OAH Docket No. 7-2500-17338-2
PUC Docket No. SA-06-665
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE
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In the Matter of the Petition of Otter Tail Corporation, d/b/a Otter Tail Company, to Serve Otter Tail Ag Enterprises |
PREHEARING ORDER |
A
Prehearing Conference in this matter was held on June 20, 2006, in the Small
Hearing Room of the Public Utilities Commission,
Appearing
on behalf of the Otter Tail Corporation (OTC) was Bruce Gerhardson, Associate
General Counsel, Otter Tail Corporation,
Appearing
on behalf of Lake Region Electric Cooperative (Coop) was Harold P. LeVander,
Jr., of the firm of Felhaber, Larson, Fenlon & Vogt,
Appearing
on behalf of the Commission staff was Stuart Mitchell, Minnesota Public
Utilities Commission,
Based on the discussion held among the participants, and having considered all the arguments and comments, the Administrative Law Judge makes the following Prehearing Order:
INTERVENORS
1. The Department of Commerce has indicated that it will not be participating in this matter. A Scheduling Order was issued by the Administrative Law Judge (ALJ) on June 23, 2006. The final date for intervention was set at June 30, 2006. Any person allowed to intervene in this proceeding after the date of this Order shall be bound by the terms of this Order.
2. Although it has not intervened a party, Otter Tail Ag Enterprises, the customer for whom electric service is sought by both OTC and the Coop, is deemed to be a party-in-interest in this matter. The extent of its participation in the case is specified elsewhere in this Order.
SCHEDULE
3. The following Schedule is adopted and, except when modified by Order of the Administrative Law Judge, shall govern this proceeding:
Intervention – June 30, 2006
Prefiled Simultaneous Direct Testimony – August 15, 2006.
Prefiled Simultaneous Rebuttal Testimony – September 1, 2006.
Evidentiary Hearings – September 12 – 13, 2006.
Posthearing Schedule – Determined at Close of Hearing
4. The parties shall submit Briefs and are encouraged to submit proposed Findings of Fact and Conclusions, all appropriately referenced to the official record, at such times after the close of the evidentiary hearings as shall be directed by the Administrative Law Judge.
PROCEDURE
5. The Rules of the Office of Administrative Hearings shall govern the conduct of the hearings herein. To the extent they are not superseded by the OAH Rules, the Commission’s Rules of Practice and Procedure shall also apply.
FILING OF DOCUMENTS
6. All direct testimony sponsored by all parties shall be filed in writing with the Administrative Law Judge and shall be received by the parties in accordance with the schedule herein. All prefiled testimony shall be in question and answer format. Each witness’s testimony shall have any attachments included as part of a single exhibit. Counsel for OTC indicated at the hearing that certain personnel or officials of the customer, Otter Tail Ag Enterprises, would be witnesses for OTC.
7. All documents filed, including prefiled testimony, shall be filed as follows:
a. Prior to the issuance of the Report of the Administrative Law Judge, the original document and one copy but excluding information requests and responses, shall be delivered or mailed to:
Richard C. Luis
Administrative Law Judge
Office of Administrative Hearings
b. Fifteen (15) copies shall be filed with the Commission Secretary for distribution among Commissioners and Commission staff. The copies shall be delivered or mailed to:
Burl W. Haar
Executive Secretary
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c. Except as hereinafter provided, one (1) copy shall be served personally or by mail on the attorney of record for each party and the customer, or, if there is no attorney, upon the party.
d. Four (4) copies of each such document shall be served personally or by mail on Kathy Aslakson as follows:
Kathy Aslakson
Docket Coordinator
Minnesota Department of Commerce
e. One (1) copy of each of such document, excluding information requests and responses, shall be served personally or by mail on:
Janet Shaddix Elling
Shaddix & Assoc.
9100 W.
f. Service and filing of documents is governed by Minn. R. 1400.5550. Where feasible, documents should be served electronically, by sending a copy of the filed document by electronic mail to persons whose electronic mail address is provided on the service list. When a document is served or filed electronically, a hard copy must be mailed promptly to the recipient. No mailing is required to persons indicated for service by electronic mail only on the service list. Where a document is served or filed only by hard copy, a contemporaneous electronic mail must describe briefly the document and that it has been provided only in hard copy.
g. A service list is attached to this Order. The service list will be updated as needed to reflect changes to the status of parties and participants. Service of documents in the numbers required by this Order shall be made according to the version of service list effective at the time of service.
h. Subsequent to the issuance of the Report of the Administrative Law Judge, original documents shall be filed with the Executive Secretary of the Commission.
i. Pursuant to Minnesota Rules, part 1400.5100, subp. 9, the effective date of filing shall be the date the document is mailed or delivered to the Administrative Law Judge or to the Executive Secretary of the Commission.
j. Proof of service shall be filed with each filed document.
8. One copy of any document or information filed with or supplied to the Public Utilities Commission or the Commission staff relative to any issue in these proceedings which is not otherwise served on the parties or their attorneys pursuant to the proceeding hereof shall be served on the attorney of record for each party and the customer, or, if there is no attorney, upon the party.
DISCOVERY
9. All requests for information shall be made in writing to the person from whom the information is sought with a copy of the request mailed to all parties of record. No such request shall be provided to the Administrative Law Judge or the court reporter. The party responding to the information request shall provide the information requested to the requesting party within ten (10) days from the date of the request. Information responses by Otter Tail Ag Enterprises and either party to the case shall be provided to the other party(ies) and Otter Tail Ag Enterprises, as appropriate. In the event the information cannot be supplied within such ten-day period, the responding party shall notify the requesting party, in writing, within five days of the request to work out a schedule of compliance with the requesting party. All disputes concerning the reasonableness of discovery requests and the timing and sufficiency of responses shall be resolved by the Administrative Law Judge upon Motion of a party.
10. Otter Tail Ag Enterprises, the customer, is
not a full party to this proceeding.
However, its counsel has indicated that because of the issue of the
appropriate status and treatment of Otter Tail Ag Enterprises relative to
discovery, that Otter Tail Ag Enterprises agrees voluntarily to cooperate with
information requests from both utilities, and has authorized the Administrative
Law Judge to issue an appropriate order relative to discovery. Therefore, IT IS ORDERED that Otter Tail Ag
Enterprises, which has stated a preference that OTC be the electric supplier to
his plant, shall cooperate with discovery requests as ordered in this document
in the same way that full parties to this proceeding are bound. Accordingly, the procedures laid out in the
previous paragraph shall be binding upon Otter Tail Ag Enterprises. Discovery requests may be served by either
party on Otter Tail Ag Enterprises through its CEO, Jerry Larson, Otter Tail Ag
Enterprises,
11. Further discovery may be had herein in accordance with Minnesota Rules, parts 1400.6700 – 1400.6950. No deadline is set for discovery at this time.
PREFILED TESTIMONY
12. Prefiled direct, rebuttal and surrebuttal testimony shall not be bound into the record but shall be received as an exhibit to the record. Prefiled testimony not offered into the record shall be considered withdrawn and the witness may not be cross-examined concerning the withdrawn testimony. Except for cause shown, all revisions or corrections to any prefiled testimony shall be made in writing and served upon the Administrative Law Judge and the parties no later than five days prior to commencement of the evidentiary hearing.
ORDER OF TESTIMONY
13. Testimony in the evidentiary hearing shall be offered in the following order: OTC, Lake Region Co-op, and any other Intervenors in the order of their intervention. Cross-examination of the witnesses shall be conducted by the parties in the same order. The offering party shall have the opportunity for redirect after each round of cross-examination; provided, however, that parties shall not cross-examine their own witnesses. Except for cause shown, any new affirmative matter that is not offered in reply to another party's direct case shall not be offered in rebuttal or surrebuttal testimony and exhibits.
14. No later than five days prior to the commencement of the evidentiary hearings herein, each party shall submit to the Administrative Law Judge, the Commission and the other parties, a list of that party's witnesses and the order in which those witnesses will appear, indicating, if necessary, any day certain for testimony known to the party calling the witness. The final order of testimony will be as established by the Administrative Law Judge.
EXAMINATION OF WITNESSES
15. Parties shall examine and cross-examine witnesses through their attorneys, if they are represented by counsel. Any party not represented by counsel may examine and cross-examine each witness through any one representative chosen by the party.
16. Except for cause shown, objections by any party relating to the qualifications of a witness or the admissibility of any portion of a witness's prefiled testimony shall be considered waived unless the objecting party states in writing its objection with particularity to the Administrative Law Judge and serves a copy of such objections on the Commission and all other parties no later than five days prior to commencement of the evidentiary hearings. If an objection is made by a party, the party shall be permitted to lay further foundation for the objection through cross-examination of the witness. Any prefiled testimony which is not objected to shall be admitted during the evidentiary hearings without the necessity of laying a foundation for the testimony.
MISCELLANEOUS
17. A final prehearing conference may be held on a date determined by the Administrative Law Judge. The purpose of this prehearing conference would be to mark exhibits to be offered at the hearing, including exhibits to be offered upon cross-examination, and portions of depositions to be introduced into the record. In the unusual case where the attorney for a party believes that an exhibit should not be disclosed to the opposing parties prior to oral examination, he or she may present a copy of the exhibit to the Administrative Law Judge with a brief memorandum of explanation in support and circulate copies of the exhibit to the other parties at the time of cross-examination.
18. Parties are encouraged to stipulate evidence not in dispute and to narrow the scope of contested issues to the matters actually in dispute. All stipulations will be subject to public testimony to be received, acceptance by the Administrative Law Judge, and review by the Commission, which shall include the opportunity for the Commission or its staff to examine any witness on the record irrespective of the existence of a stipulation between the parties with respect to such testimony.
19. This Order is effective immediately and may be modified by the Administrative Law Judge for cause.
Dated this _12th_ day of July, 2006
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/s/ Richard C. Luis |
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RICHARD C. LUIS |
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Administrative Law Judge |