of Board Decision in Matter 541
To: Susan.Holt <Susan.Holt@gnb.ca>, robert.mckee <robert.mckee@gnb.ca>, hugh.flemming <hugh.flemming@gnb.ca>, <Steve.Outhouse@gnb.ca>, blaine.higgs <blaine.higgs@gnb.ca>, Ross.Wetmore <Ross.Wetmore@gnb.ca>, rob.moore <rob.moore@parl.gc.ca>, John.Williamson <John.Williamson@parl.gc.ca>, jake.stewart <jake.stewart@parl.gc.ca>, andrea.anderson-mason <andrea.anderson-mason@gnb.ca>
Cc: Robert. Jones <Robert.Jones@cbc.ca>, John Furey <JohnFurey@fureylegal.com>, Glenn Zacher (gzacher@stikeman.com) <gzacher@stikeman.com>
N.B. Power executives deny exaggerating nuclear troubles to justify large rate hike
Utility faces pointed questions from about whether its expenses are inflated
N.B. Power executives faced pointed questions early at a New Brunswick Energy and Utilities Board hearing that is reviewing plans to raise electricity rates 20 per cent over the next two years, nearly half of which is already being collected from customers.
N.B. Power president Lori Clark and chief financial officer Darren Murphy both denied a suggestion from the forestry company J.D. Irving Ltd., barely an hour into the 16-day hearing, that the utility is exaggerating how poor performance at the Point Lepreau nuclear generating station is likely to be this year, and next year, to justify raising rates more than necessary.
"The performance metrics that N.B. Power is forecasting for Point Lepreau are not in fact improvements. It's a forecast of worse performance," said Glenn Zacher, a Toronto-based energy lawyer representing JDI at the hearing.
Zacher noted that N.B. Power figures show Lepreau suffered breakdowns averaging just over 19 days per year over a five-year period, ending in 2022.
Point Lepreau has operated below expectations since emerging from a 4½-year refurbishment in 2012. Estimates by N.B. Power that performance at the plant will worsen this year and next are being challenged at its rate hearing. (Shane Fowler/CBC)
That was third worst among 38 peer reactors, and Zacher wanted to know why N.B. Power is now budgeting for 29 days of breakdowns at Lepreau, per year, over the next few years.
That "no doubt puts the station dead last" among all of its peers, said Zacher. He suggested that, combined with additional downtime being set aside for planned maintenance outages, inflates the plant's likely costs and exaggerates the utility's expenses by more than $20 million, both this year and next.
With more optimistic Lepreau budgeting, he suggested that rate increases as high as 9.8 per cent per year over the next two years facing some customers might have been between one and two percentage points lower.
"You're taking a straight historical average of admittedly bad performance and using that to forecast future performance," said Zacher.
Toronto lawyer Glenn Zacher has been hired by J.D. Irving Ltd. to represent it at N.B. Power's rate hearing. He asked a series of pointed questions about whether N.B. Power has been inflating expected costs related to the Point Lepreau nuclear generating station this year and next year. (Stikeman Elliott LLP)
Murphy said the higher estimate for lost production at Lepreau is no budgeting gimmick but an attempt to be more realistic about the plant's near-term prospects, given its performance to date.
"Although these are increases in forecasted costs, they are actually representative of historical actual costs," said Murphy.
"That's what we've attempted to do in this application — better match up what our experience has been in the last number of years with expected performance over the next few years."
Clark told Zacher that non-nuclear equipment at Lepreau, some of it more than 40 years old, was not upgraded at the time the reactor was refurbished and has been causing most of the problems.
Energy and Utilities Board member Christopher Stewart is presiding over the N.B. Power rate hearing. It is expected to last 16 days spread out over the next two months. (Pat Richard/CBC)
She said there are plans underway to improve Lepreau's performance in relation to its peers but that will take time and money before it shows itself.
"What we're dealing with now is aging equipment in the station," said Clark.
"Significant investment is required in Lepreau."
N.B. Power has applied to raise its rates an average of 9.25 per cent this year and next year, including a pair of 9.8 per cent increases on residential and large industrial customers.
J.D. Irving Ltd. is N.B. Power's largest private-sector customer. It is fighting a request by the utility to raise rates an average of 9.25 per cent this year and next year, including 9.8 per cent on residential and large industrial customers. (Robert Jones/CBC)
N.B. Power was given permission by the utilities board to begin charging the first increase on April 1 but will have to rebate a portion of what it has collected, if the amount is found to be too high.
Hearings are expected to take 16 sitting days but are spread over the next two months.
ABOUT THE AUTHOR
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.
ALL NB and Canadian sawmills benefited from the high prices.
From: David Amos<david.raymond.amos333@gmail.
Date: Fri, Jul 7, 2023 at 11:34 AM
Subject: Fwd: Court of Appeal File No. 68-23-CA - Judicial Review of Board Decision in Matter 541
To: Ross.Wetmore <Ross.Wetmore@gnb.ca>, rob.moore <rob.moore@parl.gc.ca>, John.Williamson <John.Williamson@parl.gc.ca>, jake.stewart <jake.stewart@parl.gc.ca>, andrea.anderson-mason <andrea.anderson-mason@gnb.ca>
Cc: Robert. Jones <Robert.Jones@cbc.ca>
---------- Forwarded message ----------
From: John Furey <JohnFurey@fureylegal.com>
Date: Wed, 5 Jul 2023 16:03:36 +0000
Subject: Court of Appeal File No. 68-23-CA - Judicial Review of Board
Decision in Matter 541
To: "Mitchell, Kathleen"<Kathleen.Mitchell@nbeub.ca>,
"Aherrington@lawsoncreamer.com
Melissa Curran <Melissa.Curran@nbeub.ca>, "Young, Dave"
<Dave.Young@nbeub.ca>, "Michael.Dickie@nbeub.ca"
<Michael.Dickie@nbeub.ca>, Veronique Otis <Veronique.Otis@nbeub.ca>,
"Colwell, Susan"<Susan.Colwell@nbeub.ca>, "Chiasson, Alain (OAG/CPG)"
<Alain.Chiasson2@gnb.ca>, "Hoyt, Len"<len.hoyt@mcinnescooper.com>,
"Glenn Zacher (gzacher@stikeman.com)"<GZacher@stikeman.com>,
"rburgoyne@coxandpalmer.com"<rburgoyne@coxandpalmer.com>,
"louis-philippe.gauthier@cfib.
"frederic.gionet@cfib.ca"<frederic.gionet@cfib.ca>,
"David.Raymond.Amos333@gmail.
"daly@nbnet.nb.ca"<daly@nbnet.nb.ca>, "david.sollows@gnb.ca"
<david.sollows@gnb.ca>, "Brandy.Gellner@
<Brandy.Gellner@
"Gilles.volpe@
<Gilles.volpe@
"dave.lavigne@
<dave.lavigne@
Cc: "Waycott, Stephen"<SWaycott@nbpower.com>, "Gordon, Laura"
<LGordon@nbpower.com>
Dear Ms. Mitchell, Counsel and Registered Parties,
Please find attached the following documentation:
1. Court Stamped copy of a Notice of Application dated July 4, 2023
(issued by the Registrar of the Court of Appeal on July 5, 2023);
2. Court Stamped copy of the Affidavit of Darren Murphy dated July 4, 2023;
3. Copy of correspondence dated July 5, 2023 from the Deputy
Registrar of the Court of Appeal confirming the hearing date of
October 19, 2023 and the dates for filing of further documentation;
and
4. An Acknowledgement of Receipt (in both Word and pdf format).
I am providing this documentation to the Board, Board staff, counsel
for those parties who had retained counsel, and those parties who have
not previously retained counsel. I recognise that counsel for J.D.
Irving Ltd. And Utilities Municipal have changed since the hearing of
this matter, and will reach out to those counsel directly.
May I ask that each registered party execute and return to me the
Acknowledgement of Receipt that has been enclosed. The form has been
adapted to permit execution by counsel, an authorized representative,
or the party themselves where they are individuals who have intervened
without counsel.
NB Power has not automatically added Registered Interveners in Matter
541 as parties to this Application. The practice in these matters is
not to do so, and to require such interested persons to apply to the
Court of Appeal for status as an intervener in this proceeding. NB
Power will not object to any such motion for status which is brought
to the Court.
If you have any questions, please do not hesitate to reach out to me.
Regards,
John
John G. Furey
Barrister & Solicitor
John G. Furey Professional Corporation
265 Berkley Drive
New Maryland, NB
E3C 1B9
Email: JohnFurey@fureylegal.com<
Phone: 506-444-1328
Fax: 506-300-2076
"NB Power has forecast a variety of costs that are not supported as being just and reasonable."
Madsen is an accountant and former Alberta utility executive who now heads Emrydia Consulting Corporation.
He was hired by New Brunswick public intervener Alain Chiasson to review NB Power's rate application.