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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Application ofPacifiCorp
d/b/a! Utah Power & Light Company for
Approval of Changes to its Electric Service
Schedules
) PacifiCorp s Post-hearing Brief on
) Reconsideration of Order No. 29034
P AC-02-
ACIFICORP
September, 2002
Page
James F. Fell
Erinn Kelley-Siel
STOEL RNES LLP
900 S.W. Fifth Avenue, Suite 2600
Portland, Oregon 97204
Phone: [phone]
Facsimile: [phone]
Attorneys for PacifiCorp, d/b/a Utah Power & Light Company
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Application ofPacifiCorp
d/b/a Utah Power & Light Company for
Approval of Changes to its Electric Service
Schedules PAC-02-
PacifiCorp s Post-hearing Brief on
Reconsideration of Order No. 29034
INTRODUCTION
PacifiCorp, d/b/a Utah Power & Light Company ("PacifiCorp" or "the Company"), is
asking this Commission to reconsider and set aside its determination in Order No. 29034, issued
June 7 2002 ("Order ), that PacifiCorp failed to provide adequate notice to its customers in
violation of Rule 102 of the Commission s Utility Customer Information Rules (IDAPA
31.21. 02.102) ("Rule 102") and its assessment of a $20 per customer credit, or a total of
087 720, as a penalty for the alleged violation.
The Commission has before it now factual evidence and legal argument that it did not
have when it made those findings. As a result of the evidence presented at the evidentiary
hearing on reconsideration on September 10, 2002 ("hearing on reconsideration ), the
Commission is now aware that: 1) if Rule 102 applied to the Company s Application for a
temporary power cost surcharge, the Company s failure to comply with that Rule was a good
faith mistake made after consulting with counsel-it was not a matter of neglect or indifference;
2) the Company had a communications plan in place and implemented it; 3) customers were
aware of the Company s Application and participated in the proceeding by way of intervention
public comment and attendance at the public meetings and hearing; and 4) all issues relating to
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785.3 0020017-00047
STOEL RIVES LLP
ATTORNEYS900 SW FIFTH A VENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
Page
the Company s Application and the rate change resulting from the Stipulation were raised and
thoroughly developed for Commission consideration prior to its decision to approve the
Stipulation in Order No. 29034.
The Commission should not be influenced by its prior action that was not sufficiently
informed. Rather, its decision should be influenced by the evidence presented at the hearing on
reconsideration and these important points:
There is a reasonable uncertainty about the applicability of Rule 102 to this filing.
The filing was not a general rate filing, and arguably not a tracker rate filing
either.
The penalty provided by IDAP A 31 , Title 21 , Chapter 02 (the Utility Customer
Information Rules) for a violation of Rule 102 is not a monetary one, and the
Commission has never before imposed a monetary penalty under Rule 102.
There was one violation here (if any), not 54 386. Ifbill stuffer notice as
provided by Rule 102 was required, the Company s failure to issue such notice
was a single violation of a Commission rule.
The law does not allow the Commission to order paYment of penalties to
customers. Civil penalties must be paid to the Idaho State Treasury.
The size of the penalty imposed is grossly in excess of any penalty the
Commission has ever before imposed on a utility-despite the strong mitigating
facts in this case.
The evidence and argument the Commission now has before it suggest that if a violation
of Rule 102 is found to have occurred, and if a monetary penalty is permitted by Idaho statutes
and administrative rules, the Commission s reaction should be moderate. To react otherwise will
result in disparately harsh treatment outside the bounds of the law and Commission precedent.
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785,30020017-00047
STOEL RIVES LLP
ATTORNEYS900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
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ARGUMENT
Legal Arguments Presented in PacifiCorp s Petition for Reconsideration.
Rather than restate in their entirety the legal arguments it presented in its Petition for
Reconsideration filed June 28 2002 ("Petition ), PacifiCorp hereby incorporates them by
reference. 1 Those arguments can be summarized as follows:
Rule 102, which requires individual customer notice when an electric utility applies for
a general or tracker rate change does not apply to a proceeding such as this (an application for
a temporary power cost surcharge), which is neither a general nor a tracker rate case. No one
alleges that this was a general rate case. This case also does not meet the definition of a tracker
case. The only definition of a "tracker" case appears in Rule 122.02 of the Commission s Rules
of Procedure, IDAPA 31.01.01.122., which states:
Exceptions for Trackers, etc. This rule applies only to general
rate increases. Examples of cases outside the scope of this rule
include (but are not limited to) fuel, power cost adjustment (PCA),
commodity or purchased power tracker rate increases, emergency
or other short-notice increases caused by disaster or weather-
related or other conditions unexpectedly increasing a utility
expenses, rate increases designed to recover govemmentally-
imposed increases in costs of doing business, such as changes in
tax laws or ordinances, or other increases designed to recover
increased expenses arising on short notice and beyond the utility
control.
If the term "etc." in the heading means anything, it means that some of the listed cases are not
trackers. This case constituted an "other increaseD designed to recover increased expenses
arising on short notice and beyond the utility s control." For the reasons described in
PacifiCorp s Petition, it was reasonable for PacifiCorp to conclude that such "other increases" do
not constitute trackers and do not require individual customer notice under Rule 102. This
interpretation is consistent with prior Commission application of Rule 102 to general and purely
1 The Commission agreed at the hearing on reconsideration that it would be appropriate
for PacifiCorp to rely on the legal arguments it presented in its Petition rather than restate them
in their entirety in its post-hearing brief.
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785.3 0020017-00047
STOEL RIVES LLP
ATTORNEYS
900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268
Telephone [phone]
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tracker rate cases. Therefore, if the Commission disagrees with the Company s interpretation of
Rule 102 and determines that the Rule applies to this proceeding, the Company should not be
penalized for its interpretation which is reasonable in light of both the text of the Rule and
Commission precedent.
Second, even if Rule 102 is interpreted to apply to requests for temporary rate surcharges
the only remedy authorized for violation of that Rule is return of the application to the filing
utility.2 This interpretation of the Rule is consistent with prior interpretations afforded it by the
Commission and its Staff, which have never before recommended or imposed a monetary
penalty for a Rule 102 violation.3 It is also consistent with the "Administrative Appeals" section
of the Utility Customer Information Rules, Rule 3 , which states that "(tJhere are no
administrative appeals under these rules because there are no proceedings under these rules.
As provided by the rules implementing the Administrative Procedures Act, every administrative
rule chapter must contain an "Administrative Appeals" section "to describe any appeal or
hearing rights for affected individuals relating to the programs or services described in the rule
chapter."s The Idaho Administrative Rule Writer s Manual requires that the "Administrative
Appeals" section of each chapter "state whether or not the rule is subject to administrative appeal
and cite the rule governing the appeal process." Thus, in promulgating its Customer Information
See IDAP A 31.21.02.102.05 (Rule does not create due process rights in customers, but
failure to comply "can be grounds for returning an application for incompleteness
See Re Avista Corporation dba Avista Utilities-Washington Water Power Division Case
No. A VU-00-, Order No. 28366 (May 2 2000) (Staff reminded company that Rule 102
notice, which "was once again deficient " could result in return for incompleteness); Re Avista
Corporation dba Avista Utilities-Washington Water Power Division Case No. A VU-00-
Order No. 28402 (June 13, 2000) (Commission imposes no penalty for repeated violations of
Rule 102); Re Intermountain Gas Company, Case No. INT-99-, Order No. 28068 (June 4
1999) (Staff and Commission agree that remedy for failure to comply with Rule 102 was to
return application for incompleteness; instead of returning application, Commission suspends
proposed effective date ofPGA tracker rate change for 30 days).
4 IDAPA 31.21.02.003.
s IDAPA44.01.01.101.02(e).
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-141678S,30020017-00047
STOEL RIVES LLP
ATTORNEYS900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
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Rules, the Commission did not afford any "appeal or hearing rights" for violations of Rule 102.
Instead, the Commission provided that the sole remedy for a Rule 102 violation is return of the
application for incompleteness. By contrast, the imposition of civil penalties by the Commission
requires "proceedings" and the right to appeal.6 A consistent reading of the foregoing provisions
can only lead to the conclusion that the monetary penalty imposed in this proceeding is not
authorized by Rule 102 and is, therefore, unlawful. Absent appeal or hearing rights, return of an
application to a utility is the only remedy for a Rule 102 violation that does not violate a utility
due process rights.
Third, the formula the Commission applied in this case to calculate the monetary penalty
imposed-" dollar amount multiplied by the number of customers served-is not
supported by the relevant statutes upon which the formula is based.7 Pursuant to those statutes
the maximum monetary penalty that can be imposed for the single rule violation PacifiCorp
allegedly committed is $2 000.8 As demonstrated by the following chart, the Commission s "per
customer" application of the Idaho civil penalty provisions is especially unconscionable when
applied to other utilities serving Idaho customers.
See Idaho Code 961-701 et seq.Idaho Code 99 61-626 627.
See Idaho Code 99 61-706 61-707 (maximum penalty for single violation of a
Commission rule is $2 000 per day).
8 As noted above, PacifiCorp disputes the Commission s finding that a violation of Rule
102 triggers the Idaho Code Chapter 61 , Title 7 penalty provisions.
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785.3 0020017-00047
STOEL RIVES LLP
ATTORNEYS900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
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Utility Number of Idaho Total penalty if # of Total penalty if# of
customers customers multiplied customers multiplied
by $20 by $2000
Idaho Power 369 924 398 480 $739 848 000
Company
Intermountain Gas 210 687 213 740 $421 374 000
Company
A vista Utilities 103 573 071 460 $207 146 000
United Water Idaho 534 370 680 $137 068 000
The excessiveness of those (potential) penalty amounts becomes even more apparent in light of
the fact that the Idaho Code contemplates thai single violations can be continuing, each
day s violation can be deemed a separate and distinct offense/o and because the text of the
applicable civil penalty provisions has not changed since those provisions were enacted in 1913.
Fourth, not only did the Commission misinterpret its authority regarding the amount of
the penalty it can impose under Idaho Code 9 61-701 et seq.it also exceeded its authority when
it required paYment of the penalty to customers instead of to the Idaho State Treasury. Idaho
Code 9 61-712 provides, in relevant part, that (a J II fines and penalties recovered by the state in
(an action to recover penalties under Title 61 shall be paid into the state treasury to the credit of
the general fund." (Emphasis added.) Thus, the Commission s order that the Company pay its
penalty directly to customers in this proceeding is unlawful. There is good reason for this
requirement that civil penalties be paid to the State Treasury; the power to order the paYment of
money to constituents creates a form of political patronage that is inconsistent with good
government.
9 These numbers are taken from the Commission s 2001 Annual Report.
10 Idaho Code 9 61-707.
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
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STOEL RIVES LLP
ATTORNEYS
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Finally, the Commission s interpretation and application ofIdaho Code 9 61-701 et seq.
results in a penalty that is without precedent in at least three respects 11 : (1) the Commission has
never before interpreted its rules to allow penalties to accrue on a per customer basis; (2) the
Commission has never before imposed a penalty of this magnitude for any type of violation
heretofore found under Chapter 61 , Title 7; and (3) the Commission has never before imposed
any monetary penalty for a violation of Rule 102. The Commission s decision to impose a
monetary penalty for an alleged violation of Rule 102 deviates significantly from its prior
practice with respect to violations of that Rule. In addition, the over $1 million penalty assessed
in this proceeding is grossly excessive in light ofthe violation alleged and the facts presented in
the hearing on reconsideration, and as compared to civil penalties imposed previously by the
Commission for violations that are more severe in nature and in scope.
Evidence in Mitigation if Rule 102 Applies to the Company s Application for a
Temporary Power Cost Surcharge.
If the Commission decides that Rule 102 applies to PacifiCorp s Application in this case
and that a monetary penalty is legal, the evidence the Company presented on reconsideration
supports a moderate reaction to the violation that occurred. As noted above, imposition of a
monetary penalty for a Rule 102 violation is unprecedented. The evidence the Commission now
has before it demonstrates that departure from that past practice is unwarranted, or that any
departure from that precedent certainly should not exceed the maximum penalty previously
assessed by the Commission for any violation ofIdaho s public utility statutes, rules or orders.
11 PacifiCorp s Petition details the numerous ways in which the Commission s findings
respecting the civil penalty imposed in this case deviate from its prior orders.
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785.3 0020017-00047
STOEL RIVES LLP
ATTORNEYS
900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268
Telephone [phone]
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The Company s Failure to Comply with Rule 102 was a Good Faith Mistake
Made After Consulting with Counsel-It was not a Matter of Neglect or
Indifference.
Compliance with the relevant state regulatory notice requirements and making as much
information available to customers as possible, consistent with clarity, are two of the primary
objectives the Regulation and Corporate Communications departments generally consider when
the Company anticipates making a regulatory filing. (Larson Direct Testimony on
Reconsideration, pages 3-4; Eskelsen Direct Testimony on Reconsideration, page 2 lines 4-10.
This filing was no exception.
When it filed its Application in this case, the Company reviewed the Commission
notice rules and took steps to ensure compliance. Before the filing was made, the Company
consulted with its counsel regarding whether Rule of Procedure 122 (60-day advance notice of
intent to file a general rate case) applied to this filing. (Larson Direct Testimony on
Reconsideration, page 5 lines 10-12.) Counsel reviewed the rule and advised PacifiCorp that
Rule 122 did not apply because this was not a general rate case. (Larson Direct Testimony on
Reconsideration, page 5 lines 13-14.) The Commission Staff confirmed this advice. (Exhibit
No. 26.
After filing the Application, issuing a press release, and complying with the notice
prescribed by Rule of Procedure 123 and Idaho Code 9 61-307 (filing of proposed schedules
with Commission and keeping schedules open for public inspection), the Company consulted
with its counsel regarding the applicability of Rule 102 to this filing. (Larson Direct Testimony
on Reconsideration, page 5 lines 16-, page 6 lines 10-12.) The Company s counsel reviewed
the Rule and advised the Company that, because this was neither a general nor a tracker rate
case, bill-stuffer notice under Rule 102 was not required. (Larson Direct Testimony on
Reconsideration, page 6 lines 12-15; Exhibit No. 26.Based on that advice the Company did
not provide bill-stuffer notice to customers regarding its Application. (Larson Direct Testimony
on Reconsideration, page 6 lines 17-18.
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785,30020017-00047
STOEL RIVES LLP
ATTORNEYS
900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
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In short, the Company did not ignore the Commission s Customer Information Rules or
take lightly its responsibility to communicate with customers about this filing. Both the
Company and its counsel reviewed each of the Commission s notice provisions-including those
provided by Rule 102-and evaluated their applicability to this Application. The Company
decision not to issue bill-stuffer notice was made after counsel advised it that Rule 102 did not
apply. Thus, if a Rule 102 violation occurred, it was the result of a good faith misreading of the
Rule, not the result of negligence or indifference.
These circumstances contrast starkly with the circumstances described in prior
Commission orders involving Rule 102 violations. In multiple proceedings involving repeat
violations of Rule 102, Avista Utilities-Washington Water Power Division characterized its
failure to comply with the Customer Information Rules' requirement of individual notice as
administrative oversight(J" and "inadvertent failure.12 Notwithstanding Avista Utilities
admissions respecting its failure to abide by the Rule 102 notice requirements, the Commission
did not impose any penalty upon A vista; instead it merely cautioned the company that "repeated
instances of oversights will demonstrate an unacceptable pattern ofneglect.,,13
At a minimum the circumstances surrounding the Company s decision not to provide bill-
stuffer notice to customers demonstrate that imposition of a monetary penalty that exceeds by
350 percent the highest penalty ever approved by the Commission is unreasonable.14 In light
of the Commission s treatment of Avista s repeated violations of Rule 102, PacifiCorp s diligent
12
Re The Washington Water Power Company, Case No. WWP-98-, Order
No. 28097 (Jut 29, 1999); Re The Washington Water Power Company, Case No. WWP-98-
, Order No. 28155 (Sept. 16, 1999); Re Avista Corporation dba Avista Utilities-Washington
Water Power Division Case No. A VU-00-, Order No. 28366 (May 2, 2000).
13 Re Avista Corporation dba Avista Utilities-Washington Water Power Division Case
No. A VU-00-, Order No. 28420 (Jun. 13 2000).
14 See In the Matter of the Investigation of the Washington Water Power Company and its
Compliance with WWP-Electric Line Extension Tariff Schedule No. 51., Case No. WWP-94-
Order No. 25816 (Nov. 29, 1994) (approving reduced civil penalty of$75 000 for Water Power
41-month violation of its Schedule 51 line extension tariffs).
PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785.3 0020017-00047
STOEL RIVES LLP
ATTORNEYS900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
Page
efforts to ensure compliance with Commission notice requirements in this case and the
circumstances surrounding the Company s first and only violation of the same Rule would
suggest that at most a warning and order for prospective compliance would be the most
reasonable response.
The Company had a Communications Plan in Place and Implemented It.
In general, when PacifiCorp makes a regulatory filing, the Regulation and Corporate
Communications departments work together to develop and implement a communications plan
specific to that filing. (Larson Direct Testimony on Reconsideration, page 2 line 22 - page 3 line
Similarly, those departments worked together to develop the communications plan for
this proceeding designed to comply with regulatory notice requirements and to make available as
much information to customers as possible, consistent with clarity. (Eskelsen Direct Testimony
on Reconsideration, page 3 lines 10-12.) Although not contained in a single document, the
communications plan developed was comprised of the following elements: (1) consultation with
legal counsel concerning requirements for legal notices and bill inserts related to the proceeding
(!d. at page 3 lines 17-19); (2) issuance of a news release concurrent with the initial filing, plus
follow-up contacts with the news media, as needed (Id. at page 3 lines 15-16); (3) posting the
news release on the Utah Power internet web site (Id. at page 4 lines 18-19); (4) making the rate
schedules available for public inspection at local offices (Id. at page 4, lines 19-20); (5) creation
of a communications package for the Company s call centers to use in response to customer
telephone calls (Exhibit No. 35); and (6) direct customer communications with interested parties
both before and after the filing was made (Larson Direct Testimony on Reconsideration, page 4
line 11 - page 5 line 6; Pond Direct Testimony on Reconsideration; Exhibit No. 33).
The Company s testimony and exhibits on reconsideration demonstrate PacifiCorp
implementation of its plan as well as its effectiveness. The Company s news releases were
published on its web site and sent to 14 different news media outlets (newspaper, radio and
10 -PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785.3 0020017-00047
STOEL RIVES LLP
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television) in the Company s Idaho service territory. (Eskelsen Direct Testimony on
Reconsideration, page 5 lines 6-11.Company representatives conducted interviews with news
reporters (Id. at page 5 line 14 - page 6 line 6), and over 20 newspaper articles, editorials, and
letters to the editor were published about the case prior to the public meetings that took place in
May, 2002 (Exhibit No. 32).
The Company also communicated with customer groups about this filing face-to-face.
Before the Application was filed, Doug Larson, Vice President, Regulation, and Glen Pond
Regional Community Manager for the Company s Idaho service territory, met with
representatives of the irrigation class, Commission Staff, and others to discuss and receive
comments about the proposed filing. (Larson Direct Testimony on Reconsideration, page 4 lines
11-19.) The filing also was discussed with the Company s Consumer Advisory GrouplS on two
different occasions---once before and once after the case was filed. (Exhibit No. 33.) In
addition, Mr. Pond and Robert Smead, the Company s Idaho Irrigation Specialist, met on 9
different occasions with various members of the irrigation class16 to discuss the filing and the
implications particular to irrigators. (fd.)
Thus, PacifiCorp s failure to issue bill-stuffer notice is not an indication that the
Company intended to hide or disguise its filing in this case. On the contrary, as demonstrated by
the Company s communications plan and its implementation, the Company took seriously its
responsibility to notify customers about this proceeding. As demonstrated below, the level of
customer involvement in this case from beginning to end is further evidence that the Company
plan was successful and that customers were actually on notice of this proceeding.
IS As Glen Pond testified at the hearing on reconsideration, the Consumer Advisory
Group is composed of a diverse group individuals representing a broad spectrum ofPacifiCorp
customer interests. Tr. 599-603.
16 These customers are also residential customers.
11 -PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-141678S.3 0020017-00047
STOEL RIVES LLP
ATTORNEYS900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
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Customers Were Aware of the Company s Application and Participated in
the Proceeding by way of Intervention, Public Comment and Attendance at
the Public Meetings and Hearing.
The degree to which the public took advantage of the opportunity to participate in the
Commission s decision-making process in this case provides additional support for PacifiCorp
contention that its customers were on actual notice of the issues raised by the Application in this
proceeding. PacifiCorp s residential customers were represented throughout the case not only by
Commission Staff, but also by intervenor Timothy Shurtz, who himself made significant efforts
to ensure that PacifiCorp customers were on notice of the proceeding. Monsanto and the
Irrigators also intervened and actively participated in the case from the outset. In addition, in
response to the notice and press reports regarding the Stipulation, Nu- West petitioned to
intervene late and its petition was granted without opposition by the Company.
Customers also made their views known by way of written comment to the Commission
and by testifying at the public hearings. Included in PacifiCorp s Exhibit No. 28 are the
numerous written comments submitted to the Commission in this case by residential, industrial
and irrigation customers, as well as their legislative representatives. Those comments
demonstrate that customers were well aware of the pending request for recovery of excess power
costs and the other major issues presented by the Company s Application.
Further evidence of customer awareness is the level of attendance at the public hearings
in this case. At those hearings, 18 members of the public testified on the record.
(Exhibit No. 29.) As the Commission knows, more customers attended these hearings than
signed up to testify, including 10 state legislatures (one by letter submission) in Rigby and eight
state legislators (five current and three former) in Preston. The fact that these hearings were well
attended by customers and their legislative representatives further demonstrates that customers
were well aware of the Company s Application.
12 -PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785.3 0020017-00047
STOEL RIVES LLP
ATTORNEYS900 SW FIFTH A VENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
Page
All Issues Relating to the Company s Application and the Rate Change
Resulting from the Stipulation Were Raised and Thoroughly Developed for
Commission Consideration.
Even ifbill-stuffer notice had been provided, no information would have been presented
other than that which was before the Commission at the conclusion of the proceedings in this
case. The interests of each customer class were represented throughout the proceeding, both
formally by way of intervention and informally by way of public comment and protest. The
issues regarding the rate increase were thoroughly explained by Staff and the Company in the
workshops and well aired in the public meetings. In short, by the time the public meetings were
concluded, there was no indication of any issues that could have been productively addressed in
further proceedings.
The Size of the Civil Penalty Imposed is Grossly in Excess of Any Penalty the
Commission Has Ever Before Imposed on a Utility-Despite the Strong Mitigating
Facts in This Case.
As described in detail in the Company s Petition for Reconsideration, the $1 087 720
penalty imposed in this proceeding is unprecedented. The largest civil penalty this Commission
has ever before imposed is $75 000 against Washington Water Power for tariff and statutory
violations lasting 41 months in duration.17 Other civil penalties approved by the Commission
include a $13 000 penalty assessed against Union Pacific Railroad for its failure to comply with a
Commission order18 and a $1 000 penalty agreed to by Consent Agreement against One Call
Communications, Inc. for its violation of a Commission rule.
17 See In the Matter of the Investigation of the Washington Water Power Company and its
Compliance with WWP-Electric Line Extension Tariff Schedule No. 51., Case No. WWP-94-
Order No. 25816 (Nov. 29 , 1994) (approving reduced civil penalty of$75 000 for Water Power
41-month violation of its Schedule 51 line extension tariffs).
18
Re Union Pacific Railroad Company, Case No. UP-RR-90-, Order No. 23773 (Jul. 9
1991).
19 Idaho Public Utilities v. One Call Communications, Inc.Consent Agreement (dated
Jan. 1995).
13 -PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
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Imposition on PacifiCorp of a penalty that exceeds by 1 350 percent the highest penalty
ever approved by this Commission is grossly excessive in light of the circumstances surrounding
the alleged violation-especially when compared to civil penalties imposed previously by the
Commission for violations that are more severe in nature and scope. The record in this case does
not include any evidence of aggravating circumstances; to the contrary, all the evidence is of
mitigating circumstances. If this penalty is allowed to stand, its disproportionate size will invite
the question, what is going on here that does not appear in the record or in Commission
precedent? There is no acceptable answer to this question. The Commission s actions must be
based on substantial evidence in the record and consistent with the Commission s own precedent.
This inexplicably harsh treatment is exactly the type of action the law regards as arbitrary
and capricious and does not permit public agencies to take. Rather, the integrity of government
agencies requires that their actions be bounded by the applicable law, the facts of the particular
case, the precedents they have set, and fair notice of their intention to alter that precedent.
Because the over $1 million penalty assessed in this proceeding is unreasonable and arbitrary in
all these respects, it must be set aside. The Commission s precedent would suggest that at this
stage of the case, when return of the application is no longer appropriate, a warning and order for
prospective compliance with Rule 102 is the only response that is consistent with the facts. If a
penalty is imposed, that penalty should be limited to $2 000, the statutory maximum for a single
rule violation. At most, the Commission s precedent would limit the penalty to the highest
penalty previously imposed for any violation within the Commission s jurisdiction, $75 000.
14 -PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785,30020017-00047
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ATTORNEYS900 SW FIFTH AVENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]
CONCLUSION
WHEREFORE PacifiCorp respectfully asks this Commission to reconsider its
findings in Order No. 29034 that PacifiCorp violated Rule 102 of the Commission s Utility
Customer Information Rules and its assessment of a $20 per customer credit, or a total of
087 720, as a penalty for the alleged violation. In so doing, PacifiCorp requests that the
Commission rescind those findings related to Rule 102 and withdraw the civil penalty imposed
by the order.
DATED: September 26 2002.
Respectfully submitted
~~~
Erinn Kelley-Siel
Of Attorneys for PacifiCorp,
d/b/a Utah Power & Light Company
Page PacifiCorp s Post-hearing Brief on Reconsideration of Order No. 29034
Portlnd3-1416785.3 0020017-00047
STOEL RIVES LLP
ATTORNEYS900 SW FIFTH A VENUE, SUITE 2600 PORTLAND, OREGON 97204-1268Telephone [phone]