20080229order_no_30510.pdf

Office of the Secretary
Service Date
February 29, 2008
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR IPUC CASE NO. IPC-06-
APPROVAL OF AN AGREEMENT
BETWEEN A VIM OR, LLC AND IDAHO
POWER TO PROVIDE ELECTRIC
TRANSMISSION AND SUBSTATION
FACILITIES TO THE AVIMORMULTI-USE
DEVELOPMENT
VIMOR, LLC
SUPREME COURT
Appellant,DOCKET NO. 34573
vs.
IDAHO POWER COMPANY IPUC ORDER NO. 30510
Respondent,
and
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent on Appeal.
This Commission docket was opened on September 27, 2006, when Idaho Power
Company filed an Application requesting that the Commission approve a Special Facilities
Agreement (SFA) between Idaho Power and Avimor, LLC.The SF provides for the
construction of transmission and substation facilities for A vimor s planned development located
in Ada County, north of Boise. Pursuant to the SFA, Avimor would advance $4 300 000 to
Idaho Power to build the facilities to serve the project, and Avimor would be eligible to receive
refunds of the advance for (a) a period often years; (b) until 685 permanent residential customers
had been connected to the facilities; or (c) until the metered demand connecting to the facilities
met or exceeded 6 850 kW, whichever occurred first. As filed, the SF A provided a refund
amount of $4 300 per residential customer connecting to the facilities. On May 24, 2007, the
Commission issued final Order No. 30322 denying approval of the SF A as filed. The
Commission did not approve the SF A as filed, but stated it would approve an SF A that revised
IPUC ORDER NO. 30510
the refund amount to $1 000 for each residential customer connecting to the facilities. Order No.
30322 at 6-7. Evidence to support a $1 000 refund amount was provided by Staff in its written
comments filed December 15, 2006.
On June 14, 2007, A vimor filed a Petition for Reconsideration. As part of its
Petition, A vimor submitted an affidavit stating that information filed by Idaho Power in its
pending rate case, Case No. IPC-07-, indicates the amount the Company invested for
residential transmission and distribution facilities during 2005-2007 appears to be approximately
100 per customer. If a higher refund amount were not approved, A vimor asked the
Commission to approve $1 100 for each refund per residential connection in an amended SF
On reconsideration, the Commission granted A vimor' s request for clarification to
allow it to receive periodic refunds of the advance based not only on the number of residential
connections to the facilities, but also upon the kva ratings of the distribution transformers serving
non-residential connections. See Order No. 30396 at 7. The Commission denied a higher refund
amount. The Commission did not approve a $1 100 per customer refund amount because the
calculation is based on untested data contained in (Idaho Power s rate case) pleading." Order
No. 30396 at 14. The Commission found the $1 100 calculation to be "premature and far less
reliable than the Staffs ($1 000) calculation based upon actual and final rate case data.Id.
On September 14, 2007 , Avimor filed a Notice of Appeal to the Idaho Supreme
Court from the Commission s final Order Nos. 30322 and 30396. Before proceeding with the
appeal, however, Avimor, Idaho Power and Staff negotiated a Stipulation to resolve all issues on
appeal. The Stipulation states an amount for refund of the advance to A vimor based on the
outcome ofIdaho Power s rate case, Case No. IPC-07-08. If the Commission s final Order in
the rate case establishes that Idaho Power invested more than $1 000 per residential customer for
distribution and transmission facilities during 2005-2007, the Stipulation provides that Avimor
may amend the SF A to obtain the higher amount in refunds to recover its advance. If the
Commission Order establishes an amount lower than $1 000, the SF A would retain that amount
for refunds as previously approved by the Commission. Finally, ifthe Commission s final Order
is silent on the average residential customer investment amount for transmission and distribution
facilities during 2005-2007, the Stipulation provides that A vimor can amend the SF A for a
refund amount of $1 ,100, the amount it had calculated from data contained in the rate case.
IPUC ORDER NO. 30510
The Stipulation along with A vimor' s Motion for Approval of the Stipulation was
filed on January 9, 2008. The Motion requests the Commission approve the Stipulation pursuant
to Commission Rule of Procedure 274. The Stipulation itself references both Rule 274 and Rule
354 as authority for Commission approval of the Stipulation. Rule 354 directs the Commission
when considering settlement of an appeal, and thus is the correct rule here. Both rules, however
authorize the Commission to "accept settlement of essentially private disputes that have no
significant implications for regulatory law or policy or for other utilities or customers summarily
upon the written request of the affected parties." IDAPA 31.01.01.354. See also IDAPA
31.01.01.274.
A significant shortcoming in the Stipulation is that it could change the refund amount
in the SF A without appropriate supporting evidence in the record in this case. The Commission
previously rejected a refund amount of $1 100 because at no point in the reconsideration process
was evidence to support it placed in the record. Commission Rule of Procedure 331 requires a
petitioner asking for reconsideration to state "the nature and quantity of evidence or argument the
petitioner will offer if reconsideration is granted." In its Petition for Reconsideration, Avimor
did not ask the Commission to reopen the record to allow additional evidence, and instead asked
only that reconsideration be granted "allowing the Company to file a brief with the Commission
in support of its arguments as stated above.Petition for Reconsideration at 3. Avimor
Petition did indicate that new information was provided to A vimor "in the last few days as a
result of the filing of Idaho Power Company s new rate case " but the Petition did not request
that new information be made part of the record in this case.
The Commission granted Avimor s Petition and gave the Company until June 29
2007 to file its brief, as the Company requested. The Commission also stated that
reconsideration shall be based upon Avimor s written brief and the record in this matter.
Order No. 30372 at 2. This is a clear statement that new evidence would not be admitted and
considered on reconsideration.
Avimor filed its brief on June 29, 2007, and included a section on new information
provided to A vimor as a result of the filing of Idaho Power s rate case, specifically "an updated
average cost figure for transmission and distribution substation equipment per customer.
Avimor s Memorandum in Support of Petition for Reconsideration at 14. An affidavit of a
certified public accountant was filed with the memorandum, stating in pertinent part that, based
IPUC ORDER NO. 30510
on information in Idaho Power s rate case
, "
it appears that the average cost per Customer for
transmission and distribution between 2005 to 2007 is $1 100.00." No motion was made to open
the record in this case for the admission of new evidence.
The Commission proceeded on reconsideration as requested and issued Order No.
30396 based on Avimor s memorandum and the record in the case. Regarding Avimor
proffered new information from Idaho Power s rate case, we noted that the "data has not been
subject to examination by the parties much less been the subject of a final Commission Order.
Accordingly, the Commission characterized the new information as "speculative " not having
been "subject to the requisite scrutiny for competent evidence." Order No. 30396 at 14 citing
Weeks v. Eastern Idaho Health Services 143 Idaho 834, 153 P.3d 1180, 1184 (2007). Thus, the
new information was never made part of the record in this case.
The Stipulation suffers the same infirmity as did the new information A vimor asked
the Commission to consider on reconsideration. The Stipulation would change the
Commission s determination of the proper refund amount based on evidence in a separate case
not made part of the record in this case. It is true the Commission may take official notice of its
own Orders, but the final Order in Case No. IPC-07-08 does not discuss the per customer
average investment for transmission and substation facilities. See IDAPA 31.01.01.263. Indeed
the Stipulation anticipates the Commission s Order in that case will not address the average per
customer investment for distribution and transmission facilities, and allows for a change in
Avimor s refund amount in that event. Stipulation at 6.
The Commission made a decision regarding the proper refund amount based on the
information available to it in the record. The Stipulation would change the refund amount based
on information not made part of the record, and perhaps not even fully considered in the record
in a separate case. In order to accept the Stipulation, the Commission would have to change the
refund amount without substantial, competent evidence in this case to support the new refund
amount.Accordingly, we decline to approve the Stipulation for Settlement of Appeal.
ORDER
IT IS HEREBY ORDERED that the Stipulation for Settlement of Appeal filed
January 9, 2008 is not approved by the Commission.
IPUC ORDER NO. 30510
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
~?j-I..
day of February 2008.
rj.
MARSHA H. SMITH, COMMISSIONER
. .
ATTEST:
i!:!
fj
iff D. Jewell
C mmission Secretary
bls/O:IPC-06-23 34573 ws
IPUC ORDER NO. 30510