HomeMy WebLinkAbout20120404Answer to Petitions.pdfRECEIVED POWER® An IDACORP Company
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LISA D NORDSTROM IDAHO 4J- Lead Counsel II rOM4lSS InordstromtidahoDower.com
April 4, 2012
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83702
Re: Case No. IPC-E-08-22
IN THE MATTER OF THE APPLICATION OF IDAHO POWER COMPANY
FOR AUTHORITY TO MODIFY ITS RULE H LINE EXTENSION TARIFF
RELATED TO NEW SERVICE A TTACHMENTS AND DISTRIBUTION LINE
INSTALLATIONS
Dear Ms. Jewell:
Enclosed for filing are an original and seven (7) copies of Idaho Power Company's
Answer to Petitions for Reconsideration filed in the above matter.
Very truly yours,
Lisa D. Nordstrom
LDN:csb
Enclosures
1221 W. Idaho St. (83702)
P.O. Box 70
Boise, ID 83707
LISA D. NORDSTROM (ISB No. 5733)
PATRICK A. HARRINGTON (ISB No. 3423)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: (208) 388-5825
Facsimile: (208) 388-6936
Inordstrom(idahopower.com
pharrinqtoncidahopower.com
RECEIVED
2012 APR -t PM t: 4 8
P Li C
TU IL 3 CCMMSSO
Attorneys for Idaho Power Company
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION )
OF IDAHO POWER COMPANY FOR ) CASE NO. IPC-E-08-22
AUTHORITY TO MODIFY ITS RULE H )
LINE EXTENSION TARIFF RELATED TO ) IDAHO POWER COMPANY'S
NEW SERVICE ATTACHMENTS AND ) ANSWER TO PETITIONS FOR
DISTRIBUTION LINE INSTALLATIONS. ) RECONSIDERATION
Pursuant to the Idaho Public Utilities Commission's ("Commission" or "IPUC") RP
331.05, Idaho Power Company ("Idaho Power" or "Company"), by and through its
attorneys of record, hereby submits its Answer to the Petitions for Reconsideration filed
by the Ada County Highway District ("ACHD") and Build Idaho Inc. ("Build Idaho") in this
case on March 28, 2012. The Petitions for Reconsideration were filed in response to
the Commission's Order No. 32476, which approved with modifications Idaho Power's
revised Rule H, Section 10, filed with the Commission on January 11, 2012.
I. BACKGROUND
Following is a brief summary of the proceedings to date in this matter.
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -1
Commission Order No. 30853. On November 30, 2009, the Commission issued
Order No. 30853 approving the addition of Sections 10 and 11 to Idaho Power's Rule H
line extension tariff. Sections 10 and 11 set forth certain rules authorizing Idaho Power
to recover the cost of distribution line relocations from public road rights-of-way from
private beneficiaries.
ACHD v. IPUC. ACHD objected to Sections 10 and 11 and appealed the
Commission's decision in Order No. 30853 to the Idaho Supreme Court, claiming that
Sections 10 and 11 exceeded the Commission's statutory authority. The Supreme Court
issued its decision in Ada County Highway Dist. v. Idaho Public Utilities Commission,
253 P.3d 675 (Idaho 2011) ("ACHD v. IPUC") on May 25, 2011, holding that Sections 10
and 11 exceeded the Commission's authority under Idaho's public utility statutes.
Amended Section 10. In response to the Supreme Court's decision in ACHD v.
IPUC, Idaho Power filed its Amended Motion to Accept Conforming Rule H Section 10
Tariff with the Commission on January 11, 2012 ("Conforming Motion"). The Conforming
Motion proposed to replace Rule H Sections 10 and 11, which the Supreme Court found
to be deficient in ACHD v. IPUC, with a new amended Rule H Section 10 ("Amended
Section 10"). Idaho Power's Conforming Motion was made under Idaho Code § 61-629,
which provides that if an order of the Commission is set aside in whole or in part by the
Supreme Court, any party to the proceeding may file a motion with the Commission to
amend the order appealed from to meet the objections of the Court.
Idaho Power consulted with ACHD over the course of several months in an
attempt to reach an agreement on the wording of Amended Section 10. As described in
the Conforming Motion, Idaho Power accepted ACHD's revisions to Idaho Power's
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -2
proposed wording of the first two paragraphs of Amended Section 10, but the parties
could not agree on the wording of the final sentence of the third paragraph of Amended
Section 10. Idaho Power proceeded with its filing of the Conforming Motion, including
the language proposed by ACHD.
Responses to Amended Section 10. In response to Idaho Power's Conforming
Motion, ACHD filed its Memorandum in Opposition on January 25, 2012. ACHD's
Memorandum in Opposition objected to all three paragraphs of Idaho Power's Amended
Section 10, asserting that the language of Amended Section 10 "expressly contradicts
the Idaho Supreme Court's opinion" in ACHD v. IPUC. Idaho Power then filed its Answer
to ACHD's Memorandum in Opposition on February 10, 2012, addressing the arguments
set forth in ACHD's Memorandum in Opposition and maintaining that Amended Section
10 conformed to the Supreme Court's decision in ACHD V. IPUC, notwithstanding
ACHD's arguments.
Commission Order No. 32476. The Commission issued its Order No. 32476 in
this case on March 7, 2012, approving Idaho Power's Amended Section 10 with certain
modifications ("Revised Section 10").
Petitions for Reconsideration. ACHD and Build Idaho' filed Petitions for
Reconsideration of the Commission's Order No. 32476 on March 28, 2012. The
Petitions for Reconsideration maintain that Revised Section 10 does not conform to
ACHD v. IPUC and thus that the Commission should reconsider its decision in Order No.
32476.
Build Idaho has not petitioned to intervene and is not a party, although it has petitioned for
reconsideration.
2 Neither ACHD nor Build Idaho served Idaho Power with its Petition for Reconsideration as
required by RP 63.01.
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -3
II. ARGUMENT
ACHD objects to all three paragraphs of Revised Section 10 approved in Order
No. 32476 in the ACHD Petition for Reconsideration ("ACHD Petition"), while Build Idaho
objects only to the third paragraph of Revised Section 10 in its Petition for
Reconsideration ("Build Idaho Petition"). The following analysis addresses each
paragraph of Revised Section 10 in order.
Section 10, Paragraph 1. The first paragraph of Revised Section 10 reads as
follows:
The Company often locates its distribution facilities within
state and local public road rights-of-way under authority of
Idaho Code § 62-705 (for locations outside Idaho city limits)
and the Company's city franchise agreements (for locations
within Idaho city limits). When the Company is notified of a
road improvement project pursuant to Idaho Code § 40-210,
the Company will meet with the Public Road Agency as
provided in Idaho Code § 40-210.
The ACFID Petition argues on page ten that the second sentence of this
paragraph "mandates at least three things: (1) that ACHD provide notice to Idaho Power
of road improvement projects; (2) that Idaho Power meet with ACHD; and (3) that ACHD
meet with Idaho Power." If nothing else, this strained argument highlights ACHD's
determined effort throughout this proceeding to find adverse impacts of Section 10 on
Public Road Agencies where none exist. Nothing in the second sentence directs the
Public Road Agency take any action whatsoever. The sentence is directed exclusively at
Idaho Power and simply instructs the Company to meet with Public Road Agencies on
road improvement projects, as the Company is expressly authorized to do under Idaho
Code § 40-210. The intent of the second sentence is so clear and innocuous, and its
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -4
reference to Public Road Agencies so inconsequential, that, in Idaho Power's view, no
reconsideration of the first paragraph of Revised Section 10 is necessary or warranted.
Section 10, Paragraph 2. The second paragraph of Revised Section 10 reads as
follows:
If a Public Road Agency determines that the Company's
facilities incommode the public use of any road, highway or
street, the Public Road Agency can require the Company to
relocate or remove the facilities. If a Public Road Agency
determines that the Company's facilities must be relocated
or removed because they incommode the public use of the
road, highway or street, the Company will relocate its
distribution facilities from or within the public road rights-of-
way and the Company will bear the costs of such relocation.
ACHD objects to this paragraph in the ACHD Petition, stating on page 12 that:
Regardless of Idaho Power's intent, the language in the
Proposed Amended Rule H indicates that the only
circumstance under which a Public Road Agency "can
require" utility relocation is "[i]f a Public Road Agency
determines that the Company's facilities must be relocated
or removed because they incommode the public use [of the
right-of-way]." (Emphasis added.)
Idaho Power disagrees with this assertion. Nothing in the second paragraph of
Revised Section 10 states that the paragraph describes the "only" situation under which
Idaho Power is required to relocate its facilities at the request of a Public Road Agency.
As indicated on page six of Idaho Power's Answer to ACHD's Memorandum in
Opposition dated February 10, 2012, the second paragraph of Revised Section 10 is not
intended to provide an exhaustive list of all conditions under which Idaho Power is to
relocate or remove its facilities from the public road right-of-way. It simply states by far
the most common reason, for descriptive purposes, where the Company's facilities
"incommode the public use." It is also worth reiterating that "incommode the public use"
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -5
is not a mere term of convenience; it is the statutory standard for the location electric
utility facilities in county road rights-of-way in Idaho. More specifically, Idaho Code §
62-705 provides that electric utilities may locate facilities in public road rights-of-way
within Idaho counties "in such manner and at such places as not to incommode the
public use of the road, highway, street or railroad." Reciting this statutory standard in
the second paragraph of Section 10 is entirely appropriate and consistent with Idaho
Power's actual relocation practices.
Idaho Power continues to believe that the second paragraph of Section 10
provides important background information for the reader's understanding of the
Company's relocation practices within public road rights-of-way in Idaho. Idaho Power
further believes that the second paragraph has no impact whatsoever on the rights of
ACHD or any other Public Road Agency with respect to the relocation of Idaho Power
facilities from public road rights-of-way. Accordingly, the Company asserts that no
reconsideration of the second paragraph by the Commission is necessary or warranted.
Section 10, Paragraph 3. The third paragraph of Revised Section 10 reads as
follows:
If one or more Private Beneficiaries has, directly or indirectly
through a Public Road Agency, requested that the
Company's facilities be relocated or removed, the Company
will use reasonable efforts to recover that portion of the total
Relocation or removal costs attributable to the request from
the Private Beneficiaries. If the Private Beneficiaries dispute
the Company's calculation of the Private Beneficiaries' cost
responsibility, either the Company or the affected Private
Beneficiaries may initiate a proceeding to have the
Commission establish the reasonableness of the Company's
calculation of the Relocation or removal cost responsibility as
between the Company and the Private Beneficiaries.
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -6
Both ACHD and Build Idaho object to the phrase "directly or indirectly through a
Public Road Agency" in this paragraph. The Petitions for Reconsideration of ACHD and
Build Idaho as to paragraph three mirror each other and references to ACHD herein are
equally applicable to Build Idaho with respect to paragraph three. ACHD indicates that
Idaho Power and the Commission could simply treat any relocation request by a Public
Road Agency as "an 'indirect' request for service from a private party." This objection
strains credibility when you consider that both Idaho Power and the Commission must
base their actions on substantial, competent evidence. See Citizen's Utility Co. v. Idaho
Pub. Utilities Comm'n, 112 Idaho 1061, 1063, 739 P.2d 360, 362 (Idaho 1987).
However, in order to avoid any misunderstanding related to the third paragraph, the
Company would not object if the Commission modified Revised Section 10 to delete the
phrase "directly or indirectly through a Public Road Agency" so that the Section 10 would
read as follows:
If one or more Private Beneficiaries has requested that the
Company's facilities be relocated or removed, the Company
will use reasonable efforts to recover that portion of the total
Relocation or removal costs attributable to the request from
the Private Beneficiaries. If the Private Beneficiaries dispute
the Company's calculation of the Private Beneficiaries' cost
responsibility, either the Company or the affected Private
Beneficiaries may initiate a proceeding to have the
Commission establish the reasonableness of the Company's
calculation of the Relocation or removal cost responsibility
as between the Company and the Private Beneficiaries.
This language would square precisely with the Supreme Court's finding in ACHD
v. IPUC that "IPUC certainly has the authority to determine the costs that Company can
charge a private person who requests services from Company." ACHD v. IPUC, 253 P.
3d at 682.
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -7
Idaho Power also notes that ACHD, and now Build Idaho, refuse to recognize the
difference in jurisdictional authority over cost causation and cost recovery. A myriad of
authorities, including public road agencies, can and do impose costs on Idaho Power as
the utility that provides electrical service. These various public authorities do not
determine how Idaho Power will recover the costs that are imposed to provide for the
service. The Idaho Legislature has specifically delegated the authority to investigate and
fix rates and charges for utility services (which include relocation of facilities) to the
Commission in Idaho Code § 61-503. Complaints concerning the reasonableness of
utility charges and the cost recovery thereof are subject to the Commission's jurisdiction,
with review by the Idaho Supreme Court upon exhaustion of the parties' administrative
remedies. See Idaho Code §§ 61-612 and 61-621 and Grindstone Butte Mutual Canal
Co. v. Idaho Pub Utilities Comm'n, 102 Idaho 175, 178, 627 P.2d 804, 807 (Idaho 1981).
ACHD has noted in the ACHD Petition that Rule H also addresses relocations in
Section 6. However, Idaho Power believes that relocations from road rights-of-way are
of particular importance because of the coordination that is required with Public Road
Agencies, as referenced in Revised Section 10. For that reason, Idaho Power believes it
is appropriate to address road right-of-way relocations separately in Revised Section 10,
including the expanded background explanation provided in that Section.
III. CONCLUSION
For the reasons described herein, Idaho Power maintains that Revised Section
10 is in conformance with the Supreme Court's decision in ACHD v. IPUC. However,
Idaho Power has no objection, if the Commission finds it to be in the public interest, that
the changes to Section 10 offered by the Company be approved. This would resolve any
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -8
concerns, real or imagined, raised in ACHD's and Build Idaho's Petitions for
Reconsideration. If the Commission does not believe the changes proposed by Idaho
Power are necessary, Commission Order No. 32476 should be affirmed.
Respectfully submitted this 4th day of April 2012.
(y
LISA D. NORDS1'ROM
Attorney for Idaho-Power Company
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 4th day of April 2012 I served a true and correct
copy of IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR
RECONSIDERATION upon the following named parties by the method indicated
below, and addressed to the following:
Commission Staff
Weldon B. Stutzman
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington (83702)
P.O. Box 83720
Boise, Idaho 83720-0074
Building Contractors Association of
Southwestern Idaho
Michael C. Creamer
GIVENS PURSLEY, LLP
601 West Bannock Street
P.O. Box 2720
Boise, Idaho 83701-2720
City of Nampa AND
Association of Canyon County Highway
Districts
Matthew A. Johnson
Davis F. VanderVelde
WHITE PETERSON GIGRAY
ROSSMAN NYE & NICHOLS, P.A.
5700 East Franklin Road, Suite 200
Nampa, Idaho 83687-7901
The Kroger Co.
Michael L. Kurtz
Kurt J. Boehm
BOEHM, KURTZ & LOWRY
36 East Seventh Street, Suite 1510
Cincinnati, Ohio 45202
X Hand Delivered
U.S. Mail
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X Email weldon .stutzmanpuc. idaho.pov
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X Email mcc(ciivenspursley.com
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X Email mjohnson(whitepeterson.com
dvanderveldecwhitepeterson.com
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Kevin Higgins Hand Delivered
Energy Strategies, LLC X U.S. Mail
215 South State Street, Suite 200 Overnight Mail
Salt Lake City, Utah 84111 FAX
X Email khiaains(äeneravstrat.com
IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -10
Ada County Highway District
Scott D. Spears
Ada County Highway District
3775 Adams Street
Garden City, Idaho 83714
Merlyn W. Clark
D. John Ashby
HAWLEY TROXELL ENNIS &
HAWLEY, LLP
877 Main Street, Suite 1000
P.O. Box 1617
Boise, Idaho 83701-1617
Build Idaho Inc.
J. Frederick Mack
HOLLAND & HART LLP
U.S. Bank Plaza
101 South Capitol Boulevard, Suite 1400
P.O. Box 2527
Boise, Idaho 83701-2527
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i ash bvhawlevtroxelI .com
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~7sa b . Nordstrom
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IDAHO POWER COMPANY'S ANSWER TO PETITIONS FOR RECONSIDERATION -11