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									IN THE MATTER OF THE CONSIDERATION OF                           )
INNOVATM3 APPROACHES TO RATEBASE                                1
RATE OF RETURN UTEMAKING INCLUDING,                             )             DOCKET NO.08-137-U
B U T NOT LIMITED TO,ANNUAL EARNINGS                            1
REVIEWS, FORMULA UTES, AND INCENTIVE                            )             ORDERNO.       b
U T E S FOR JURISDICTIONALELECTRIC AND                          )
N A T U W GAS PUELIC UTILITIES                                  1


          Order No. 1, issued on September 25, 2008, initiated this Pocket and directed that

Initial Comments be filed in this matter no later than forty-five days from the date of Order
No, I. Pursuant to Order No. 1 the parties filed their Initial Comments on November IO,
 081       Order No,3, issued on December 2, 2008,directed that Reply Comments be filed
on February 3, 2009~Pursuant to Order No.3 the parties filed their Reply Comments on
February 3,2009. A public hearing in this matter has not yet been scheduled.

          The Petifion to Inter*vtens,filed in the above-styled Docket on February 2,2009,by

the National Audubon Society, Inc. and Audubon Arkansas, Inc. (coIledvely “Audubon”)

was granted by Order No, 5 issued on Februay 11, 2009. Thereafter, Audubon filed its
“Initial”Comments in this matter on February 1 ,zoog.

          On February iS,zoog, the General Staff of the Commission (3taff’) filed its Motion

to Spike (“Motion”) the “Initial”Comments of Audubon filed on February 12,2009. By its

Motion the Staff argues that Audubon’s “Initial” Comments should be stricken as untimely
filed given that the t m in which parties could file Initial Cornmenis expired on November

io,2008, and the time        in which parties could file Reply Comments expired on February 3,

1   The Southvest Power Pool, Inc. filed their Initial Comments early on November 7?2008.
                                                                          Docket NO.08-137-U
                                                                                  OrderNo. b
                                                                                   Page 2 of 3

       On February 19,     2009,   Audubon filed its Response to Motion to Strike
C‘Response”). Audubon states that on February 3? 2009, it “inquired about filing       *..   its

Initial Comments, but was asked by staff to hold them until the Commission rendered a
decision on its intervention. Audubon was not granted the right to intervene for another

eight days. Before that, Audubon again sought to file its comments and was told again by

the staff that it would need to await t h e determination on the motion to intervene.”
Further, Audubon argues that “no party interests have been compromised by the timing
and nature of Audubon’s Comments      ....”   In the alternative, Audubon requests that the
Commission “grant Audubon the permission to re-file the Comments under an immediate
deadline, and style them ‘Reply’ comments, as the Commission deems appropriate.”
       On February 23,2009,the Staff filed its Reply to Response ofAudubon to Motion to

Strike (“Reply”). Therein Staff clarifies that “Staff did not and does not oppose Audubon’s
participation in this Docket within the confines of the procedural schedule. It is Audubon’s
violation of the Commission’s [procedural] orders and rules which Staff opposes,” Staff
argues that Audubon’s Initial Comments should be stricken because “Audubon has never
attempted to show good cause for a waiver of the [procedural] schedule and [Commission]

rules in order to obtain permission for a late filing, particularly when it had actual
knowledge of the docket since immediately after its filing in September 2008.” Staff also
states that although Audubon does not identi@ the “staff person Audubon contacted on

February 3,2009,regarding the filing of Audubon’s comments, “it was not the attorney of
record for Staff.”

       Given that the Commission has not yet scheduled a hearing in this matter and that,

by this Order, the Commission will set si date for final written surreply comments at which
                                                                         Docket NO.08-137-U
                                                                                  Order No. 6
                                                                                  Page 3 of 3

time all parties will have an opportunity to respond to Audubon’s “Initial” Comments, the
Commission finds that no party has been compromised by the late filing of Audubon’s
“Initial” Comments. Accordingly, the Commission directs and orders as follows:
       1.   Staffs Motion to Strike is denied.
       2.   Audubon’s “Initial” Comments shall immediately be restyled as “Reply”

      3. Final Surreply Comments shall be filed by all parties by noon on March 27,


      4. A public hearing in this matter will be set by subsequent Order of the


      This 2 L day of February, 2009.

                                                 Paul Suskie, Chairman

                                                 Olan W,Reeves, Commissioner
n           n

yecretary of the Commission

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