20120712reconsideration_order_no_32592.pdf

Office ofthe Secretary
Service Date
July 12,2012
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 )
NEW SERVICE ATTACHMENTS AND )ORDER NO.32592
DISTRIBUTION LINE INSTALLATIONS.)
This is a Final Order on Reconsideration in this case in which Idaho Power Company
initially proposed to revise its Rule H tariff in October 2008.The Rule H tariff provides terms
for Idaho Power to relocate its electric service facilities,and states that parties requesting those
relocation services will pay the costs.The Company proposed to add Sections 10 and 11 to the
tariff to clarify cost responsibilities when the Company relocates its facilities placed in public
roadways.The Commission approved the Company’s revisions to Sections 10 and 11 of its tariff
in Order No.30853 issued July 1,2009.After further review on reconsideration,the
Commission issued a Final Order on Reconsideration on November 30,2009.See Order No.
30955.The Ada County Highway District (ACHD)appealed the Order to the idaho Supreme
Court and,in a decision entered May 25,2011,the Court concluded that the tariff does not
infringe on ACHD’s jurisdiction over public rightsof-way.Ada County Highway District v,
Idaho PUC and Idaho Power Company,151 Idaho 1,253 P.3d 675 (2011).The Court also
determined,however,that certain provisions of Sections 10 and Ii exceeded the authority of the
Commission,and set aside those sections of the tariff.
On July 14,2011,Idaho Power filed a Motion to Accept its conforming Rule H
Section 10 tariff,correcting the errors identified by the Supreme Court.Discussions between
Idaho Power and ACHD followed,and the Company proposed changes to the new Section 10 as
a result of those discussions.Idaho Power filed an Amended Motion on January 11,2012,
asking the Commission to accept its revised Section 10.ACHD filed a Memorandum in
Opposition to the Company’s Motion on January 26,2012,and the Company filed an answer to
ACHD’s Memorandum on February 10,2012.
The Commission issued final Order No.32476 on March 7,2012,reviewing the
Idaho Supreme Court’s decision,the revisions proposed by idaho Power,and the objections filed
by ACHD.The Commission reviewed all of ACKD’s arguments it presented to the Court that
ORDER NO.32592 1
Idaho Power’s tariff infringes on the Company’s authority or jurisdiction.The Court rejected all
of ACHD’s arguments,and concluded that ‘ACHD has not pointed to any provision in Section
10 that infringes upon ACHD’s power or jurisdiction.”ACHD v.Idaho PUC.253 P.3d at 681.
The Commission next reviewed the Court’s conclusions that Sections 10 and 11
included terms that exceeded the Commission’s authority.The Court affirmed that the
Commission “certainly has the authority to determine the costs that company can charge a
private person who requests [relocation]services from company,”but held that Section 10 of the
tariff went beyond that by potentially requiring a third party to pay for services that the party did
not request from Idaho Power.ACHD v.Idaho PUC,253 P.3d at 682-83.The Court also
concluded that Section 11 of the tariff included a term that exceeds the Commission’s authority.
A sentence in Section 11 stated that “the Company and other parties in the planning process will
use their best efforts to find ways to eliminate the cost of relocating utility facilities,or if
elimination is not feasible,to minimize the relocation cost to the maximum extent reasonably
possible.”The reference to “other parties”could include ACHD or other entities not subject to
Commission regulation,and because the Commission cannot direct other parties to use their best
efforts to minimize relocation costs,the Court set aside Section 11.ACHD v.Idaho PUC,253
P.3d at 683.The Commission summarized the two specific problems with the tariff identified by
the Court as “Section 10 impermissibly authorized the Commission to require a third party to pay
for relocation services not requested by the party,and Section 11 too broadly directed parties not
regulated by the Commission to comply with the statutory obligation to plan road projects so as
to minimize the relocation of utility facilities.”Order No.32476.p.6.
Petitions for Reconsideration to Order No.32476 were filed March 28,2012,by
ACHD and Build Idaho,Inc.Before determining whether to grant reconsideration,the
Commission convened a hearing for oral argument on April 19,2012.The Commission
subsequently on April 24,2012,granted reconsideration “solely to provide the parties an
opportunity to develop the record regarding paragraph 3 of Section 10,more specifically,to
clarify in the record whether a third party may request relocation of Idaho Power’s facilities that
are located in a public roadway from Idaho Power.”Order No.32532,p.2.The parties were
provided an opportunity to file written briefs on May 18,2012,and responsive briefs on June 15,
2012.Idaho Power,ACHD and Build Idaho,Inc.all filed briefs on May 18,and Idaho Power
and ACHD filed responsive briefs.
ORDER NO.32592 2
Correcting the Reference to “Other Parties”
Idaho Power proposed changes to its tariff to respond to the specific objections of the
Idaho Supreme Court,and the Commission approved those changes in Order No.32476.To
correct the problem in Section 11 where “other parties”might have been required to meet with
road agencies pursuant to Idaho Code §40-210,Idaho Power revised the section to remove the
reference to other parties.The Commission approved the change,now found in the first
paragraph of Section 10,because “the second sentence in the first paragraph appropriately
addresses the objection of the Supreme Court be removing the reference to ‘other parties.”
Order No.32476,p.7.The sentence now states:“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.”ACFID on reconsideration objects to
the approved change to the tariff to remove a reference to other parties that are required to meet
pursuant to Idaho Code §40-210.ACHD contends this sentence “mandates at least three things:
(1)that ACI-ID provide notice to Idaho Power of road improvement projects;(2)that Idaho
Power meet with ACHD;and (3)that ACHD meet with Idaho Power.”ACHD Brief in
Response to Order No.32532,p.13.
When it enacted Section 40-2 10 in 2009,the Legislature recognized that utility
facilities and services could not reach or economically serve the residents of Idaho without
making use of public highways and their associated rights-of-way.idaho Code §40-210(1).
The Legislature stated its specific intent “that the public highway agencies and utilities engage in
proactive,cooperative coordination of highway projects through a process that will attempt to
effectively minimize costs,limit the disruption of utility services,and limit or reduce the need
for present or future relocation of such utility facilities.”Id.To further the stated legislative
intent,Section 40-210 provides that highway agencies engaged in a project that may require the
relocation of utility facilities “shall permit the affected utility to participate in project
development meetings.”Idaho Code §40-210(2).Further,the section requires public highway
agencies to,“upon giving written notice of not less than thirty (30)days to the affected utility,
meet with the utility for the purpose of allowing the utility to review plans,understand the goals,
objectives and funding sources for the proposed project,provide and discuss recommendations to
the public highway agency that would reasonably eliminate or minimize utility relocation costs,
limit the disruption of utility services,eliminate or reduce the need for present or future utility
ORDER NO.32592 3
facility relocation,and provide reasonable schedules to enable coordination of the highway
project construction and such utility facility relocation as may be necessary.”Id.Paragraph 3 of
Section 40-210 states the consequence to a utility that fails to respond or participate in meetings.
In that event,“such failure to respond or participate in such meetings shall not in any way affect
the ability of the public highway agencies to proceed with the project design or construction.”
idaho Code §40-210(3).
We are not persuaded Order No.32476 fails to properly address the deficiency
identified by the Supreme Court.First,as we noted in Order No.32476,the Court set aside
Section 11 containing the similar sentence only because it included the reference to “other
parties,”implying an overly broad directive to unregulated entities to comply with Idaho Code §
40-2 10.There is no indication in the Court’s decision that the sentence in the tariff was flawed
in any other way,nor does ACHD assert that the Supreme Court’s objection was anything other
than to the specific reference to “other parties.”Nothing in the Court’s decision supports
ACHD’s assertion that removing the reference to “other parties”does not adequately address the
Court’s decision.
Second,the Commission has a legitimate and proper concern that Idaho Power avail
itself of the opportunity to meet with road agencies when receiving notices pursuant to Idaho
Code §40-210.If Idaho Power fails to meet with road agencies when given the opportunity,the
agencies will proceed with the project design and construction.Idaho Power will have given up
an opportunity to provide input regarding ways to eliminate or minimize utility relocation costs
“to the maximum extent reasonably possible,”thereby frustrating the Legislature’s intent.Idaho
Code §40-210(2).The sentence makes it clear the Commission expects Idaho Power to
participate in meetings when given the opportunity.
Third,the sentence cannot reasonably be read to direct ACHD to do anything.It
simply directs Idaho Power,should ACHD decide to comply with the statute and provide notice
to the Company,to respond to the notice and attend meetings when given the opportunity.The
only imperative in the sentence is the phrase “the Company will meet,”and it applies only to
Idaho Power and only in the event the Company receives notice of a road project.The sentence
does not purport to tell a road agency it must comply with Idaho Code §40-210.Should ACHD
choose not to comply with the statute,no consequence to ACHD is stated or implied by the
sentence.The Commission concluded in Order No.32476 that the revised sentence
ORDER NO.32592 4
appropriately addresses the objection of the Supreme Court by removing the reference to “other
parties,”and we are not persuaded by the arguments on reconsideration that this conclusion is in
error.
Correcting Chargesfor Services Not Requested
The Commission also approved Idaho Power’s response to the Court’s objection that
the old tariff might have authorized the Commission to require a third party to pay for services
that the party did not request from Idaho Power.“In response to the Court’s concern that the
earlier tariff allowed a cost determination against a party for services not requested,the tariff as
revised applies only where a third party requests relocation services.”Order No.32476,p.9.
The Commission concluded that Idaho Power’s tariff revisions properly address the objections of
the Supreme Court.Order No.32476,p.10.
It is established with the briefs and affidavits filed on reconsideration that Idaho
Power from time-to-time may receive requests from private developers to relocate facilities in
public roadways.Idaho Power filed an affidavit from a Project Design Leader identifying 22
projects “in recent years where Idaho Power has relocated facilities located in the road right-of-
way at the request and expense of a third party.”Affidavit of David R.Lowrey,pp.1-2.In each
case,the third party made its relocation request and relocation payment directly to Idaho Power.
Id.This clarification confirms that it is appropriate for the Company’s tariff to address cost
recovery in those circumstances,but it does not necessitate further revisions to the Rule H tariff.
As we noted in Order No.32476,“the tariff as revised applies only where a third party requests
relocation services.”Order No.32476,p.9.
Consistent with this objective,however,the Commission does approve Idaho
Power’s suggestion to remove a phrase from the first sentence of the third paragraph of Section
10.The approved tariff includes the following sentence:“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.”In
Idaho Power’s Answer to Petitions for Reconsideration,and again in its reply to briefs on
reconsideration,the Company proposed to remove the phrase “directly or indirectly through a
Public Road Agency”from the sentence.This change is appropriate because,as we stated in
Order No.32476,“the focus properly is on a request made by a third party.”Order No.32476,
ORDER NO.32592 5
p.10.Removing the phrase should leave little doubt that the tariff addresses requests for
relocation services made by a private third party.With the phrase removed,the first sentence of
the third paragraph of Section 10 will state:“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.”Idaho Power is directed to file new tariff sheets with this change to
Section 10.
The Commission has carefully considered the arguments raised by ACHD and Build
Idaho,Inc.on reconsideration and is not persuaded that Order No.32476 is in need of correction
or modification to comply with the instructions of the Idaho Supreme Court.The Commission
does approve removing the phrase “directly or indirectly through a Public Road Agency”from
the first sentence,third paragraph of Section 10.
ORDER
IT IS HEREBY ORDERED that Idaho Power is directed to file new tariff sheets with
the change to the first sentence of the third paragraph of Section 10 to state:“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.”
THIS IS A FII”JAL ORDER ON RECONSIDERATION.Any party aggrieved by this
Order or other final or interlocutory Orders previously issued in this Case No.IPC-E-08-22 may
appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and the Idaho
Appellate Rules.See Idaho Code §6 1-627.
ORDER NO.32592 6
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho this /2 ‘
day of July 2012.
N cs
MACK A.REDFORD,COMMISSIONER
LZ6 /iA
MARSHA H.SMITH,COMMISSIONER
ATTEST:
‘1 I I
[A(L
Jean D.Jeweli
Cimmission Secretary
bls/O:IPC-E-08-22 ws3 Final on Remand Reconsideration
PA PRESIDENT
ORDER NO.32592 7