 Good afternoon. I am Mike Towsley, and I have been assigned to serve as the hearing officer for the Public Utilities Commission in this matter which is an investigation pursuant to 30 VSA sections 209 and 30 regarding the alleged failure of Vermont Gas Systems Incorporated to comply with the certificate of public good in Docket 7970 by burying the pipeline at less than the required depth in New Haven, Vermont. The commission case number is 17-3550-IMV for this case. We are together today in my failure to conduct a status conference. There are several issues to discuss in today's status conference. For my own sake, I've attempted to isolate what I think they are and there may be more. And I'll just go down the list and I'd ask counsel to kind of follow me a little bit because I might be going back unless we suggest a different schedule with these questions as we move through the status conference today. Mr. Towsley, do you want to take appearances before we go any further? As soon as I'm done with this little bit. And then I'll go over these issues again after we do appearances. The first issue is holding a public hearing and informational session is proceeding. The second is addressing for the record the intervener's request that the scope of the investigation be expanded. The third is remaining party concerns with VGS's filings seeking to certify the pipeline's depth. The fourth is defining a non-substantial change determination and applying it as VGS proposes. Fifth is determining whether VGS violated the 2013 final order in the CPG. Sixth is if there was a violation, what penalty if any should be appropriate. And seven, preparing a schedule for the remainder of this proceeding. This is not an evidentiary hearing nor is it an opportunity to mitigate final resolution of many of these issues. However, it is an opportunity for the parties to talk about them in an effort to achieve, to clarify the issues and assist in their resolution. First, I'd like to take appearances so if you could state your name and your affiliation with this man. Then I'll summarize the off the record discussion we just concluded. Jim Porter on behalf of the Department of Public Service and with me today is Tracy Leibowitz, who is a new lawyer with the department. Donna Einhorn for the Natural Resources Agency. James Dumont for active interest. I'm here today on behalf of Vermont Gas Systems Incorporated. And with me from Vermont Gas is Beth Carrant as well as Chris LaForce who's at the table with me and Chris is the project engineering manager. And as well, I mean similarities had planned to attend with me today and unfortunately she had to go out of town to tend to a family emergency so she couldn't join us. Could you also use the mic? I could not hear. Thank you. Is it on? Yes. Okay. Let me state again what those seven things are, those seven issues, because I did battle through them relatively quickly and for counsel's sake I want to repeat them. The first issue at least as I see them and if there are others I will want to talk about those as well is holding a public hearing and informational session in this proceeding. I see this as an opportunity for the parties to address with the public in an informational session. The certification process that is as well as the burial basically the processes that VGS undertook and the examination has been done by it into it or the investigation into it that's been conducted. As well as conducting a public hearing afterwards to speak to and address their concerns if any that they have with regard to this investigation. The second issue is addressing for the record the intervener's request that the scope of this investigation be expanded. The third is remaining party concerns with VGS's filings seeking to certify the pipeline's depth. And it's kind of an opaque issue if only because there are a lot of issues that are a lot of potential concerns that may still be out there that has been some back and forth between the parties to attempt to refine those issues but the degree to which we can isolate the remaining areas of concern that the parties have with regard to the issues that arise in this proceeding we want to try to at least flesh them out and not necessarily solve them today. So that when we do get to an evidential hearing we're there for. The fourth one is defining a non-substantial change determination and applying it as VGS proposes. Non-substantial change determinations as they've been used most often are not an item of precedent. There's no, as I understand it at least and correct me if I'm wrong, there is no rule that defines a non-substantial change determination process. Generally as it has occurred in docket 7970 for example there were five previous non-substantial change determination requests. Those arose when the company sought to make changes to what they had proposed in their petition before they undertook to make those changes. In this case we have a different setting where the company proposes to apply a non-substantial or to request a non, has requested a non-substantial change determination after they've done the action that would cover the non-substantial change determination. And the question is that since there is no rule or regulation or law that addresses what a non-substantial change determination is and when it should be applied, I think that I bring this up now just so the parties are prepared, not today necessarily, to address whether a non-substantial change determination is an appropriate response for the commission to make in response to the filing from the company regarding the 18 locations in New Haven that the burial depth wasn't 4 feet. So that's number four. Number five is determining whether AGS violated the final order in CFG. And I bring that up because that is what the investigation is for. We're not going to resolve that today. But in the back and forth of looking at the affidavits and the details associated with them, sometimes that ultimate purpose can be lost and I want to make sure that the parties are aware of the need to present evidence that addresses whether or not the 2013 final order in CFG had been violated or not. And then the sixth is related is if there was a violation of the 2013 final order of CFG, what penalty, if any, is appropriate. And section 30 of Title 30 provides criteria for determining for the board to consider making a penalty determination. Generally, in a 30-30 investigation, the parties provide some evidence to support arguments under each of those criteria. So I saw that as another issue that at least in my refining where we're moving forward, how we're moving forward that needed to come up. And finally, preparing a schedule for the remainder of the proceeding. Those were the seven things that I thought that we at least needed to talk about a little bit today if not and likely not resolved, but at least make sure they were there as we move forward towards the next steps. Have the parties had any discussion as to an appropriate way ahead in this proceeding? This is on behalf of the intervenors, I've exchanged emails with the company's lawyer. So the company's lawyers know that we expect discovery. They have not agreed to that. Is your mic on? No, sorry. I'm sorry. Do you want me to repeat that? I can hear it, but I just thought it would be good if you could assist. Thank you. What matters that you want discovery into? One of the principal ones is what actually happened at the Clay Plain Swamp in New Haven. We have so far received Mr. St. Hilares affidavit stating that he talked to unnamed people and he satisfied that it happened the way the company says. We want to talk to those unnamed people. We have good reason to believe that when they're asked directly, it will be much more productive of useful information for the board, for the commission. Does the company have a response? With respect to discovery in general, it's our position that we've provided the commission with information to address the requests and various orders from the commission. We think there's information already presented in the form of the affidavits and the women's attachments to address the issues with one of their commission. But absolutely, if the commission feels it needs additional information in PGS, we're prepared to provide the PUC with that information. Is the department already in the agency having a position? With regard to discovery, we don't have any for discovery. And I think from the department's perspective, we're satisfied with the filings that have been made today and we don't have any for any further discovery. If I could elaborate a little bit. I was going to ask you a question and I may be what you were just going to say. But the purpose of the discovery would be to prepare you for cross-examination on Mr. St. Helena and other witnesses. Is that correct? Yes, and also, if necessary, to ask the board to commission, I keep on saying board, to issue a subpoena for witnesses to be present. With a proffer as to what the nature and quality of their actual answer. Absolutely. So what I was going to say, I'm sorry, is that the clay plain swamp is the most pressing need for us to take a deposition. The other questions we have, I think, some interobitories and requests to produce would suffice. So the follow-up discovery would be in the form of interobitories at deposition? And requests to produce, yes. And requests to produce and potentially subpoenas. Yes. I might, my clients might need a subpoena in order to obtain a deposition testimony because I expect the most important witnesses will be non-parties. So the only way I can summon them to a deposition would be for a subpoena for a deposition. I'm guessing that this would be for a contractor person, otherwise. That's correct. And that the eighth issue, and we'll discuss that more when we get to the seventh issue, which is the schedule. Before we get started, I just had, I have more questions for Mr. Einhard. And reviewing my materials in EPUC today, I think the last thing that I saw from the department was a document indicating you were going to make another filing in response to the August 11 certification. Is that correct? Correct. So you're still working on that? We, yeah, we intend to do that very shortly. We completed the analysis of the non-jurisdictional stream crossings and we have a position on that now. So we can do that. When do you anticipate that being available? I think we could probably do that this week. Yeah, I'm not rushing it because I think I'll go back to the list and ask the parties to respond to when and where and how they'd like to conduct a public hearing and information session this proceeding. Or if there's any discussion between the parties about this. So from the department's perspective, we have anticipated a public hearing. Obviously we think it would be appropriate to have it located within the area of the pipeline. And beyond that, have it really considered that. I like Bristol. The town hall building where we did that. Bristol is a nice town. It's pretty close to where we're at in terms of potential size for a party or for a public hearing related to activities in Monkton and New Haven, too. There may be another site in New Haven, but we could use a New Haven town hall as well with making it easier for Mr. Dumark to just walk on the street. As someone who has an office in Bristol, I can tell you the acoustics in that space in Bristol are very poor. I mean, from the larger space, and everybody complains about it, and there's a local fundraising effort going on to change the buildings to the acoustics aren't a disaster. For that reason, if a significant number of people are expected, it might be better to use the high school auditorium, which is just a half mile away, but the acoustics are much better. As far as the public hearing itself, I don't know if anyone else has thought about who would participate, but I would hope that it would not just be the company. My expectation would be that it would be very similar to what we saw in our central out-of-case investigation case where the company, the department and the agency, which is often the situation with almost all of our informational sessions as we're now using them. Basically, the department would host the event and provide relevant information and allow the other agency and the company as well as the department to provide information to the public and be responsive to questions about what's taken place from a factual perspective. So I would ask the hearing officer to consider whether or not some of the interveners might also be on the list of who's presenting information to start the proceeding off. We have exhibits and other information that we could be succinct with, but it might help focus the discussion. Okay. That isn't something I thought of, but not a bad idea. What's the other party's thing? It's fine with A&R. I think what makes sense, if this is acceptable to the hearing officer, is I'm happy to speak with the council to the other parties and come up with a proposal, including a proposed location, a date concept in terms of what information will be shared. And then I can file that with the hearing officer with some proposed dates if that's acceptable. That sounds good. I mean, I don't think it... Generally, we allow for an hour for the informational session. I don't think you need to be bound by that. I think if you got toward two hours, it might be a little bit long. But one to two hours, and that after that would be, you know, the second hour would go into the public hearing time because we'll finish at 10. So generally, the idea would be to start at 6 and finish by 10 with the event, with the public hearing following the informational session. And I'll stand by for a filing from the company proposing a time-making occasion after its discussion with the other council. The second issue, have we had enough discussion with regard to the first issue? The second issue is addressing, for the record, the hearing officer's request at the scope of the investigation to be expanded. Upon addressing the record today, at least the materials that are filed in the PUC, I think the request is moot in as much as, in two ways, in as much as the initial investigation included a review of a certification of the entire pipeline length, which includes the stream crossings as well as the residential area. So I don't think that, I think that we don't need to expand the scope because it was within the scope. And I think we've also seen in practicality that the parties have been acting as if it's within the scope anyway. So I'm not going to make a ruling on that other than to state that it's moot. The parties, is there any objection? No objection. Very well. The third one is remaining party concerns with VGS's filings seeking to certify the pipeline's depth. And this is kind of open to how you want to fill this issue discussion. This is an opportunity for the parties in a non-litigated, to the extent that it's not litigated setting, to talk about the remaining issues that would be addressed in a follow on evidentiary hearing. We've had the August 11th filing, which is the certification, a response to that from the parties, and then a rebuttal response to a degree from the company, each of which shaped to a degree the remaining issues associated with that certification, which is the fundamental element of the investigation. One thing I didn't see a lot of in those discussions were addressing the root cause analysis, whether the parties thought the root cause analysis was, I think the department addressed this a little bit in its comments, but whether the parties thought the root cause analysis was sufficient, was the request, was the response that the company made providing root cause analyses for three different events, and whether the parties thought that those root cause analyses were sufficient to address, at least what they believe occurred in this event and those other events, except that they have knowledge of them. I ask this because this is particularly related to any penalty determination. It may be that the commission will want more, or that they'll be content if the parties are content. I've seen root cause analyses before, and sometimes they kind of look like what we saw, and sometimes they kind of look like something else. That's only because I spend a lot of time in the military where people always spend a lot of time criticizing each other's behavior. That's what happens in a root cause analysis is an in-depth investigation into, an almost finite investigation into why an event occurred and what caused the event, and then what action steps the appropriate parties would be taking in response to what they discovered in that investigation. So I would ask the parties again to look at those root cause analyses and make suggestions, if appropriate, or at least have an opinion as to whether or not they were inadequate, and if they're inadequate, how they might need to be supplemented. Mr. Hearing Officer, may I respond? Yeah. First of all, I think I need to stop calling you Mr. Hearing Officer and say, sir. That's okay. That's a different part of my life. In answer to your questions about our remaining concerns, our remaining concerns do go to the root cause analysis and also the August 11 certification, and it's because of what we feel are very large gaps that we think discovery is appropriate. And rather than address them today, we wanted to address them after we've had some discovery. Okay. I understand. Do the parties have additional comments regarding concerns that they would articulate? If not, that's okay. Hearing none, we'll move on to the fourth issue again. I don't anticipate. I bring this up because I think this is an issue that has not been addressed in the party's memorandum of law regarding this proceeding, and that is the degree to which a non-substantial change to termination is defined and whether or to what degree it's applicable in this circumstance. So again, I bring that up because that's something that I know I will be asking questions about and we'll look forward to hopefully seeing some discussion from the parties about in future findings. Are there any questions about that now? The fifth and sixth issues again are the ultimate issues, that is whether there was a violation of the final order in CPG and whether, and if there was, whether the penalty is appropriate. Again, I bring those up to remind the parties that that's why we're here and that's what the focus of the investigation is. And then finally, what may be, well, is preparing a schedule for the remainder of the proceeding. Are the parties having discussions with regards to scheduling other than noting that the interveners want to do a little bit more discovery? There may be no other discussions. Okay. Would you like to attempt to put together a schedule now? Sure, I think that's good. Okay, I think I would like to leave the room while you do that and you can read privately too if that would facilitate your discussion. Do you think you could come up with the schedule today or should we just wait? I don't have a calendar if I'm just, I can't do it. I'm happy to have a discussion more about a schedule going forward but I want to go back to what I started talking about earlier that, you know, at this point... Could you use the mic? At this point, EGS has provided the PUC with the information that was requested in the various orders and I'm certainly pleased to give the PUC any additional information that it feels like it needs to rule on the matters before it. But we've heard from the department and we've heard from the agency that they don't feel there's a need for any further discovery process at this point in time. So, you know, I think that's an open item. Okay, well, let me rule on that then. We'll be allowed in order to ensure effective cross-examination of the existing witnesses and the development of any further evidence that might be produced. However, I think that this isn't a fishing expedition. If there are unreasonable extents to which discovery is going, you know, I would be willing to listen to why that's unreasonable and shut it down but if it's reasonable, we'll move forward. You know, again, I think that there has been a great deal of information provided by the company in the form of its affidavits but that kind of information generally leads to further questions and I think that's where we're at and that's why we need discovery in response to it. So, I would ask that I would rule or determine here that further discovery is appropriate and that your schedule should address it. Other comments? So, what I'm hearing I think is that it might be hard to do a schedule just now. I think that might be a challenge to do that right now and we can... We can adjourn and you guys can get together or we'll talk about it. Again, I'm not in a rush, so it's just... There's an opportunity here that I don't want you to lose in terms of the ability to get all the counsel together and rule to produce a schedule. This isn't a pre-hearing conference which is generally what I was expecting but this is an opportunity for you to attempt to generate a schedule. I just thought I would suggest that it's something that could be done. I'm gained for it. I think it's a good idea, but if Attorney Buford needs to consult with her clients more then we won't be able to reach a resolution today, which is fine. I understand that. Okay. What I think I'll do then is I'll ask the company to provide me with either a schedule for the proceeding agreed upon by the parties in two weeks. So today is the 10th. So October 24th not having a calendar in front of me. I think it's still... If that's a sufficient amount of time, not knowing what your schedules are. Either to provide a schedule or to provide a status report as to what a schedule might be available. Is that sound reasonable? It does. Is there any objection? No. No objection. Are there any other matters that were issues that we want to bring up in today's status conference? The agency? The intervenors? Your list of issues has covered everything. Thank you. Thank you very much.