As stated in ALJ Logan's August 25th notice for the workshops, staff expects to use questions posed in the August 12, 2005 letter to the parties as the starting point for discussion. That letter is attached. Because Paul Graham has suggested a slightly different format (see Paul's discussion below), staff believes that discussion of certain major issues should be postponed until after the parties have reviewed the legislative history that DOJ is preparing. As a result, we will not be discussing questions #6, #7, #9-#11, #19 and #21 until the second workshop on October 14.
At the first workshop, we will also discuss whether we should extend the schedule to allow slightly more time. NW Natural, PacifiCorp and Avista have proposed an issues list that will be available at the workshop. We will be discussing some issues from their list, but believe there are several general issues that are more appropriately addressed in the legislature or in written comments to the Commission. We urge parties to focus on specific sections of the law as much as possible.
Paul Graham's comments are as follows:
This rulemaking is not typical. In a typical rulemaking, the parties have an understanding of the underlying law. The agency prepares draft rules, and the parties make suggestions to support or change the draft.
In this rulemaking, there may be many disputes about how to read SB 408. Some possible areas of disagreement are:
(1) The meaning of "properly attributed," which appears in several places in the bill;
(2) The meaning of Section 3(12)(f)(B), which deals with increasing the "taxes paid" by a utility to reflect "tax savings realized as a result of tax credits..."; and
(3) Whether the automatic adjustment clause under Section 3(4) through (7) must be retroactive or may be prospective.
The Commission believes that it will be useful for parties to comment on how to read SB 408 before they recommend specific language for rules. Parties should support their arguments with the text and context of the bill, and if they choose, the legislative history of SB 408 and SB 171 as well, as the latter bill, for a time, contained many of the provisions that the legislature eventually included in SB 408. To assist parties who wish to use legislative history, the Department of Justice will prepare an "official" version of SB 408 and SB 171, using solely the material from the state archives, and it will provide a copy to all parties who wish to weigh in on the meaning of the new law.
The approach I lay out in the previous paragraph will provide discipline to this rulemaking, as we will all be using the same legislative history. And it will be what the Court of Appeals will use, should there be an appeal of the final order. The approach will also allow the Commissioners to understand what the new law does and does not require before it proposes draft rules in areas where the law in not clear.