BEFORE THE STATE CORPORATION COMMISSION OF THE ST A TE OF KANSAS

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1 Filed Date: 07/21/2015 State Corporation Commission of Kansas BEFORE THE STATE CORPORATION COMMISSION OF THE ST A TE OF KANSAS In the Matter of the Joint Application of Westar Energy, Inc. and Kansas Gas and Electric Company for Approval to Make Certain Changes in their Charges for Electric Service. Docket No. 15-WSEE-115-RTS MOTION FOR LEA VE TO FILE OUT OF TIME AND MOTION TO STRIKE THE TESTIMONY OF AS HOK GUPTA COME NOW Westar Energy, Inc. and Kansas Gas and Electric Company (Westar and for their Motion for Leave to File Out of Time and Motion to Strike the Testimony of Ashok Gupta state as follows: 1. On March 2, Westar filed its application to make changes in its charges for electric service. On June 26, less than two weeks before intervenor testimony was due to be filed - the Climate and Energy Project (CEP filed its Petition to Intervene (Petition. On July 6, 2015, Westar filed its response to CEP's Petition. In its response, Westar stated that the Commission should reject CEP's Petition because of the speculative and remote nature of its interests or, in the alternative, grant it limited intervention status as the Commission had done in the pending rate application of Kansas Power & Light Company (KCP&L in Docket No. 15- KCPE-116-RTS. The Commission has yet to act on CEP's Petition. 2. On July 9, 2015, CEP filed direct testimony of Ashok Gupta. Westar requests that the testimony be stricken from the record. Under the Commission's rules, parties have 10 days in which to respond to pleadings of other parties. K.A.R ( d. However, due to an oversight, this pleading is being filed one day late. Westar respective fully request that the Commission accept this pleading in order to have a complete record with regard to this matter.

2 3. At this time, CEP is not a party to this proceeding. For that reason alone, CEP's proffered testimony should be rejected because the procedural schedule allows only for filing of testimony by parties. It is due to CEP's delay in filing its Petition that it is not a party in this case. CEP should not benefit from its delay by being granted the right to file as though it were a party. 4. Moreover, as was discussed in Westar's Response to CEP's Petition, none ofcep's expressed concerns justify granting intervention. At most, Westar would expect that the Commission would grant CEP limited intervention status as the Commission did in the pending KCP &L docket. In that docket, the Commission found that because the potential impact of the docket on CEP is indirect, CEP's participation should be limited and "CEP will not be allowed to participate at the hearing." In the Matter of the Application of Kansas City Power & Light Company to Make Certain Changes in its Charges for Electric Service, Docket No. 15-KCPE- 116-RTS, Order Granting Limited Intervention to Climate Energy Project, at il 5 (May 5, There is nothing about this case that would makes CEP's interest anything but indirect. CEP should be treated in the same manner as was the case in the KCP&L docket. 5. Despite the Commission's order excluding CEP from participation in the hearing in the KCP&L matter, CEP filed testimony. The Commission struck the testimony from the record in response to a motion by KCP&L. In the Matter of the Application of Kansas City Power & Light Company to Make Certain Changes in Its Charges for Electric Service, Docket No. l 5- KCPE-116-RTS, Order Granting KCP&L's Motion To Strike Testimony Of Climate Energy Project Witness Ashok Gupta (June 11, In making its ruling, the Commission stated that the witness's testimony could only become part of the record if he appeared at the hearing and adopted it under oath. Because, under the prior order, the witness could not appear at the hearing, 2

3 the testimony could not become part of the record and the Commission ordered it stricken. Id. At ~ CEP waited until June 26, 2015, to file its Petition - almost four months after Westar filed its Application in the docket and less than two weeks before Staff and intervenor testimony was due. CEP waited until so late file despite the fact that its counsel - who also represents the Climate and Energy Project in the pending KCP&L rate matter - clearly knew the deadline for filing testimony and that the Commission had limited CEP's participation in the pending KCP&L rate matter. CEP offered no explanation for delaying its filing. The only reasonable conclusion that can be drawn from the timing of the filing is that it was deliberate and intended to allow CEP to file testimony before the Commission could issue its ruling on CEP's proposed intervention. 7. In anticipation that the Commission would apply the same status to CEP in this docket as was applied in the KCP &L docket, Westar requests that the proffered testimony of Ashok Gupta be stricken from the record in this case. The Commission should not allow CEP to use cynical and manipulative tactics to file testimony in this case and circumvent the Commission's approach to a party with indirect interests in the proceeding. WHEREFORE, Westar respectfully requests that the Commission strike the testimony of Ashok Gupta and for such other and further relief as may be appropriate. 3

4 Respectfully submitted, WESTAR ENERGY, INC. KANSAS GAS AND ELECTRIC COMP ANY Senior Corporate Counsel 818 South Kansas A venue Topeka, KS Telephone: ( Fax: ( Cathy.Dingcs({V,wcstarcncrgv.com Martin J. Bregman KBE #12618 Stinson Leonard Street LLP 1201 Walnut Street, Suite 2900 Kansas City, MO Telephone: ( Fax: ( marty.bregman(ii,stinsonleonard.corn 4

5 STATE OF KANSAS COUNTY OF SHAWNEE VERIFICATION ss: Cathryn J. Dinges, being duly sworn upon her oath deposes and says that she is the attorney for Westar Energy, Inc. and Kansas Gas and Electric Company; that she is familiar with the foregoing Motion and Response that the statements therein are true and correct to the best of her knowledge and belief. Ca~~i;r 7~~ a SUBSCRIBED AND SWORN to before me this J.1t day of ~ 1 A OebbieleeA. ~ -. Papps r-- llotarypuilic-state OF KANSAS ~ ~ MYAPPTEXP: - ; N p bl" otary u 1c My Appointment Expires: ~ ~f 1 ('Of 7 1 ;1 ' CERTIFICATE OF SERVICE I hereby certify that on this W day of July, 2015, the foregoing Response was electronically filed with the Kansas Corporation Commission and an electronic copy was delivered to each party on the service list. Cathryn J. Din ~ s 5