First Wind Denied Motion to File Exceptions by Maine PUC

STATE OF MAINE

PUBLIC UTILITIES COMMISSION                                   Docket No. 2011-170

                                                                                                February 27, 2012

BANGOR HYDRO-ELECTRIC COMPANY                    ORDER

and MAINE PUBLIC SERVICE COMPANY

Request for Exemptions and for

Reorganization Approvals

I           SUMMARY

            Through this Order, we deny First Wind Holdings LLC’s (First Wind) appeal of the Examiner’s January 24, 2012 Order denying First Wind’s motion for leave to file exceptions.  We also deny in part and grant in part the Intervenors’ motion to strike the Petitioners’ revised exceptions.

II.         BACKGROUND

            A.        First Wind Exceptions

                        On January 23, 2012, First Wind filed a motion for leave to file exceptions.  On January 24, 2012, the Hearing Examiner issued a procedural order denying the motion on the grounds that First Wind had ample opportunity to intervene in this matter and participate as a party.

On January 30, 2012, First Wind filed an appeal of the Examiner’s order, stating that, because it is not a party to the proceeding, it appropriately sought leave to file exceptions pursuant to Chapter 110, section 760-A.  First Wind argued that its filing was not the kind of external lobbying that section 760-A was intended to prevent and its exceptions do not seek to introduce new evidence in the record.  Rather, First Wind stated that its exceptions appropriately address the Examiners’ Report’s legal and factual conclusions, as well proposed conditions that are directly applicable to First Wind.

On February 6, 2012, the Public Advocate, Industrial Energy Consumer Group, Houlton Water Company and Boralex, Inc. (Intervenors) filed an opposition to the First Wind appeal, stating that First Wind is not entitled to file exceptions and allowing the filing would be unfair and prejudicial.  The Intervenors state that First Wind had every opportunity to become a party and was aware from the outset that it was affected by the outcome of the proceeding.  In addition, the Intervenors stated that First Wind resisted discovery on the grounds that it was not a party and it would now be inequitable and unduly prejudicial to grant it the benefits of party status.  Finally, the Intervenors argued that First Wind’s filing of its exceptions constitutes ex parte communications pursuant to Chapter 110, section 760-A.

B.        Revised Exceptions

            Through a procedural order issued on January 27, 2012, the Examiners directed Petitioners to file revised exceptions that remove all references to statements and information excluded from the record by the Examiner’s January 24, 2012 procedural order.  On February 2, 2012, the Petitioners filed their revised exceptions (including both a clean and redlined version). 

On February 6, 2012, the Intervenors objected and moved to strike the Petitioners’ revised exceptions in their entirety on the grounds that the exceptions did not comply with the directives to include only references to record evidence and to remove all references to information excluded from the record.  On February 10, 2012, the Petitioners filed an objection to the Intervenors’ motion to strike the exceptions, arguing that the revised exceptions complied with the Examiners’ directives and removed information excluded by the January 24, 2012 procedural order.  The Petitioners stated that the January 24, 2012 procedural order denied the requests of First Wind and Algonquin Power & Utilities Corp. (APUC) to file exceptions to the Examiners’ Report and, accordingly, the Petitioners removed all references to the excluded exceptions.  Moreover, the Petitioners responded that its revised exceptions are based on record evidence in the case.

III.        DECISION

            A.        First Wind Exceptions

                        We deny First Wind’s appeal of the Examiners’ denial of its motion to file exceptions.  We agree with the Intervenors that, under the circumstances of this case, it would be unfair to grant First Wind request for permission to file exceptions, while it avoided party status throughout the discovery and hearing portions of the proceeding.  We note that the interests of the Petitioners and First Wind are essentially aligned in this proceeding and therefore the Petitioners should be able to address First Wind’s views and interests in their exceptions. 

                        However, it is our view that First Wind did not act inappropriately by filing the motion for leave to file exceptions with the exceptions attached.  Chapter 110, section 760-A clearly contemplates that a non-party could file for leave to submit exceptions:  Section 760-A states in part:

                        In an adjudicatory proceeding, after the issuance of the presiding officer's report or proposed findings, no person shall make any direct or indirect communication to any commissioner, presiding officer, or other advisory staff member in connection with any potential or proposed decision in the proceeding or any issue of fact, law or procedure, except for the filing by a party of a response or exceptions to the report or proposed findings as permitted by section 752(b), or except as permitted by order or prior approval of the Commission or presiding officer, or except as by motion pursuant to section 1004. (emphasis added).

Chapter 110, section 760-A was added to our procedural rules in response to a situation in which a party caused numerous other persons to communicate that party’s position to the Commissioners after an examiner’s report was issued.  Order Adopting Rule Amendments, Docket No. 95-390 at 3-6 (Feb. 1, 1996).  These communications were not provided to the other parties in that proceeding, so that adverse parties could not address these communications.  As such, they were improper ex parte communications.  The circumstances in this case are very different.  First Wind properly sought leave to file its exceptions and its request was properly copied to all parties in the proceeding.  Thus, First Wind’s filing did not violate the ex parte rules.  Further, First Wind did not act improperly when it attached its exceptions to its motion for leave to file exceptions.  The filing of attached exceptions, similar to an offer of proof, preserves the record for appeal and allows a decision-maker to determine whether it should be allowed in the record.  The Commissioners and presiding officers are not juries and are capable of distinguishing between what is in the record for consideration and what is not.

B.        Revised Exceptions

            We deny in part and grant in part the Intervenors’ motion to strike the Petitioners’ revised exceptions.  We agree with the Petitioners that the revised exceptions complied with the Examiners’ directive to remove references to statements and information excluded from the record by the January 24, 2012 procedural order.  Accordingly, we deny the motion to strike the revised exceptions in their entirety.  However, because the First Wind exceptions have been excluded, the redlined version of First Wind’s exceptions that had previously been excluded will be disregarded.  While we encourage parties to submit redlines of documents in such situations, parties should identify those documents containing reference to excluded material as filed only for confirmation by staff that the Commission’s orders have been complied with by the party so ordered to remove reference to excluded material.[1] 

Dated at Hallowell, Maine, this 27^th day of February, 2012.

BY ORDER OF THE COMMISSION

_______________________________

Karen Geraghty

Administrative Director

COMMISSIONERS VOTING FOR:           Welch                                                                                                                                     Vafiades

                                                                        Littell  

NOTICE OF RIGHTS TO REVIEW OR APPEAL

            5 M.R.S.A. § 9061 requires the Public Utilities Commission to give each party to an adjudicatory proceeding written notice of the party's rights to review or appeal of its decision made at the conclusion of the adjudicatory proceeding.  The methods of review or appeal of PUC decisions at the conclusion of an adjudicatory proceeding are as follows:

            1.         Reconsideration of the Commission's Order may be requested under Section 1004 of the Commission's Rules of Practice and Procedure (65-407 C.M.R.110) within 20 days of the date of the Order by filing a petition with the Commission stating the grounds upon which reconsideration is sought.  Any petition not granted within 20 days from the date of filing is denied.

            2.         Appeal of a final decision of the Commission may be taken to the Law Court by filing, within 21 days of the date of the Order, a Notice of Appeal with the Administrative Director of the Commission, pursuant to 35-A M.R.S.A. § 1320(1)-(4) and the Maine Rules of Appellate Procedure.

            3.         Additional court review of constitutional issues or issues involving the justness or reasonableness of rates may be had by the filing of an appeal with the Law Court, pursuant to 35-A M.R.S.A. § 1320(5).

Note:   The attachment of this Notice to a document does not indicate the Commission's view that the particular document may be subject to review or appeal.  Similarly, the failure of the Commission to attach a copy of this Notice to a document does not indicate the Commission's view that the document is not subject to review or appeal.