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DECISION MEMORANDUM TO: COMMISSIONER KJELLANDER COMMISSIONER SMITH COMMISSIONER HANSEN JEAN JEWELL RON LAW LOU ANN WESTERFIELD LYNN ANDERSON RANDY LOBB DON HOWELL DAVE SCHUNKE BUD BARTHLOME TONYA CLARK BEV BARKER GENE FADNESS WORKING FILE FROM: DON HOWELL DATE: MAY 3, 2002 RE: RECONSIDERATION REGARDING INTERMOUNTAIN GAS'S REQUEST FOR A RULE EXEMPTION, CASE NO. INT-G-02-1 On March 27, 2002, the Commission issued Order No. 28982 granting Intermountain Gas Company an exemption from the Commission's Gas Service Rule 102, IDAPA 31.31.01.102. In particular, Rule 102 requires all natural gas utilities to inspect a customer's installation of a gas appliance before connecting the meter. The Company requested that in those instances where the customer's installation has been inspected and approved by an authorized inspection agency (state/city/county), that the Company be allowed to forego the "redundant" inspection. In its underlying petition, the Company asserted that eliminating the redundant inspection would reduce costs and improve customer service by eliminating the requirement for dual inspections in those instances when a governmental agency conducts inspections regarding the installation of gas appliances. On April 17, 2002, the Cities of Boise, Nampa and Pocatello all petitioned for reconsideration of Order No. 28982. On April 30 and May 1, Nampa and Boise, respectively, withdrew their petitions for reconsideration. On May 3, 2002, Pocatello withdrew its Petition. Pursuant to Rule 68 the withdrawal of a pleading is effective 14 days after filing. IDAPA 31.01.01.068. Normally once a party has withdrawn its Petition for Reconsideration, the matter is concluded. Before the Cities withdrew their petitions, the Staff had begun its analysis of their petitions. Even though the Cities have withdrawn their petitions, Staff has discovered two issues which merit the Commission's consideration. These issues are discussed below. STAFF ANALYSIS 1. Notice and Service. In the three petitions the Cities state that they became aware of Intermountain's request for an exemption and the Commission's Order just before the deadline for reconsideration. When analyzing this assertion, the Staff discovered that there was an error in serving the initial Notice of Petition and Notice Modified Procedure. The Commission's Rule 202.02 provides that copies of all Notices of Modified Procedure will be provided to "all . . . municipalities, counties, and chambers of commerce located within the territorial scope of the application, petition or complaint . . ." IDAPA 31.01.01.202.02. Although the Commission's Notice of Modified Procedure was served upon the chambers, the official service list in this matter does not indicate that the Notice was served upon municipalities and counties. Consequently, cities and counties were not individually served. 2. Changing Codes. Since issuance of the Notice of Modified Procedure on January 25, another issue has developed. During this year's legislative session, House Bill 586 was enacted. Section 39-4109 of this Bill provides that effective July 1, 2002, that the Idaho Division of Building Safety will adopt the following safety codes including the International Mechanical Code, International Fuel Gas Code, and "the latest addition of Uniform Mechanical Code." Idaho Code § 39-4109(1) and (4) (effective July 1, 2002) (emphasis added). Idaho Code § 39-4116 also provides that municipalities and counties which have not previously adopted safety codes must adopt the codes mentioned above (and others not pertinent here) if cities issue building permits. As the Commission is aware, gas utilities must comply with the Uniform Mechanical Code and the National Fuel Gas Code. IDAPA 31.11.01.203 and .202, respectively. Local agencies that have already adopted the Uniform Mechanical Code may subsequently adopt the International Mechanical Code. Pertinent provisions of HB 586 are attached. Enactment of HB 586 raises several new questions. First, Section 39-4116(2) requires that no later than January 1, 2003 local agencies adopt the 2000 International Building Code including the incorporated International Mechanical Code and the International Fuel Gas Code. This results in a patchwork of code applicability. For example, the Division of Building Safety which inspects installations where there is no local government inspection will utilize the International Mechanical Code, the Uniform Mechanical Code and the International Fuel Gas Code. Cities that issue building permits and perform code enforcement activities are required to adopt the International Mechanical Code and the International Fuel Gas Code. Compare Idaho Code §§ 39-4109(1) and (4) with 39-4116(2). Thus, under HB 586, the State's Division of Building Safety and local government must adopt the International Mechanical and Fuel Gas Codes while utilities must comply with the Uniform Mechanical Code and the National Fuel Gas Code. Second, in Boise City's petition (withdrawn), the City stated its intent to adopt the International Mechanical Code. Boise's petition stated that "local jurisdiction have been given the ability to adopt whatever mechanical code they choose to and it's the intention of many jurisdictions in Idaho including Boise City to adopt the International Mechanical Code after State legislation goes into effect in July." Boise observed that this "may cause problems and conflict in the future because we will be inspecting to a different code standard." Boise City Petition at 1. Thus, cities may be switching to other codes. Third, HB 586 and Boise City's statement highlights another issue. More specifically, at this point in time, Staff is unaware if there are substantive differences between the Uniform Mechanical Code and the International Mechanical Code, as well as the National Fuel Gas Code and the International Fuel Gas Code. Both Mechanical Codes are issued by the International Conference of Building Officials (ICBO). The ICBO has recently joined with other Code entities to form the International Code Council (ICC). Staff is not sure whether the Uniform Mechanical Code subsumed or incorporated in the International Mechanical Code. If the two mechanical codes are different, then this raises the question of whether there is "technically" a redundant inspection. In other words, if an inspection entity adopts a code different than those codes adopted by the Commission, the inspection agencies and the utilities may be inspecting under different code standards. Consequently, there may not be a "redundant" inspection because two different code standards may be applied. In raising the issues identified above, it is not the Staff's intent to delay this matter. The Commission may wish to explore whether it is appropriate to consider the adoption of other safety codes in an effort to have as much uniformity and ubiquity concerning the safety codes applicable to gas installations. At the writing of this memo, the Staff has not received information from the State Division of Building Safety about the substantive (if any) differences between the various safety codes. Although the three petitions for reconsideration have all been withdrawn, Rule 332 allows the Commission to grant reconsideration upon its own motion. IDAPA 31.01.01.332. Because this docket deals with public safety issues, Staff recommends that the Commission consider granting reconsideration on its own motion. Staff is also aware that the Division of Building Safety and the cities are scheduled to hold a meeting in June to discuss the implementation of HB 586. If the Commission desires to reissue its Notice of Modified Procedure, it might consider delaying the deadline for written comments until after this meeting. COMMISSION DECISION 1. Given the deficiency in service, does the Commission desire to reissue the Notice of Modified Procedure or take some other action? 2. If the Commission desires to reissue the Notice of Modified Procedure, does it wish to stay Order No. 28982 granting Intermountain Gas an exemption from Gas Service Rule 102? 3. Does the Commission wish to reconsider its prior Order on its own motion? 4. Does the Commission wish to take any other action? Donald L. Howell, II bls/M:INTG0201_dh3 (See Jean for attachment)