1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of the : Application of The Dayton : 4 Power and Light Company : Case No. 16-395-EL-SSO for Approval of its : 5 Electric Security Plan. : : 6 In the Matter of the : Application of The Dayton : 7 Power and Light Company : Case No. 16-396-EL-ATA for Approval of Revised : 8 Tariffs. : : 9 In the Matter of the : Application of The Dayton : 10 Power and Light Company : for Approval of Certain : Case No. 16-397-EL-AAM 11 Accounting Authority : Pursuant to Ohio Rev. Code: 12 §4904.13. : 13 - - - 14 PROCEEDINGS 15 before Mr. Gregory Price and Mr. Nicholas Walstra, 16 Attorney Examiners, at the Public Utilities 17 Commission of Ohio, 180 East Broad Street, Room 11-A, 18 Columbus, Ohio, called at 10:00 a.m. on Wednesday, 19 February 1, 2017. 20 - - - 21 22 ARMSTRONG & OKEY, INC. 222 East Town Street, Second Floor 23 Columbus, Ohio 43215-5201 (614) 224-9481 - (800) 223-9481 24 Fax - (614) 224-5724 25 - - - ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 2 1 APPEARANCES: 2 Faruki, Ireland & Cox P.L.L. By Mr. Jeffrey S. Sharkey, 3 Mr. D. Jeffrey Ireland and Mr. Christopher C. Hollon 4 110 North Main Street, Suite 1600 Dayton, Ohio 45402 5 Dayton Power and Light Company 6 By Ms. Judi Sobecki 1065 Woodman Drive 7 Dayton, Ohio 45432 8 On behalf of the Applicant. 9 Ohio Partners for Affordable Energy By Ms. Colleen L. Mooney 10 P.O. Box 12451 Columbus, Ohio 43212 11 On behalf of the Ohio Partners for 12 Affordable Energy. 13 Richard Sahli Law Office, LLC By Mr. Richard C. Sahli 14 981 Pinewood Lane Columbus, Ohio 43230-3662 15 On behalf of the Sierra Club. 16 McNees, Wallace & Nurick LLC 17 By Mr. Frank P. Darr and Mr. Matthew Pritchard 18 21 East State Street, 17th Floor Columbus, Ohio 43215 19 On behalf of the Industrial Energy Users 20 of Ohio. 21 IGS Energy By Mr. Joseph Oliker 22 6100 Emerald Parkway Dublin, Ohio 43016 23 On behalf of IGS Energy. 24 - - - 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 3 1 APPEARANCES: (Continued) 2 Vorys, Sater, Seymour & Pease, LLP By Mr. Michael J. Settineri 3 52 East Gay Street Columbus, Ohio 43215 4 On behalf of Retail Energy Supply 5 Association. 6 Kravitz, Brown & Dortch, LLC By Mr. Michael D. Dortch 7 65 East State Street, Suite 200 Columbus, Ohio 43215 8 On behalf of Calpine Energy Solutions. 9 Carpenter Lipps & Leland LLP 10 By Ms. Kimberly W. Bojko and Mr. James D. Perko 11 280 North High Street, Suite 1300 Columbus, Ohio 43215 12 On behalf of the Ohio Manufacturers' 13 Association Energy Group. 14 Boehm, Kurtz & Lowry By Mr. Michael L. Kurtz, 15 Mr. Kurt J. Boehm, and Ms. Jody Kyler Cohn 16 36 East Seventh Street, Suite 1510 Cincinnati, Ohio 45202 17 On behalf of the Ohio Energy Group. 18 Environmental Law & Policy Center 19 By Ms. Madeline Fleisher 21 West Broad Street, Suite 500 20 Columbus, Ohio 43215 21 On behalf of the Environmental Law & Policy Center. 22 23 - - - 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 4 1 APPEARANCES: (Continued) 2 Spilman, Thomas & Battle, PLLC By Ms. Carrie M. Harris 3 110 Oakwood Drive Winston-Salem, North Carolina 27103 4 On behalf of Wal-Mart Stores East, LP, 5 and Sam's East, Inc. 6 Mr. Richard L. Sites 155 East Broad Street 7 Columbus, Ohio 43215 8 Bricker & Eckler, LLP By Mr. Dylan Borchers 9 100 South Third Street Columbus, Ohio 43215-4291 10 On behalf of the Ohio Hospital 11 Association. 12 Ohio Environmental Council By Mr. Trent A. Dougherty 13 1145 Chesapeake Avenue, Suite I Columbus, Ohio 43212 14 On behalf of the Ohio Environmental 15 Council. 16 Environmental Defense Fund By Ms. Miranda Leppla 17 1145 Chesapeake Avenue, Suite I Columbus, Ohio 43212 18 On behalf of the Environmental Defense 19 Fund. 20 Dickinson Wright, PLLC By Mr. William V. Vorys 21 150 East Gay Street, Suite 2400 Columbus, Ohio 43215 22 On behalf of the Mid-Atlantic Renewable 23 Energy Coalition. 24 - - - 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 5 1 APPEARANCES: (Continued) 2 Mike DeWine, Ohio Attorney General By Mr. William Wright, 3 Section Chief Mr. Thomas W. McNamee, 4 Ms. Natalia Messenger, and Mr. Thomas Lindgren, 5 Assistant Attorneys General 30 East Broad Street, 16th Floor 6 Columbus, Ohio 43215 7 On behalf of the Staff of the PUCO. 8 Bruce E. Weston, Ohio Consumers' Counsel By Mr. William Michael, 9 Assistant Consumers' Counsel 10 West Broad Street, Suite 1800 10 Columbus, Ohio 43215-3485 11 On behalf of the Residential Consumers of The Dayton Power and Light Company. 12 Carpenter Lipps & Leland LLP 13 By Ms. Angela M. Paul Whitfield 280 North High Street, Suite 1300 14 Columbus, Ohio 43215 15 On behalf of The Kroger Company. 16 PJM Interconnection LLC By Ms. Evelyn R. Robinson 17 2750 Monroe Boulevard Audubon, Pennsylvania 19403 18 On behalf of the PJM Interconnection LLC. 19 Doll, Jansen & Ford 20 By Mr. John Doll 111 West 1st Street, Suite 1100 21 Dayton, Ohio 45403 22 On behalf of the Utility Workers Local 175. 23 - - - 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 6 1 APPEARANCES: (Continued) 2 Ohio Citizen Action By Mr. Ellis Jacobs 3 130 West Second Street Suite 700 East 4 Dayton, Ohio 45402 5 On behalf of the Advocates for Basic Legal Equality. 6 Bricker & Eckler, LLP 7 By Mr. Devin D. Parram 100 South Third Street 8 Columbus, Ohio 43215-4291 9 On behalf of the People Working Cooperatively, Inc. 10 Calfee, Halter & Griswold LLP 11 By Mr. N. Trevor Alexander, Mr. James F. Lang, 12 Mr. Steven D. Lesser, and Mr. Mark T. Keaney 13 1200 Huntington Center 41 South High Street 14 Columbus, Ohio 43215 15 On behalf of the Honda of America Manufacturing, Inc., and City of Dayton. 16 Adams County Commissioners 17 By Commissioner Brian Baldridge 215 North Cross Street, Suite 102 18 West Union, Ohio 45693 19 On behalf of the Adams County Residents. 20 - - - 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 7 1 Wednesday Morning Session, 2 February 1, 2017. 3 - - - 4 EXAMINER PRICE: Let's go on the record. 5 Good morning. The Public Utilities 6 Commission has set for hearing at this time and place 7 Case No. 16-395-EL-SSO, being in the Matter of the 8 Application of The Dayton Power and Light Company to 9 Establish a Standard Service Offer in the Form of an 10 Electric Security Plan. 11 My name is Gregory Price. With me is 12 Nicholas Walstra. We are the Attorney Examiners 13 assigned to preside over today's hearing. 14 Let's begin by taking appearances 15 starting with the company. 16 MR. SHARKEY: Yes, your Honor, Jeff 17 Sharkey from Faruki, Ireland & Cox, and I have with 18 me my partner Jeff Ireland and an attorney with our 19 firm Chris Hollon. We in addition have -- from the 20 company with me I have Judi Sobecki and Sharon 21 Schroder. 22 EXAMINER PRICE: Thank you. 23 Mr. McNamee. 24 MR. McNAMEE: On behalf of the staff of 25 the Public Utilities Commission of Ohio, I am Thomas ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 8 1 McNamee. In addition, we would have Natalia 2 Messenger and Thomas Lindgren. The address is 30 3 East Broad Street, 16th Floor, Columbus, Ohio. 4 ATTORNEY EXAMINER: Thank you. 5 MR. MICHAEL: Good morning, your Honors. 6 On behalf of the DP&L's residential utility 7 consumers, the Office of the Ohio Consumers' Counsel 8 by Bill Michael. 9 MR. KURTZ: Good morning, your Honors. 10 Mike Kurtz, Kurt Boehm, and Jody Cohn for Ohio Energy 11 Group. 12 MS. BOJKO: Thank you, your Honor. On 13 behalf of the Ohio Manufacturers' Association Energy 14 Group, Kimberly W. Bojko and James D. Perko, the law 15 firm of Carpenter Lipps & Leland, 280 North High 16 Street, Suite 1300, Columbus, Ohio 43215. 17 MS. WHITFIELD: Good morning, your Honor. 18 On behalf of the Kroger Company, Angie Paul Whitfield 19 from the law firm Carpenter Lipps & Leland. 20 MR. PRITCHARD: Good morning, your 21 Honors. On behalf of the Industrial Energy Users of 22 Ohio, Matt Pritchard and Frank Darr with the law firm 23 McNees, Wallace & Nurick, 21 East State Street, 24 Columbus, Ohio 43215. 25 MR. SETTINERI: Good morning, your ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 9 1 Honors. On behalf of the Retail Energy Supply 2 Association, Michael Settineri, the law firm of 3 Vorys, Sater, Seymour & Pease, 52 East Gay Street, 4 Columbus, Ohio 43215. 5 MR. SITES: Good morning, your Honor. 6 Richard Sites on behalf of the Ohio Hospital 7 Association, 155 East Broad Street, Third Floor, 8 Columbus, Ohio 43215, and Dylan Borchers from Bricker 9 & Eckler, law firm of Bricker & Eckler, South Third 10 Street, Columbus, Ohio 43215. 11 MS. HARRIS: Good morning. On behalf of 12 Wal-mart Stores East, LP, and Sam's East, Inc., 13 Carrie Harris from the law firm Spilman, Thomas & 14 Battle. 15 MS. ROBINSON: Good morning, your Honor. 16 On behalf of the PJM Interconnection LLC, Evelyn R. 17 Robinson, 2750 Monroe Boulevard, Audubon, 18 Pennsylvania 19403. 19 MS. FLEISHER: Good morning, your Honor. 20 On behalf of the Environmental Law & Policy Center, 21 Madeline Fletcher, 21 West Broad Street, Suite 500, 22 Columbus, Ohio 43215. 23 MR. DOLL: Good morning, your Honors. On 24 behalf of the Utility Workers Local 175 and all of 25 its members, my name is John Doll from Doll, Jansen & ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 10 1 Ford, 111 West 1st Street, Dayton, Ohio. 2 MR. OLIKER: Good morning, your Honor. 3 On behalf of the IGS Energy, Joseph Oliker, 6100 4 Emerald Parkway, Dublin, Ohio 43016. 5 MR. SAHLI: Good morning, your Honors. 6 On behalf of the Sierra Club, Richard Sahli, 981 7 Pinewood Lane, Columbus, 43230. 8 MR. VORYS: Good morning, your Honor. On 9 behalf of Mid-Atlantic Renewable Energy Coalition, 10 Will Vorys, Dickinson Wright law firm, 150 East Gay 11 Street, Columbus, 43215. 12 MR. JACOBS: Good morning, your Honors. 13 Ellis Jacobs on behalf of Ohio Citizen Action, 14 Dayton, Ohio, Advocates for Basic Legal Equality, 130 15 West Second Street, Dayton. 16 MR. DOUGHERTY: Good morning, your Honor. 17 On behalf of the Ohio Environmental Council, Trent 18 Dougherty. 19 MS. LEPPLA: Good morning, your Honor. 20 On behalf of the Environmental Defense Fund, Miranda 21 Leppla. 22 MR. PARRAM: Good morning, your Honor. 23 On behalf of People Working Cooperatively, Devin D. 24 Parram, Bricker & Eckler, 100 South Third Street, 25 Columbus, Ohio 43215. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 11 1 COMMISSIONER BALDRIDGE: Good morning, 2 your Honors. Brian Baldridge, the Adams County 3 Commissioner on behalf of the Adams County residents. 4 MS. MOONEY: I'm Colleen Mooney on behalf 5 of the Ohio Partners for Affordable Energy, Post 6 Office Box 12451, Columbus, Ohio 43212. 7 EXAMINER PRICE: Thank you very much. 8 Oh, I'm sorry. 9 MR. DORTCH: Good morning, your Honors. 10 On behalf of the Calpine Energy Solutions, Michael 11 Dortch, law firm of Kravitz, Brown & Dortch, LLC, 65 12 East State Street, Suite 200, Columbus, Ohio. With 13 me is Mr. Lou Boston of Calpine Energy Solutions. 14 EXAMINER PRICE: Thank you. As we 15 indicated -- still one more. Trevor, I'm sorry. 16 MR. ALEXANDER: Trevor Alexander on 17 behalf of Honda of America Manufacturing, Inc., and 18 the City of Dayton. Also appearing are Jim Lang, 19 Steve Lesser, and Mark Keaney. All of us are with 20 the firm Calfee, Halter & Griswold, 41 South High 21 Street, Columbus, Ohio 43215. 22 EXAMINER PRICE: Sat in the same seat for 23 FirstEnergy and I think of you as the utility. It is 24 going to be a rough couple of weeks until I get used 25 to that. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 12 1 Anybody else I missed? 2 Thank you. As we indicated off the 3 record, there are a number of pending motions to 4 intervene and those will be addressed by subsequent 5 entry. 6 Mr. Sharkey, call your first witness. 7 I'm just kidding. 8 MR. DARR: You have been waiting for 9 that. 10 EXAMINER PRICE: Somebody in this room 11 put me up to this, and I won't say who. 12 Mr. Sharkey, you have a motion for 13 continuance pending? 14 MR. SHARKEY: Yes, your Honor. As your 15 Honors know, the Dayton Power and Light Company has 16 recently filed a stipulation. There are seven 17 parties to the stipulation and it is currently our 18 expectation that the Sierra Club will be joining the 19 stipulation. There is still some negotiations and 20 some details going on with the Sierra Club but that's 21 our expectation. 22 There are also two parties who signed the 23 stipulation as nonopposing parties and we have been 24 informed by a number of other parties that they do 25 not expect to be opposing the stipulation. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 13 1 We currently propose to be filing 2 testimony from two witnesses from the company. That 3 would be Sharon Schroder who would be addressing the 4 familiar three-part test that the Commission uses and 5 then in addition Jeff Malinak who would be addressing 6 the more favorable in the aggregate test from the ESP 7 statute. 8 So we, as you know, had requested a 9 expedited hearing in our motion on the stipulation. 10 The date that we had proposed and can be ready on is 11 Wednesday of next week. 12 EXAMINER PRICE: When are you going to 13 file the testimony? 14 MR. SHARKEY: Monday of next week, your 15 Honor. 16 EXAMINER PRICE: You are going to give 17 them two days for discovery? I suspect there is 18 going to be some comment on this. 19 MR. SHARKEY: Your Honor, we have, of 20 course, shown up here with a realization that 21 Wednesday was -- was an aggressive schedule. We put 22 that in there because it was a day we could be ready. 23 We are, of course, prepared to be reasonable, your 24 Honor. 25 EXAMINER PRICE: Comments on the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 14 1 procedural schedule? 2 MR. DARR: Yes, your Honor. 3 EXAMINER PRICE: Mr. Darr. 4 MR. DARR: Thank you, your Honor. While 5 we appreciate the disclosure we got this morning 6 there would be two witnesses testifying on behalf of 7 the stipulation, Ms. Schroder and Mr. Malinak, the 8 fact that they are filing testimony on Monday 9 obviously would put us in a bit of a box in terms of 10 trying to digest that testimony and move forward on 11 the schedule proposed by the company. 12 The parties that are likely to be 13 opposing the stipulation and recommendation and 14 overall the application have collectively met, many 15 of them met yesterday, and others were addressed -- 16 concerns were addressed this morning, and we are 17 prepared to propose an alternative schedule that we 18 think would meet not only the requirements of the 19 Bench and the Commission to get this case done on an 20 expedited manner but also fairly represent the 21 interests of the parties that are opposing the 22 stipulation and that will be responsible for paying 23 the $125 million per year charge that's embedded in 24 this application and stipulation. 25 To that end, what we are recommending is ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 15 1 that once the company files its testimony, whether 2 it's next Monday or a week from today, whatever they 3 choose, that the parties have an opportunity to 4 prepare discovery over a four-week period and then 5 file testimony in response to that new testimony and 6 the stipulation at that point and that the hearing 7 then commence a week after that. 8 I do not have for you a count of how many 9 parties are intending to file testimony at this 10 point. That may affect the timing because of the 11 need for depositions on the part of the company as to 12 when that hearing should start. But that is an 13 extension in addition to the schedule that we are 14 suggesting that the Commission and the Bench adopt 15 for this case. 16 Under this schedule we would also 17 recommend that the Commission shorten up the time for 18 response to interrogatories and requests for 19 production. We are all going to be under significant 20 time constraints to properly get this matter in front 21 of the Commission. To that end, we would encourage 22 the Bench to shorten the time frames from the current 23 10-day response to a 7-day response. Both sides 24 would be subject to it, and it would be evenly 25 balanced in that regard. And we fully expect that ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 16 1 there would be discovery going in both directions as 2 there normally is in these situations. 3 That being the case, as an example of 4 what would be appropriate now that the time 5 constraints are pulled off with regard to the SOS 6 generation component, we would recommend that the 7 company be required to file no later than February 8 8 its supporting testimony, that the parties be 9 permitted to respond with their testimony four weeks 10 later, I believe that's March 6, and that the hearing 11 commence on March 13, subject to, you know, 12 reasonable extensions that the company may need for 13 purposes of securing depositions of witnesses of 14 intervenors. 15 Let me just rationalize or -- rationalize 16 this a little bit more. There are a number of 17 proceedings going on here simultaneously. We have a 18 concern, obviously, and the Commission has in front 19 of it applications for rehearing concerning the 20 current $73 million charge. Customers don't want to 21 be paying that, but they recognize that the only way 22 of substituting that as an immediate effect is to get 23 this case moving forward and figuring out where the 24 nonbypassable charge, if any, will fall. And 25 obviously there are many of us that feel that there ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 17 1 should be no nonbypassable charge and we would like 2 to get this done sooner rather than later to try to 3 put a stake in that. 4 At the same time there are proceedings 5 going on at the Federal Energy Regulatory Commission 6 which may change the deck chairs here. The 7 generation transfer application has been heavily 8 contested, and as -- one of the issues before the 9 Commission at the Federal Energy Regulatory 10 Commission is the remaining debt held by DP&L, some 11 of which parties have argued should be transferred 12 with that -- with that generation assets -- with 13 those generation assets. Those may change or alter 14 some of the issues. 15 EXAMINER PRICE: With Mr. Bay's 16 resignation, is there any hope of a decision from 17 FERC on the horizon? My understanding they won't 18 even have a quorum. 19 MR. DARR: They won't have a quorum in 20 the at least next few weeks. There has been some 21 push, as I understand it, for the administration to 22 fill that seat to allow for a quorum to be available. 23 But in any case, we know that's out there. We know 24 that those issues are in play. So there is a balance 25 here. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 18 1 The most important constraint though is 2 the one that fortunately is no longer constrained and 3 that is the providing generation service to the SSO. 4 Given that the company, and we appreciate that as I 5 indicated earlier, has filed the motion to allow a 6 generation auction to go forward, that solves that 7 problem. I think -- when we were here the last time, 8 I suggested that the Commission could probably solve 9 that problem on its own unilaterally, but given that 10 we have got some agreement on that, that should no 11 longer be a constraint in how this case is presented 12 to the Commission. 13 What are constraints are the need to 14 address the nonbypassable charges and to do that 15 expeditiously. We believe this schedule would do 16 that. Thank you. 17 EXAMINER PRICE: Mr. Oliker. 18 MR. OLIKER: Your Honor, just before you 19 rule and in full disclosure, there may be an 20 additional witness in support of the stipulation on 21 retail issues. I don't foresee that testimony being 22 a big surprise to anybody, but without revealing the 23 context of specifics of the testimony, it would be 24 probably very similar to what's already in the record 25 so I wouldn't see that -- ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 19 1 EXAMINER PRICE: In the event of the 2 hypothetical testimony, can you have it 3 hypothetically filed by February 6? 4 MR. OLIKER: I believe so, your Honor. 5 EXAMINER PRICE: Any other opposing 6 parties care to weigh in on this? 7 MR. KURTZ: Just this, your Honor, I 8 think Mr. Darr's proposed schedule is supported by I 9 believe OCC, OEG, OMAEG, Kroger, Wal-mart, Ohio 10 Environmental, and I believe staff, and OPAE. So 11 it's sort of a broad coalition. 12 EXAMINER PRICE: Mr. Sharkey, would you 13 care to respond? 14 MR. SHARKEY: Yes, your Honor. As an 15 initial matter, Mr. Darr mentioned that there were 16 witnesses that would be sponsoring testimony in 17 opposition to the stipulation. This seems like an 18 awful long -- the proposed extension Mr. Darr 19 proposed would be four weeks to file testimony and 20 then a week later to hearing seems to the company to 21 be unduly slow. 22 We would ask for a much quicker path to 23 the hearing. For example, in the recent AEP case, 24 your Honor, I believe it was three weeks, if I recall 25 correctly, from the date of stipulation to hearing, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 20 1 and we would like to be on a schedule more like that. 2 I would like to ask, your Honor, if you could inquire 3 as to the number of witnesses that are anticipated to 4 be filing in opposition to the testimony. That may 5 help us to determine, you know, what's a reasonable 6 schedule here. 7 EXAMINER PRICE: I hate to even ask when 8 they have had -- I know parties were engaged in 9 negotiations, but the stip has been filed since 10 Monday. I am not sure people have -- Mr. McNamee. 11 MR. McNAMEE: I can speak to that, at 12 least in part. The staff prior to the stipulation 13 had anticipated about six witnesses, maybe five. 14 In -- because the stipulation creates additional 15 issues in the case, which frequently happens, the 16 staff now would be looking at adding several 17 additional witnesses, perhaps eight, perhaps nine 18 total. That testimony doesn't exist yet. We are 19 going to have to create that from the ground up. We 20 had not anticipated the need for that. That is part 21 of the complexity that I am sure all the parties have 22 to deal with. 23 EXAMINER PRICE: I will poll the room. 24 Nonbinding basis how many parties think they will 25 file testimony? You are not bound one way or the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 21 1 other. 2 Multiple witnesses? 3 MS. BOJKO: We haven't seen the testimony 4 yet, your Honor. 5 EXAMINER PRICE: I understand, I 6 understand. I also understand the stip has a -- 7 MR. McNAMEE: It won't make it simpler. 8 EXAMINER PRICE: -- has a lot of new and 9 different provisions. 10 MR. DARR: That's what I would like to 11 highlight, your Honor. If we were just talking about 12 what was embedded in the original application, many 13 of us had filed the testimony, identified the issues 14 we thought were important, and gone forward. 15 This stipulation opens up a whole other 16 set of issues, renewables, various rate credits, 17 various alternative proposals in terms of handling 18 EE/PDR money. There are all kinds of interesting 19 things that are raised by the stipulation that 20 weren't raised by the original application. Four 21 weeks in light of that probably is as quickly as 22 it -- as we could reasonably agree to as -- in terms 23 of a schedule to keep this moving. 24 EXAMINER PRICE: Mr. Sharkey, let me 25 preface -- ask you a question. Do you need more than ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 22 1 a week to depose intervenors' witnesses? 2 MR. SHARKEY: Absolutely not, your Honor. 3 Get it done in a week. Consulting with my clients, 4 your Honor, and I'm authorized to suggest that we 5 have intervenor testimony on March 1 and the hearing 6 would start on March 8. That gives intervenors a 7 longer time even between the stipulation filing and 8 the hearing start than has been approved from other 9 recent large ESP cases. I think that's more than 10 reasonable, your Honor. 11 MS. BOJKO: Your Honor, may I respond? 12 EXAMINER PRICE: Uh-huh. 13 MS. BOJKO: First of all, the AEP case 14 that was referenced was not an ESP case. It was a 15 PPA case. And that case is significantly different 16 and has a lot less issues. 17 In the recent FirstEnergy case, which was 18 an electric security plan case, there were four 19 stipulations filed in that FE ESP Case 14-1297. And 20 after the stipulation and testimony were filed in all 21 cases except the last one, which was much more 22 narrow, opposing testimony was initially due a 23 minimum of four weeks after it was filed, and the 24 hearing was scheduled after a minimum of seven weeks. 25 And in all of those cases both due dates and the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 23 1 hearing dates were subsequently extended. 2 So with the final stipulation which was 3 filed -- which was much more narrow, as I mentioned, 4 the Bench afforded over four weeks after the 5 stipulation and testimony was filed to prepare and 6 file opposing testimony with the hearing five weeks 7 after the stipulation. 8 So I would disagree with the notion that 9 the AEP case was an ESP case and was similar in 10 nature and say the FirstEnergy case with multiple 11 stipulations that introduced new issues is much more 12 akin to what is going on in this case; and, thus, the 13 schedule proposed by the intervenors is much more 14 reasonable and appropriate. Thank you. 15 EXAMINER PRICE: Anybody else? 16 I think we are down to a difference of 17 five days actually. So I think we're in the ballpark 18 either way. We are going to -- going to consult with 19 my colleague. 20 We are going to accept Mr. Sharkey's 21 compromise offer. It's only five days different from 22 what the intervenors suggested. We are mindful of 23 the need to keep this case moving in light of the 24 $73 million RSR which would be supplanted by a new 25 ESP, if the Commission ever adopts one. But, you ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 24 1 know, we are also cognizant of the point Ms. Bojko 2 made. If there are additional stipulations, 3 additional provisions, it's likely we will have to 4 have the hearing -- hearing date slide after that. 5 Ms. Bojko pointed out we had four different 6 iterations in FirstEnergy so who knows what may 7 happen in the future. 8 That being said, then intervenor -- I am 9 going to make the February 6 date a due date. 10 Testimony in support of the stipulation will be filed 11 by February 6, 2017. Intervenor testimony will be 12 filed by March 1. And company -- we will go forward 13 with the hearing on March 8, 2017, at 10 o'clock. 14 Ms. Fleisher, would you like to discuss 15 rebuttal testimony? It's always an issue you have an 16 interest in. 17 MS. FLEISHER: No, thank you, your Honor. 18 MR. McNAMEE: Did you speak to the 19 request about discovery? 20 EXAMINER PRICE: Yes. Discovery 21 responses will be shortened to seven days. 22 MR. McNAMEE: Thank you. 23 MR. PRITCHARD: Just for clarification 24 was that calendar days or business days? 25 EXAMINER PRICE: Calendar days. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 25 1 MR. PRITCHARD: Thank you. 2 EXAMINER PRICE: Calendar days. We are 3 not going to set a deadline for staff testimony, but 4 we will ask the staff to move with all deliberate 5 speed to file both the initial testimony and the 6 testimony in response to the stipulation. 7 MR. McNAMEE: We will endeavor to move 8 that along as quickly as possible and file it as it 9 becomes available. 10 EXAMINER PRICE: Thank you. 11 Any other issues we need to discuss 12 today? 13 COMMISSIONER BALDRIDGE: Your Honor, 14 Brian Baldridge, Adams County. We are one of the 15 late intervenors, and obviously I am out of my 16 commissioner's role in this room, but because we are 17 late and because there is a lot of things that have 18 worked with local governments in the 48-page document 19 that I saw and for Adams County it's a huge 20 broadbrush. It talks about millions of dollars in 21 settlement. 22 So I appreciate you extending it, but I 23 would encourage and we would love to be at the -- 24 come to the table and communicate with DP&L. I would 25 like that to be on the record because they have ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 26 1 refused. You know, we are all partners here together 2 in southern Ohio and this is a huge negative impact 3 for us. 4 And I know that deals have been cut with 5 other governments and we have not been at the table 6 and it's a broadbrush. I am a four-term commissioner 7 and when moneys are thrown out in a broadbrush, they 8 get lost and we do studies and there is direct moneys 9 for the Dayton area in the 48-page document, that 10 Dayton Airport, Dayton Economic Development, Dayton 11 Port Authority. We haven't been at the table, and I 12 would encourage -- the president of DP&L, Mr. Raga, 13 stated that intense negotiations for months of the 14 stakeholders. I believe Adams County is a 15 stakeholder, so I would encourage that. 16 EXAMINER PRICE: Thank you. 17 Mr. Darr. 18 MR. DARR: Do you want to respond to 19 that, Mr. Sharkey? 20 MR. SHARKEY: No. Go ahead. 21 MR. DARR: I am not responding to that. 22 One other matter that I just want to 23 bring to the Bench's attention, there is a pending 24 motion to dismiss various portions of -- actually two 25 motions to dismiss various portions of the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 27 1 application. If the Bench were to rule on that, that 2 might -- one or the other motions, that might greatly 3 simplify some of the issues that remain for hearing. 4 Specifically the motions go directly to the 5 lawfulness in light of the DMR. Arguably that still 6 applies to the DMR/DIR that's been filed today -- or 7 filed in the stipulation. 8 Additionally, there are a number of 9 riders where there are questions about lawfulness and 10 support contained in the application. To the extent 11 the Bench rules on those, the Commission rules on 12 those, obviously that would assist the parties as 13 they are preparing for the hearing scheduled now for 14 March 8. 15 EXAMINER PRICE: Thank you. We will keep 16 that in mind. 17 Ms. Bojko. 18 MS. BOJKO: Thank you, your Honor. One 19 discovery matter, given the shortened time frame for 20 hearing in this matter, it might be helpful, it's our 21 understanding, at least, the media and a DP&L press 22 release mentioned side agreements. As you know, 23 those are required to be produced to all parties. 24 Those have not yet been produced so we 25 request that they be produced in a timely manner in ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 28 1 order to expedite our review and appropriately 2 include those in testimony, if necessary. 3 EXAMINER PRICE: Do you have a pending 4 discovery request on that? 5 MS. BOJKO: We will today, your Honor, 6 but I was hoping that we could discuss that matter 7 here since it's required by rule. 8 EXAMINER PRICE: Let's go off the record. 9 (Discussion off the record.) 10 EXAMINER PRICE: Let's go back on the 11 record. 12 We have informally addressed that and the 13 discovery issue and that will take care of itself, if 14 necessary. 15 Anything else, Mr. Sharkey? 16 MR. SHARKEY: Can I have one minute, your 17 Honor? 18 One last point just so it's on the 19 record, your Honor, in response to the statements by 20 Adams County, the company certainly would be willing 21 and happy to sit down and talk to Adams County. As 22 your Honors know, the Adams County and some related 23 intervenors intervened very late in the case, and we 24 have not had settlement negotiations with them but 25 certainly would talk to them. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 29 1 EXAMINER PRICE: Thank you. Well, you 2 are all in the room here together so this might be an 3 opportunity for you. Mr. Walstra and I will be 4 leaving. 5 Anything else? 6 With that we are adjourned. We will 7 recommence on March 8, 2017, in this room at 10:00 8 a.m. Thank you. So we are off the record. 9 (Thereupon, at 10:35 a.m., the hearing 10 was adjourned.) 11 - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 30 1 CERTIFICATE 2 I do hereby certify that the foregoing is 3 a true and correct transcript of the proceedings 4 taken by me in this matter on Wednesday, February 1, 5 2017, and carefully compared with my original 6 stenographic notes. 7 8 _______________________________ 9 Karen Sue Gibson, Registered Merit Reporter. 10 11 (KSG-6308) 12 - - - 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481