Rep: OEB Doc: 12QR1 Rev: 0 ONTARIO ENERGY BOARD Volume: 25 28 MAY 2003 BEFORE: R. BETTS PRESIDING MEMBER G. DOMINY MEMBER 1 RP-2002-0133 2 IN THE MATTER OF the Ontario Energy Board Act, 1998, S.O. 1998, c.15 (Schedule B); AND IN THE MATTER OF an Application by Enbridge Gas Distribution Inc. for an Order or Orders approving or fixing just and reasonable rates and other charges for the sale, distribution, transmission and storage of gas commencing October 1, 2002. 3 RP-2002-0133 4 28 MAY 2003 5 HEARING HELD AT TORONTO, ONTARIO 6 APPEARANCES 7 PAT MORAN Board Counsel COLIN SCHUCH Board Staff 8 TABLE OF CONTENTS 9 SUBMISSIONS BY MR. MORAN: [30] QUESTIONS FROM THE BOARD: [47] PROCEDURAL MATTERS: [94] 10 EXHIBITS 11 EXHIBIT NO. X.25.1: EXCE RPTS FROM VOLUME 21 OF THE TRANSCRIPT [19] EXHIBIT NO. X.25.2: EXCE RPT FROM VOLUME 22 OF THE TRANSCRIPT [24] 12 UNDERTAKINGS 13 14 --- On commencing at 1:48 p.m. 15 MR. BETTS: Welcome everybody, those of you who are present for day 25 of the hearing of application RP-2002-0133. The purpose of today's session is to consider recommendations and submissions on volumes 21 and 22 with respect to the level of redactions for confidential material. 16 It is the Board's understanding that there has been substantial discussion taking place among the interested parties and I believe there is some form of resolution to this and perhaps Mr. Moran, you could outline the current status. 17 MR. MORAN: Thank you, Mr. Chair. 18 You will have in front of you two documents, these are excerpts from volume 21 of the transcript and excerpts from volume 22 of the transcript. For the purpose of the submissions I'm about to make, they should be marked as confidential exhibits. Volume 21, the -- the first exhibit would be C.25.1, excerpts from volume 21 of the transcript. 19 EXHIBIT NO. X.25.1: EXCERPTS FROM VOLUME 21 OF THE TRANSCRIPT 20 MR. BETTS: Yes, Mr. Moran, what was the number you gave it. 21 MR. MORAN: C.25.1. 22 MR. BETTS: 25.1, thank you. 23 MR. MORAN: And the second exhibit would be C.25.2, which is an excerpt from the -- from volume 22 of the transcript. 24 EXHIBIT NO. X.25.2: EXCERPT FROM VOLUME 22 OF THE TRANSCRIPT 25 MR. BETTS: Mr. Moran, what is the reason for using C instead of the traditional X? 26 MR. MORAN: Very good question, Mr. Chair. I should have said X, I was thinking C for confidential but yes, in this proceeding we're using X for confidential so if you could change the C to an X. 27 MR. BETTS: Thank you. 28 MR. MORAN: Thank you, Mr. Chair. 29 MR. BETTS: Please proceed. 30 SUBMISSIONS BY MR. MORAN: 31 MR. MORAN: For the purpose of the submissions that I'm about to make, Mr. Chair, I don't think we have to go in camera; the document itself contains excerpts from the unredacted, but I don't have to make specific references to the content for the submissions I'm about to make. 32 The process that was followed in order to produce this document is as follows: As a result of the direction that you gave to the parties yesterday, the parties met with Board Staff and myself and what we did is we put together a document that consisted of all of the pages in the transcript that contained sections that the producing parties wanted to keep confidential and then we discussed those excerpts and the excerpts are as you see them in the two exhibits that have just been marked. 33 At the conclusion of that meeting, what the parties took away was a document that contained a proposal for redactions in response to what they had proposed and then they went away to seek instructions from their clients. 34 As a result of those discussions, substantial agreement was reached amongst them as to what would be appropriate, in their view, to redact and the results of those discussions are set out in the two confidential exhibits just marked. 35 If you look at the front of volume 21, you will see that a number of words have been put into boxes in pencil and those are the redactions that the parties are proposing and you'll see throughout the whole document that proposed redactions are highlighted in that fashion. 36 Again, just for the purpose of the record, the meeting that took place yesterday involved Ms. Stewart, Mr. Sproat and Mr. Howe for their respective clients. Nobody from Enbridge Gas Distribution was there, although some of the redactions were put forward by them and those were identified to me. 37 This morning, Mr. Sproat and Mr. Howe indicated that they were in agreement with the approach to the redactions that were in the document that was given to them at the conclusion at the meeting, along with a few additions that they wanted to make and upon discussion it was clear that the additional redactions that they were proposing were consistent with the ones that were already there. By oversight they had missed some numbers that had been redacted elsewhere and should be redacted consistently throughout the documents. 38 I undertook to add those redactions to these exhibits and bring them forward to you. Ms. Stewart wasn't present during those discussions. I met with her later on to discuss the redactions that she was proposing from the perspective of her clients, and again, agreement was reached with her. And the approach was the same; I undertook to add the redactions that she was proposing and had agreed to this document. So all of the redactions are captured in this document. 39 Given that she had agreed to reduce the original number of redactions that she had proposed, I then touched base with Mr. Sproat and Mr. Howe to confirm that they were fine with the reduced number of redactions that Ms. Stewart was proposing and they have confirmed that they have no problem with the change in the redactions that she was proposing. 40 I then touched base with Ms. Tanya Persad that the reduction in the redactions were acceptable to Enbridge Gas Distribution and she has confirmed the same, that there isn't any problem. 41 So what you have in front of you is a proposed set of redactions. We've had a chance, Board Staff and myself have had a chance to look at the proposed redactions and we're in a position to say to you that the proposed redactions are consistent with the principles and direction that you indicated yesterday on the record and we would recommend that these go forward as proposed. 42 For the purpose of assisting the court reporters who will then have to actually do the redactions and produce the redacted volume, there are a number of markings on these two exhibits. The only markings that are relevant to the redaction are the markings that show text in a box. In the margin there's some miscellaneous question marks and miscellaneous lines and those are all to be ignored. 43 There's one specific idiosycratic marking and that's to be found X.25.1, the excerpt from volume 21 at paragraphs 952 and 953. The 952 shows a word, the word "strategy" is in a box as being proposed for redaction but it's not being proposed anymore for redaction, it would stay in. And in the following paragraph, 953, the words "increase scale, divest operations to another entity" originally was proposed for redaction is no longer being proposed for redaction. All that's left in the remainder of that sentence which is in a larger box. 44 So subject to any questions you have, that's all I had to say about this proposed set of redactions. 45 MR. BETTS: Thank you, Mr. Moran, I will find out first of all if there are questions that we can ask in open session or whether we need to go to in camera. I believe that the panel would like some time to consider these to be comfortable that they -- that we can accept them. Just -- I believe that you made this point clear in terms of your use of characters in this redacted version that you -- there is a question mark, I see, in one margin, that's to be ignored; did I understand that correctly? Okay. Thank you. 46 Mr. Dominy, any questions? 47 QUESTIONS FROM THE BOARD: 48 MR. DOMINY: I just have a question on volume 22 and basically, I notice the way it's being identified for some which are in boxes and some which are underlined. Is the underline a short form of a box? If I look at 182, line 182. 49 MR. MORAN: Yes, you're right, Mr. Dominy, those are proposed for redaction and should be boxes. 50 MR. DOMINY: So all the underlines are. 51 MR. MORAN: Yeah. What I will do is make sure that all the lines that should be boxes are boxes before I provide a copy to the court reporters. 52 MR. DOMINY: Thank you. 53 MR. BETTS: I believe then the panel will take a little while to review this and I -- I'm very, very pleased personally to see that there's not a lot to review. I believe all of the parties have shown a very, very strong intent to try and accomplish the Board's needs in terms of producing public documents and from that point of view, I believe we will be able to deal with the recommendations quite promptly. 54 Perhaps while the Board is doing that, I would ask counsel to confer with the court reporters and ensure that your understanding is their understanding and perhaps when we return, you could verify that it's clear what has to be redacted and what doesn't have to be redacted. 55 MR. MORAN: Yes, Mr. Chair, we'll do that. 56 MR. BETTS: Then we will adjourn now and return at 2:30. 57 --- Recess taken at 2:00 p.m. 58 --- On resuming at 2:42 p.m. 59 MR. BETTS: Thank you. The Board panel has had an opportunity to review the recommended redactions and we do have several questions. We should be able to ask these questions without finding it necessary to go into closed session so -- and hopefully, Mr. Moran, you can answer the questions. If not, perhaps we'll have to seek further input from the interested parties. 60 The first question relates to Exhibit 25.1 which is volume 21 and Mr. Dominy and I have gone through this together so, just to save our voices, we will alternate our questions but we both share the questions that will be asked. 61 The first one is with respect to paragraphs 275 and 276. There's a notation in the margin that says "no." Does that indicate that they are not to be redacted? 62 MR. MORAN: That's right, Mr. Chair. Those two paragraphs were paragraphs that appeared in the redacted interim transcript that was provided so that Mr. MacOdrum could do his cross-examination and when that was pointed out, the producing parties agreed that given that it wasn't previously redacted, that it wouldn't be appropriate to redact it now. So it stays on the public record. 63 MR. BETTS: Thank you. 64 MR. DOMINY: The next one is on paragraph 282 and that paragraph, there are two redactions on the first line but there is a number on the third line and that I assume -- which is shown as not redacted, and I assume that's a number that relates to the distribution company; is that correct? 65 MR. MORAN: That's correct, Mr. Dominy. It's a number that EGDI is responsible for and therefore it's not a confidential number. 66 MR. DOMINY: Thank you. 67 MR. BETTS: If you direct your attention to paragraph 518 there is a section there that is underlined and it does have a question mark before it. Am I correct in assuming that that is to be redacted? 68 MR. MORAN: That's right. It shouldn't be just underlined it should be in a box and as -- indicating that it should be redacted. This was something that Ms. Persad asked for. 69 MR. DOMINY: The next one, a similar question on paragraph 873, and most of that paragraph is underlined except for a few words in the middle of the paragraph. Do I assume that just those two words in the middle of the paragraph is not redacted and the rest is redacted? 70 MR. MORAN: That's right. All of paragraph 873 should are redacted except for the phrase, "And then in the next paragraph, it notes that." 71 MR. DOMINY: Thank you. 72 MR. BETTS: Then with respect to paragraph 908 it currently is not redacted. As Mr. Dominy and I read it, we were wondering whether that information that's contained in that paragraph was already on the public record. Can you confirm that? 73 MR. MORAN: Yes, Mr. Chair. You'll recall that there was an Accenture agreement with B.C. Hydro that was available on the B.C. Hydro website. There are redactions in it but the agreement itself is a matter of public record with some redactions and the information here is all a matter of public record. 74 MR. BETTS: Thank you. 75 MR. DOMINY: The next one is in paragraph 1273 and there's a number in that paragraph and I'm not sure, is that one a number that should be redacted? 76 MR. MORAN: That's paragraph 1273? 77 MR. DOMINY: Seven three. 78 MR. MORAN: Yes, Mr. Chair, that's a number that's provided in the information in Exhibit X.21.1 and at tab 1.B, that would be a number that I would have to follow up on with the parties. 79 MR. DOMINY: Thank you. 80 MR. MORAN: And if they can confirm that it doesn't need to be redacted, then this document can stay unchanged and if they don't agree then I can pass that on to -- however you want to deal with it. 81 MR. BETTS: Mr. Dominy and I would be satisfied with whatever you and the other interested parties conclude with that. If your conclusion is that the number should be redacted, we would be satisfied to have it redacted. If you conclude that it's not necessary then we would be happy to see it in the public record. 82 Obviously, the criteria you would apply are -- is the same criteria that has been applied upon the other documents. 83 MR. MORAN: Thank you, Mr. Chair, I'll follow up, then, with the parties on that. 84 MR. BETTS: On the same page in paragraph 1281 there's also a reference to another number in there. We believe that that is on the public record; could you confirm that? 85 MR. MORAN: Yes, Mr. Chair. Again, if you go to Exhibit X.21.1, tab 1.B, you'll recall that in the last panel, the question was asked if the first two sets of numbers that are contained in the calculations were confidential or not, the witnesses indicated that those were public numbers and the $95.7 million is one of those numbers so it's a matter of public record. 86 MR. BETTS: Thank you. So it may remain then in its unredacted form. 87 MR. MORAN: That's correct. 88 MR. BETTS: The final point that Mr. Dominy and I would like to address is in Exhibit X.25.2, again, the transcript numbered 22. There are a series of references, I point out first of all, if we go to paragraph 329 is where it begins. 89 There are a series of references to the best I can make out, three different numbers. We notice in that section as well as sections to follow that they appear, in some cases, as being redacted, in some cases as being unredacted. 90 Are you in a position, at this point, to tell us which would be the correct situation? 91 MR. MORAN: In paragraph 335, there are two numbers there that are currently proposed to be redacted by the parties and I can confirm that one of them, the second one, is, in fact, one of the numbers that is public as a result of -- for the same reason as I indicated for the other number. If you go to Exhibit 21.1 and you look at the numbers in that exhibit in 1.B that are public, the 102.9 is one of those numbers. It reflects a number that's calculated in accordance with the TPBR formula and isn't a confidential number. The other number, I would have to follow up on. 92 MR. BETTS: Okay. And there was another reference later on -- well, then, Mr. Moran, if you could then just again confirm the status of that particular number with the interested parties, and again, Mr. Dominy and I will be satisfied with the outcome of your negotiations so you needn't come back to the Board for further approval based on the final negotiated decision. 93 MR. MORAN: I'll do that, Mr. Chair, yes. 94 PROCEDURAL MATTERS: 95 MR. BETTS: Anything further, Mr. Dominy? 96 With that, with those two minor items requiring some clarification, Board panel is quite satisfied with the redactions that are being recommended and on behalf of Mr. Dominy and myself, and, in fact, the Ontario Energy Board, we would sincerely like to extend our appreciation to all of the parties, including Staff represented by Mr. Moran and Mr. Schuch, for their efforts in satisfying the Board's needs for information as well as the Board's need to ensure that as much information as possible is kept in the public domain. 97 And certainly I would like to extend our thanks to the -- what we would call producing parties in this case: CWI, represented by Mr. Howe; CWLP represented by Mr. Sproat; EI and EOS, EGS and ECSI, represented by Ms. Stewart; and EGDI represented by Mr. Cass and Ms. Persad. The Board recognizes clearly the efforts that were made to, again, accomplish our requirements in both respects and we hope that our appreciation will extend back to those parties -- we certainly recognize the efforts that they made. 98 MR. MORAN: I'll pass that on, Mr. Chair. 99 MR. BETTS: Thank you very much. 100 And I would be remiss if I did not thank our court reporters, once more. It seems though I am doing it every session again for their flexibility. As a result of the some of the discussions that went on today, I think we've had this hearing scheduled for about three different times today and every time, they were ready. So once again, outstanding service from our court reporters. 101 Mr. Dominy, anything to add at this point? 102 [The Board confers] 103 MR. BETTS: With that, then, we will adjourn and we will reconvene tomorrow morning at 9:30 a.m. to continue hearing evidence. 104 Thank you, we stand adjourned. 105 --- Whereupon the hearing adjourned at 2:54 p.m.