20100525BCA Brief.pdf

.sup--c -IO-of
RECEIVED
IN THE SUPREME COURT OF THE STATE OF IDAHO 2010 HAY 25 AH 8: 10
IDAHO PUBLIC
UTILITIES COMMISSION¡
mE BUILDING CONTRACTORS
ASSOCIATION OF SOUTHSTERN IDAHO,
Appellant,
v.Docket No. 37293-2010
. . IDAHO PUBLIC UTILITES COMMISSION, and
IPARO POWER COMPAN,
Respondents. .
APPELLAN'S BRIEF
Appeal from the Idaho Public Utilities Commission
Commissioner Marsha H. Smith, Presiding
Creamer, ISB4030
Lawrence, ISB 7288
PURSLEYLLP
Street
Lisa D. Nordstrom
Baron 1. Kline
Idaho Power Company
1221 W. Idaho S1.
POBox 70
Boise,ID 83707-0070
Attorneys for Respondent
Idaho Power Company
Lawrence G.Wasden
Attorney General
Statehouse
PO Box 83720
Boise, ID 83702-00 10
Weldon Stutzan
Krstine A. Sasser
Deputy Attorneys General
Idaho Public Utilties
Commission
472 W. Washington
PO Box 83720
Boise,ID 83720-0074
Attorneys for Respondent
Idaho Public Utilties
Commission
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TABLE OF CONTENTS
I. STATEMENT OF THE CASE............................................................................................... 1
A. Natue of the cae.... ...................................................................................... ...................... 1
B. Coure of procengs below............... .......... ........ ....................................... ...................... 3
C. Statenent offaet................................................................................................................6
1. The Commssion's changes to the Rule H Tarff........................................................ 6
a. The Company's Application ................ ..................................................................... 6
b. Line Intalation Charges .............. ................................................... ......................... 7
c. The Pr-2009 Rule H Tarff Treatment of Line Extenion Cost, Allowances, and
Refuds ............................................................................................................................... 8
d. The 2009 Rule H Tarff Treatment of Line Extension Costs, Allowance, and
Refuds. ............................................................................................................................13
2. The Commssion's denal ofBCA's request for interenor fuding.......................... 14
II. ISSUES PRESENTD ON APPEAL................................................................................... 16
III. STANARS OF REVIEW............................................................................................17
IV. ARGUMENT....................................................................................................................18
A. Homebuilders and Boise Water provide the applicable stadas to implement Idaho's
anti-rate discration statute.................................................................................................. 19
B. Order 30955 imposes unawflly discrnatory charges as between customer inide
and outside of subdivisions.... ........................................ ........... .......................... ...................... 22
C. Order 30955 authorizes unawfuly discriminatory charges as betwee new cutomer
and existig customer. .............. .................. ..................... ...... ........ ..... ..................................... 25
D. Order 30955 violates the stdards established in Homebuilders and Boise Water. ........ 27
1. There are not substatial evidence in the record or suffcient fidigs to justify a
difference in rates as betwee customer inside and outside subdivisions. .......................... 28
2. There are not substtial evidence in the record or suffcient findings to justify a
difference in rates as between new and existing customer.................................................. 29
3. There are not substatial evidence in the recrd or suffcient fidings to support the
concluson that the Rule H amendments somehow address alleged "upward pressure on
rates" or make "growt pay for itself." ................................................................................. 31
4. The Rule H amendments inappropriately shift system-related generation and
tranission costs to new customers. ................................................................................... 35
E. The Commssion improperly dened BCA's interenor fuding requests........................ 36
1. The Comission abused its discretion in finding that BCA did not materally
contrbute to the proceedings below. .................................................................................... 37
2. The Commssion abused its discretion in finding that BCA failed to raise "issues of
conce to 'the gener body of user or consuers."'......................................................... 39
3. The Commssion abused its discretion in denyig BCA's requests for interenor
funding for BCA' s efort made prior to the Original Order................................................ 40
F. BCA is entitled to an award of attorney fees and costs on appea. ................................... 41
APPELLAN'S BRIF - i
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¡ V. CONCLUSION..................................................................................................................... 44
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TABLE OF AUTHORITIES
Cases
Boise Water Corp. v. Public Utilties Comm 'n, 128 Idaho 534,916 P.2d 1259 (1996) ........passim
HeUer v. Cenarrusa, 106 Idaho 571, 578, 682 P.2d 524,531 (l984)41Home Builders Association
of Metropolitan Denver v. Public Utilities Comm 'n of State of Colorado, 720 P.2d 552 (1986)
...................................................................................................................................................15
Home Builders Association of Metropolitan Denver v. Public Utilties Comm 'n of State of
Colorado, 720 P.2d 552 (1986).................................................................................................36
Idaho Fair Share v. Idaho Public Utilties Comm'n, 113 Idaho 959, 751 P.2d 107 (Idaho).. 18, 38,
39
Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415,690 P.2d 350 (1984) ..... 1
J.R. Simplot Co., Inc. v. Idaho State Tax Comm'n, 120 Idaho 849, 862, 820 P.2d 1206, 1219
(1991).........................................................................................................................................18
Johannsen v. Utterbeck, 146 Idaho 423, 429, 196 P.3d 341, 347 (2008).40McNeal v. Idaho PUC,
142 Idaho 685, 132 P.3d 442 (2006) .........................................................................................17
Meglinov. Eagleswood, 103 N.J. 144,145, 51OA.2d 1134,1145 (N.J. 1986)............................10
Neighbors for a Healthy GoldForkv. VaUeyCounty, 145 Idaho 121, 138, 176P.3d 126, 143
(2007).........................................................................................................................................42
Owner-Operator Independent Drivers Ass'n, Inc. v. Idaho Public Utilties Comm'n, 125 Idaho
401,871 P.2d 818 (1994) 43 Washington Water Power v. IPUC, 101 Idaho 567, 617 P.2d 1242
. (1980)...................................................................................................................................18, 31
Statutes
Idaho Code § 61-315 ..............................................................................................................passim
Idaho Code § 61-617A ...........................................................................................................passim
Idaho Code Section 12-11 7 .....................................................................................................41,42
Idaho Code Section 61-301 ...........................................................................................................24
Idaho Code Section 61-3 15 ...........................................................................................................24
IDAPA 31.01.01.164.....................................................................................................................15
Rules
I.A.R. 40 ..... .............. ......... ........................................................ .... ................................................43
Idaho Appellate Rules 40 and 41...................................................................................................41
IDAPA 31.01.01.071.....................................................................................................................14
IDAPA 31.01.01.161-165......................................................................................................3,5, 15
APPELLANT'S BRIF - ii
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I. STATEMENT OF THE CASE
A. Nature of the ease
Appellant Building Contractors Association of Southwester Idaho ("BCA") seeks
review of the Idaho Public Utilities Commission ("Commssion") Order No. 30955 ("Order
30955") approving cern unawfuly discrinatory revisions to Idao Power Company's
("Idaho Power or "Company") Rule H line extension taff ("2009 Rule H Tarff") in case
number IPC-E-08-22. Order 30955 approved revsions to the Rule H tarff that unawfuly
discrmiate in two ways. First, it authorizes Idaho Power to provide new cutomer a lesser
level of investment than it provided existing customer, thereby causing new customer to
subsidize other customers' rates. Second, it authorizes Idaho Power to invest less to extend
serce to new customer residing inside subdivisions than it invests in new customers outside of
subdivisions by forcing inside-subdivision customer to share the benefit of a $ 1,780 Company
investment in facilities that each outside-subdivision cutomer gets the full benefit of: The
reduced Company investment results in additional costs imposed on all new cutomers that are
not attbutable to them and that existing customers were not and are not subject to. These
additional costs are not reaonable or justified on ths record.
In ths regard, the 2009 Rule H Tarff is inconsistent with the priciples concering rate
discrination in Idaho Code § 61-315 and set out by the Idaho Supreme Cour in Idaho State
Homebuilders v. Washington Water Power, 107 Idaho 415, 690 P.2d 350 (1984)
("Homebuilders"), and Boise Water Corp. v. Public Utilities Comm 'n, 128 Idaho 534, 916 P.2d
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1259 (1996) ("Boise Water"). In these cases, the Idaho Supreme Cour found unlawful
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discrination betwee customer of the same class under I.C. § 61-315 wher they were
charged different rates without justification.
Order 30955 also is inconsistent with the Commission's prevous deternation in a cae
involvig the Rule H taff (the "1995 Case").! In that cae, the Commission deterined that
"new cutomer are entitled to have the Company provide a level of investment egual to that
made to sere existing customer in the same class." R. VoL. IV, p. 639 (emphasis added).
Here, however, without any supportng reasonig or justification, the Commssion has altered the
tarffs methodology, which previously was strcted specificaly to ensure that "new customer
are treated the same as existig customer in ters of the rates they pay." Tr. p. 292, LL. 8-16;
Ex. 206. The 2009 Rule H Tarff now requires new customers to pay a greater porton of costs
to connec to Idaho Power's system than existig customers paid, and requies new cutomer
within residential subdivisions to pay an even greater portion.
The basic premise for Idaho Power's 2009 Rule H tarff amendments was to make
"growt pay for itself' and to reduce an alleged source of "upward pressure on rates." The
record, however, lacks any evidence or findings by the Commission to support the asseron that
growth is not payig for itself, that new customers (rather than inflation and the cost of new
genertion and transmission needed to serve all customers) are creating upward pressure on rates,
or that the 2009 changes to Rule H appropriately remedy these alleged evils if they do exist.
Likewise, Order 30955 lacks fidings or conclusions regarding the extent to which the approved
i The 1995 Cae was Commission case no. IPC-E-95-18, which concluded with the Commssion's 1997
Order No. 26780 ("1995 Case Order), a copy of which is included in the record on appeal at R. VoL. N, pp. 626-
45.
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changes affect overall Company rates or whether the changes actly accomplish the assered
goal of makg growt cover its costs.
BCA rased these points in the proceeings below, and provided substatial evidence and
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arguent showing the tre source of increaing costs is inflation, generation, and trsmssion
and that the Rule H changes would result in unawful discrination. But Order 30955 gives
barely a nod to BCA's arguents and evidence. Instead, asserg only that conditions are
different today and that the stadards of Homebuilders do not apply to non-recurrg cost for
line extensions to sere new customers, Order 30955 dismisses its own and ths Cour's relevant
preceent. Order 30955 fails to even mention this Cour's Boise Water decision. In short Order
30955 utterly fails to grapple with the applicable factors and standards relevant to its decision.
This appeal also challenges the Commission's decision to deny BCA intervenor fuding
pursut to Idaho Code § 61-617A and the Commission's Rules of Procedure, IDAPA
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31.01.01.161-165, on the Commission's asserted grounds that BCA did not materally contrbute
to the Commission's decision, did not address issues of concer to the general body of users or
consumer, and did not timely file its intervenor fundig request.
B. Course of proceedings below
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On October 30,2008, Idaho Power applied to modify its Rule H taff R. VoL. I, pp.
1-55 ("Application"). On Janua 21,2009, the Commission issued notice that the Application
would be processed under Modified Procedure and established a schedule for paries to fie
comments concerg the Application with the Commission. R. VoL. I, pp. 129-132. The
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Commission defered deciding whether a hearng was necessar until it reviewed the pares'
comments. Id.
1995 Case, included evidence in rebutt of the Company's asseron that growt was the cause
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of increaed distbution costs, descrbed the advere economic effects of the taff revisions, and
offered an updated metod for computing appropriate allowances and adminsterg vested
interest refuds. Id.2
On May .1, 2009, BCA also fied its response to the comments submitted by the
Commission Staff. R. VoL. II, pp. 253-261.
On July 1,2009, based on the paries' comments and without holding a hearg, the
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Commission issued Order No. 30853 parally approving the Application. R. VoL. II, pp. 313-26
("Orginal Order"). Among other thngs, the Orginal Order signficantly altered Rule H's
strcte by eliminating the previous $800 per developed lot/new customer refud and providing
for a flat $1,780 allowance for each transformer installed inside a subdivision, and a $1,780
allowance for each customer located outside a subdivision. Id. at 10-12.
On July 13, 2009, BCA filed its Requestfòr Consideration and Granting ofLate-Fi/ed
Request for Intervenor Funding purant to Idaho Code § 61-617 A and the Commssion's Rules
2 The meanigs of the ter "allowaces" and "vested interest refuds" ar dised below. See infra n.6
and discussion in acconianying text
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of Procedure, IDAPA 31.01.01.161-165. R. Vol. II, pp. 327-40 ("First Interenor Funding
Request"). The Commission denied BCA's Interenor Funding Request as untiely. R. VoL.
III, pp. 428-30 ("First Interenor Funding Order").
On July 22,200, BCA timely filed its Petitionfor Reconsideration and/or in the
Alterntivefor Clarifcation and Petitionfor Stay of the Original Order, R. VoL. II, pp. 358-72
("Petition for Recnsideration"), as did the Ada County Highway Distrct ("ACHD"), the City of
Nampa, and the Association of Canyon County Highway Distrct. R. VoL. II, pp. 341 -57, 373-
82.
On August 19, 2009, the Commission grted in par BCA,s Petition for
Recnsidertion, ordered that a techncal heang be held on the issue of the amount of
appropriate allowances, and established a September 1 1, 2009 deadline for BCA to file direct
testimony with the Commssion. R. VoL. III, pp. 405- 1 0,
The techncal heang was held on Ocober 20,2009. At the heang's conclusion, the
Commission asked for post-heang briefs. Tr. VoL. II, pp. 299-300. BCA and the Company
filed briefs on October 27,2009. R. VoL. III, pp. 586-96 (BCA) and 597-608 (Idaho Power).
On November 9,2009, BCA timely filed its Requestfor Intervenor Funding in which it
sought interenor fuding for its efforts durng the entie proceedng (i.e. pre- and post-Orginal
Order). R. VoL. IV, pp. 612-47 ("Second Interenor Funding Request").
On November 30,2009, the Commission issued Order 30955 affrming, rescinding,
amending, and clarfyng pars of its Orginal Order, and denying BCA's Second Interenor
Funding Request on grunds that BCA had not materally contrbuted to the proceedings, did not
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raise issues of concern to the general body of rate payer, and did not tiely request interenor
fuding for the pre-Orginal Order porton of the proceeding, R. VoL. IV, pp. 648-78.
On Janua 8, 2010, BCA and ACHD timely appealed to ths Cour challengig the
Commssion's decisions. R. VoL. IV, pp. 679-83 (ACHD); 684-90 (BCA). The appeals were
consolidated by ths Cour for puroses of the Agency's Record only. R. VoL. IV, pp. 699-700.
C. Statement of facts
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Ths statement of facts is organzed in two main subsections: BCA first sumarzes the
facts regarding the Commssion's appoved changes to the Rule H Tarff; and, second, BCA
sumarzes the facts regarding the Commssion's denial of BCA, s interenor fuding request.
1. The Commission's changes to the Rule H Tariff
a. The Company's Application
Idaho Power applied for approval of cerain amendments to its Rule H tarff (sometmes
refered to as a "Line Extension" tarft. R. VoL. I, pp. 1-55. Ths tarffgovems Idao Power's
charges for "requests for electrc serce. . . that require the installation, altertion, relocation,
removal, or attchment of Company-owned distrbution facilties.,,3 R. VoL. I, p. 11.
Specifically, Idaho Power sought to "reorgane the tarff sections, add or revise definitions,
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update charges and allowances, modify refud provisions, and delete the Line Installation
Agreements section." R. VoL. I, p. 4. BCA's primar concers in the proceedings below and on
appeal are the changes to line extension charges, allowances, and refud provisions ultimately
approved by Order 30955.
3 "Distrbution" facilties include the power lines serg local aras and the individua customer prese.
They are distigushed from "genertion" or "trmission" facilties, as discussed fuer below.
APPELLANT'S BRIF - 6
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Idaho Power's premise for the tarff revisions was that "reducing allowances and refuds
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will relieve one area of upward pressure on rates and will take a step toward growth paying for
itself." Tr. VoL. I, p. 61. The Application explained its intent to "defer rate increases by
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proposing Rule H revisions to update line extension charges and allowances, thereby shiftg
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more of the cost burden for new serce attchments and distrbution line instalations or
alterations from generl ratepayer to new customer requesting constrction for these servces."
R. VoL. I, p. 3, , 3. Idaho Power's main witness, Gregory Said, testified that "the only thing
that's being addressed here is the level of investment that the Company should be makng on
behalf of not current customers but futue customers to connec them and allow them to receive
the same residential serce rates that all other residential cutomer receive." TR. VoL. II, pp.
125-26.
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b. Line Installation Charges
Ostensibly, "(l)ine installation charges offset the actual per-cutomer cost of physically
connecting to Idaho Power's distrbution system. . .." R. VoL. III, p. 599 (Idaho Power's Post-
Hearg Brief). It is well-settled, and BCA does not contest, that Idaho Power can charge new
cutomers for the new serce attachments and distrbution line installations attrbutable to
them.4 In the 1995 Case, the Commission found that such charges to new customers were
perissible because, "(i)n the case of distrbution plant, it is easy to identify the purose for its
constrction," R. VoL. IV, p. 639; that is, "line extension charges are imposed only on those
4 As explained below, BCA taes issue with the level of
invetment tht Order 30955 now allows Idao
Power to make in new customers, not necessarly the cost above an appropriate Company investment imposed on
new customers to connect to the system. These ar related, but differet, concepts.
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customer who will be sered by the related facilities" and "(t)hose facilties will provide serce
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only to those customer who paid for them." R. VoL. IV, pp. 635-36. Thus, distrbution plant
costs ca be contrasted with "trsmission, substation and generation costs ( which) are viewed as
system-related rather than customer-specific," and for which Idaho Power recoups all its costs
though its power rates paid by all customers. Id.
c. The Pre-2009 Rule H Tarff Treatment of Line Extenion Costs,
Allowance, and Refuds
Prior to Order 30955, the Rule H taff required Idaho Power to invest in new customer
distrbution facilties at a level "equal to that made to sere existing cutomers in the same
class," R. VoL. IV, p. 639 (1995 Case Order), and required new customer to pay those line
extenion costs in excess of the portion that Idaho Power was required to invest. Idaho Power's
level of investment in new customer distbution approximated its "embedded cost" (also
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sometimes refered to as "embedded investment,,).5 Id.
The Rule H tarff approved in the 1995 Case authorized Idaho Power to invest in new
cutomer distrbution facilities though a system of "allowances" and "refuds." An
"allowance"-sometimes caled a "Company-fuded allowance"-represents Idaho Power's
investment, rather than the new customer's investment, in new customer distrbution facilities
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that the Company is authorized to recoup though electrc rates paid by all cutomer. R. VoL. I,
p. 168 (IPUC Staff Comments); see also R. VoL. I, p. 26 (definition of "Line Instalation
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S "Embedded cost represents the Company's curent' level of investment made to serve existig
customers,' and . . . approximates the Company's per customer level of investment in distrbution plant tht it can
recover though existing rates." R. VoL. il, pp. 442 LL. 18-23 (Slaughter testiony); Tr. VoL. II, p. 232, L. 21- p.
233, L. 6. See also R. VoL. I, pp. 169.70 (Commission Staffs discussion of embedded investment).
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Allowance" in proposed verion of 2009 Rule H Tarff included with Application). The
"refud" component of the Rule H tarff came into play when a subdivision developer (who,
rather than receiving an up-front Company-fuded allowance, was require to pay the costs of
new distrbution facilities neeed for a subdivision) requested a refud from Idaho Power for
each subdivision cutomer that connected withi five year of the new distrbution facilties'
completion.6 R. VoL. IV, p. 641 (1995 Case Order). Ths strcture of up-front allowances and
refuds was intended to ensure that Idaho Power provided new customer "a level of investment
equal to that made to sere existing customer in the same class," R. VoL. IV, p. 639 (1995 Case
Order). And, as Commission Staff obsered in the instant case, the refud component of the
strctue "puts the risk of development on the subdivision developer rather than on Idaho
Power's ratepayers." R. VoL. I, p. 172 (IPUC Sta Comments).
The 1995 Case, in which the Commission approved ths system of allowances and
refuds, saw Idaho Power seeking to eliminate allowances and refuds and require a new
customer to pay the entire cost of line extenions. At that time, line extensions were paid by the
new residential customer or developer, and the Company later refuded up to $1,200 per
customer when he or she connected to the system. R. VoL. IV, pp. 628-629. Similar to this case,
BCA then opposed the elimination of the refuds because, among other thngs, it would require
new customer to pay the entire cost of the new line extension plus pay in their gener rates an
6 The Rule H Tarff also provides for a "veste interest refud" to be paid to an applicant for new service
who has paid to the Company line intallation chages for extenion of distrbution facilties wher additional
applicants later attch to tht section of distrbution facilties. R. Vol. I, p. 21. The vested interest refud proviions
of the taff are not at issue in ths appeal.
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increnent to cover the Company's investment in line extensions serng its existig customer
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and would have negative impacts on developer. Id., at p. 631. Ultimately, The Company
modified its proposal and urged the Commission to approve an overall allowance based on the
cost of terinal facilties and up to a $1,300 pe new customer refud. ld., pp. 628.629. The
Company advocated that ths proposed allowance was justified because, "if an aÜowance or
Company investment is established equa to the embedded cost of facilities already included in
rates, new customers are treated the same as existing customers in ters of the rates they pay."
Tr., p. 292, LL. 12-16. As the Company then urged in support of its modified allowance
strcte, ensuring that everone (i.e. existing and new cutomer) pays the average rate base
embedded in rates would "kee all customers on a level playing field." R. VoL. IV, p. 630
(Commission suar of Company's arguent).? The Commission agreed, statig:
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We find that new cutomers are entitled to have the Company provide a level of
investment equa to that made to sere existing cutomer in the same class.
Recover of those costs in excess of embedded costs must also be provided for
and the impact on the rates of existing cutomers is an important par of our
consideration. We also recognze that requirig the payment of all costs above
embedded investment from new customer could have severe economic effects.
ij R. VoL. IV, p 639. The Commssion thus confirmed the new customer's entitlement to a
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minimum Company investment equa to the Company's investment in its existing customers, i.e.
its "embedded cost" in distrbution. At the same time, the Commission apparently recognzed
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that requiring a Company investment greater than embedded cost could produce impacts (i.e.
ii 7 Other jursdictions have desbed ths as putting new and existig customers on "equal footig." See,
e.g., Meg/ino v. Eagleswood, 103 N.J. 144,145,510 A.2d 1134, 1145 (N.J. 1986) (also statig that "equality of
treatment is obviously the polesta," 510 A.2d at 1140).
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cause upward pressure) on the rates of existing customer because the Company would have to
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recover its above-embedded cost investment though rates. The Commission also apparently
believed it was appropriate to balance the risk of upward pressure on rates against the risk of
severe economic impacts to new customer if they paid too great a porton of the new facilties
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costs.
The reason a Company investment in distrbution facilties to sere new customer based
on its embedded distrbution investent does not create upward pressure on rates is that the
Company already is authorized to recover that level of investments over time though rates
charged to its cutomer. As in the 1995 Case, the Commssion Staff recgnized in the intant
proceeding the importance of analyzing allowances in light of embeded costs:
. . . the line extension rules should provide a new customer allowance (Company
investment) that can be supported by electc rates paid by that customer over
tie. . .. In order to properly establish an allowance, a refud and the potential
for additional customer contrbution, a detailed analysis of distrbution investment
embedded in existing electrcal rates must be conducted.
R. VoL. I, pp. 168-169 (emphasis added). Staff then underook that detailed analysis and
calcuated the Company's per customer embedded distrbution investment to be $1,232.44. R.
VoL. I, pp. 169-170.
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Also in the instant proceeding, BCA,s witness,.Dr. Slaughter, explained why embedded
costs were an appropriate basis for analyzing the allowances for distrbution facilties serng
new customers:
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(E)mbedded cost approximates the Company's per customer level of investment in
distrbution plant that it ca recver though existig rates. To the extent that the
Commssion wants to relieve upward pressure on rates, then limiting the Company's
APPELLANT'S BRIF - 11
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investment in distrbution to sere new customer to its cuent per customer embeded
costs for distbution facilties providing the same serce to existing cutomer
accmplishes this.
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R. VoL. III, pp. 442-43; Tr., VoL. II, pp. 233-234. Using data provided by Idaho Power in
response to discover, Dr. Slaughter calculated the Company's average embedded investment in
distrbution for residential cutomer to be $ 1,102.00, Ex. 204, which BCA concedes is
reaonably close to Commission Staffs $1,232.44 figue. R. VoL. III, p. 443 LL.7-12
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(Slaughter).
When the Company's investent in distrbution facilities for new cutomers falls below
its embedded cost, then it recover though rates more than it invested in the distrbution
facilties serg the new customer. Tr. VoL. II, p. 237, 1. 15 - p. 239, L. 3. For example~ in a
sixty lot residential subdivision under Commission Staffs $1,232.44 embedded cost calculation
and the $1,780 allowance approved in the 2009 Rule H Tarff Case, the Company could net
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$ 1 ,084.00 more than its per cutomer investment. Tr. VoL. II, p. 240. In ths sitution, the
Company realizes a profit on each new customer intallation supplemental to the Company's
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authorized rate ofretu. Tr. VoL. II, p. 243, LL. 6-18. Absent a tre-up or accountig for ths
(i.e. some method of refuds to new customers who have overaid to connect to the Company's
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system), the obvious question is: what becomes of ths additional income or excess revenue
provided by the new customer? Dr. Slaughter testified that, absent a timely tre-up that
attbutes the excess revenues back to the new customers who paid them,
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. . . the practical effect quite likely wil be that the amount eared on new
distrbution plant in excess of embedded costs, wil be applied to help pay the
Company's other costs, including non-recoverble costs, generation and/or
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transmission costsnew customer will be paying an unequa proporton of
these costs when compared with existing customers.
Tr. VoL. II, p. 247, LL. 1-9. In effect then, though the increased customer contrbution
"~OJ necessitated by a below-embedded cost investment by the Company, the new customer winds up
subsidizing the rates of existig customers. The opposite result occur when a company invests
more than its embedded cost. 8
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d. The 2009 Rule H Tarff Tretment of Line Extension Costs,
Allowances, and Refuds.
The Commssion altered Rule H's strctue of allowances and refuds by elimatig the
existig $800 per developed lot/new customer refud (see R. VoL. I, pp. 42-43 highighting
changes to refuds rules) and providing for a flat $1,780 allowance for each tranformer instaled
inside a subdivision, and a $1,780 allowance for each customer located outside a subdivision. R.
VoL. II, p. 322 (Orgial Order).9 Because up to ten new customers may connect to a trformer
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withn a subdivision, new cutomer inside of subdivisions share the allowance. Tr. p. 237, LL.
3-5 (Slaughter). "The $1,780 allowance is based upon the installed cost of that trsformer
($915) along with serice conductor and meterg ($865)." Tr. p. 281, LL. 1-4. The
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8 See e.g., Order 26780, R. Vol. iv, p. 639-40 ("Recover of those costs in excess of embedded costs must
also be provided for and the imact on the rates of existig customers is an importt par of our considertion," and
whether the allowance is applied though a terl facilties component or a lie extenion component is not
critical, but "(tJhe amount of the allowance is critical, however."); City of Aurora v. Public Utilities Comm'n of
State afColorado, 785 P.2d 1280 (1990); Home Builders Association of Metropolitan Denver v. Public Utilties
Comm 'n afState of Colorado, 720 P.2d 552 (1986) (recogng relationship between line extesion allowances,
company embedded investment and subsidization of rate).
9 In Order 30955, the Commssion found tht ths $1,780 figu is "based on the average cost of
distrbution facilties (the Stadard Tenn Facilties) for a new customer," R. VoL. IV, p. 651. "Stadad
Tenn Facilties" are defined in the 2009 Rule H Tarff as "the overhead Terminl Facilities the Company
considers to be most commonly installed for overhead single phase and thee phae services," and "Termnal
Facilties include trformer, meter, overhead sece conductor, or underground serce cable and conduit (where
applicable)." R. VoL. i, pp. 12-13.(1
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Commission found that "(b )ecause the allowance is caculated on a per transformer basis and not
a per customer basis, the allowance inside and outside subdivisions provides the same Company
investment." R. VoL. IV, p. 668 (Order 30955).
The 2009 Rule H Tarff authorizes a smaller allowance (i.e. lesser level of Company
investment) than previously authorized. R. VoL. II, p. 390; R. VoL. III, p. 598; Tr. p. 273, LL. 3-
7; Tr. p. 1 i 8, LL. 5-7. Said another way, under the 2009 Rule H Tarff Idao Power provides a
lesser level of investment to new customer than it provided existing customers and a lesser level
ofInvestment among new customer who share transformer because they live inside
subdivisions.
BCA's witness Dr. Richard Slaughter calculated that the rage of the Company's per
customer investment under the 2009 Rule H Tarff can var from a high of $1,780 to as low as
$149 depending on whether the customer is located inside or outside a subdivision and the size
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of the subdivision. R. VoL. II, p. 445; Tr. VoL. II, p. 237, LL. 1-14.
2. The Commission 's denial ofBCA 's request for intervenor funding
As authorized by the Commission's Rule of Procedure 71, iDAPA 31.01.01.071, BCA as
an interenor actively parcipated thoughout the proceedings below.
Prior to the Commission's Orginal Order, BCA filed comments and direct exper
testimony descrbing the infirmities ofIdaho Power's proposed changes to the Rule H taff. R.
VoL. II, pp. 233-34. BCA also resonded to the Commission Staffs comments, pointing out
what BCA believed to be Staff s "inadverent" assumption that a per trsformer allowance
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would provide a per customer Company investment approximating its embedded distrbution
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costs. R. VoL. II, p. 255.
BCA petitioned for reconsideration of the Commission's Orginal Order, R. VoL. II, pp.
358-72, and, pursuant to the Commission's Order granting reconsideration, R. VoL. III, p. 408,
filed additional direct exper testimony, R. VoL. III, pp. 440-458, paricipated in a technical
hearng, R. VoL. III, pp. 502-04, and submitted a post-hearg brief, R. VoL. III, pp. 586-96.
These effort all focused on the basic arguents made here-that the Rule H tarff modifications
rêsult in unlawfl discrmination under Boise Water, Homebuilders, and the Commission's prior.
decision in the 1995 Case. In its request for reconsideration, BCA identified the lack of findings
or conclusions supporting the Commission's decision in the Original Order and, in the alterative
to reconsideration, requested the Commission clarfy for the record that it was rejectng its
previous standad set in the 1995 Case, as well as the basis for and scope of the new stadard,
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and enumerate its justification for ths change and for the resulting discrnatory charges. R.
VoL. II, p. 268.
BCA twice requested interenor fuding purant to Idaho Code § 61-617A and IDAPA
31.01.01.161-165-once following the proceedings leading up to the Original Order (the First
Intervenor Funding Request), and again following the reconsideration proceedings (the Second
Interenor Funding Request). No pary opposed either request. Neverteless, the Commission
denied both, but for different reasons.
The Commission denied BCA's First Interenor Funding Request on grounds that it was
untimely under the Commission's Rule of Procedure 164, IDAPA 31.01.01.164. Rule 164
APPELLANT'S BRIF - 15
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requires that interenor fuding requests must be made "no later than foureen (14) days after the
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last evidentiar hearng in a proceeding or the deadline for submtting briefs, proposed order, or
statements of position, whichever is last." Under its Modified Procedure, the Commission did
not origially schedule an evidentiar hearng or deadlines for submittng brefs, proposed
orders, or statements of position prior to the Orginal Order. Rather, it received comments from
the pares with the possibilty of scheduling a hearg after considerng the comments. R. VoL. I,
p. 131. The Commssion did not order a hearg, and deterined that the May 1, 2009 deadline
for filiiigreplycomments trggered a May 15, 2009 deadline for filing requests for interenor
fuding. Consequently, BCA's First Intervenor Funding Request, filed on July 13,2009, was
deemed untimely and dened. R. VoL. II, p. 429.
The Commission dened BCA's Second Intervenor Funding Reques on grunds that
BCA did not "materally contrbute" to the Commission's decision and its advocacy did not
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address issues of concer to 'the general body of user or consumer.''' R. VoL. IV, p. 673. The
Commission also deterined that BCA was not entitled to interenor fuding for its efforts prior
to the Orginal Order on the ground that BCA's First Interenor Funding Request was not timely
filed.
II. ISSUES PRESENTED ON APPEAL
1. Whether the Commission's 2009 Rule H Tarff imposes unlawfully disparte and
discrminatory rates as among new customers living inside and outside of
subdivisions and as between new customer and existing customers.
APPELLANT'S BRIF - 16
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2. Whether the Commission regularly pured its authority to set nondiscrinatory
rates, where its decision is not supported by substantial evidence, findings or
conclusions to support the disparate and discrminatory rates authorized by Order
30955.
3. Whether the Commission abused its discreton in failng to award BCA interenor
fuding.
4. Whether BCA is entitled to an award of attorney fees and costs on appeal.
III. STANDARS OF REVIEW
Two standards of review apply in this appeal. The first applies to ths Cour's revew of
the substantive issues concering the 2009 Rule H Tarff and the second applies to the question
of whether BCA should have been awarded intervenor funding for its parcipation in the
proceedings below.
The stadard of review on the substative issues concering the 2009 Rule H Tarff is,
itself, bifucated. "(W)ith regard to questions oflaw(,) review of Commission orders is limited
to a deterination of whether the Commission has regularly purued its authority and whether
the constitutional rights of the appellant have been violated. With regard to questions offact(,)
this Cour wil sustain the Commssion's deterinations unless it appears that the clear weight of
the evidence is against its conclusions or that the evidence is strong and persuasive that the
Commission abused its discretion." McNeal v. Idaho PUC, 142 Idaho 685, 132 P.3d 442 (2006)
(citation omitted). This Cour also needs to deterine whether in allocating costs to new
APPELLAN'S BRIF ~ 17
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¡ cutomers, the Commssion regularly pured its authority to set nondiscrminatory rates. Boise
Water, 916 P.2d at 1262-63.
On the issue of interenor fuding, which the Commission is authoried to award
-1 pursuant to statute, the Supreme Cour employs an abuse of discreton standard. Idaho Fair
Share v. Idaho Public Utilties Comm'n, 113 Idaho 959, 751 P.2d 107 (Idaho), rev'd on other
grounds. J.R Simplot Co., Inc. v. Idaho State Tax Comm'n, 120 Idaho 849, 862, 820 P.2d 1206,
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1219 (1991). "The wording ofI.C. § 61-617A makes it evident that the Commission is vested
with the discretion to. award attorney's fees and costs . . .. The decision of the adjudicating body
awarding fees wil not be overed absent an abuse of discretion." Id. at 963, 751 P .2d at 1 1 1.
IV. ARGUMENT
The Commission's Order 30955 authorizes Idaho Power to charge new customers
discrinatory rates and charges in violation of the anti-discrination provisions of Idaho Code
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§ 61-315 and the Idaho Supreme Cour's decisions in Homebuilders and Boise Water. Without
any apparent rationale or justification, it also is contrry to the Commission's own decsion in the
1995 Case, where it recognized that "new customer are entitled to have the Company provide a
level of investment equal to that made to sere existing customer in the same class." R. VoL.
IV, p. 639. Order 30955 fails to satisfy the legal standards established in Homebuilders and
Boise Water, and does not provide the necessar level of rationale for its substantial divergence
from a prior, longstanding Commssion ruling on the same tarff involved in this case. See
Washington Water Power v. IPUC, 101 Idaho 567, 617 P.2d 1242 (1980) ("So long as the
APPELLAT'S BRIF - 18
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Commission enters suffcient findings to show that its action is not arbitr and caprcious, the
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Commission ca alter its decisions.")
A. Homebuilders and Boise Water provide the applicable standards to
implement Idaho's anti-rate discrimiation statute.
The starg point in reviewig Order 30955 with respect to its treatment of charges Idao
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Power may impose on new customer to obtain serce, is with the standards established by
Idaho Code § 61 -315 and by the Homebuilders and Boise Water Cour.
Idaho Code § 61 -315 prohibits rate discrimination by a public utility. It states:
No public utility shall, as to rates, charges, serce, facilties or in any other
respect, make or grant any preference or advantage to any corpration or peron
or subject any corporation or peron to any prejudice or disadvantage. No public
utility shall establish or maita any uneasonable difference as to rates, charges,
serce, facilties or in any other respect, either as between localities or as
between classes of serce. The commission shall have the power to deterine
any question of fact arsing under ths section.
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LC. § 61-315 (emphases added). Ths prohibition of preferential or discrminatory rates formed
the basis for the Idaho Supreme Cour's decisions in Boise Water and Homebuilders.
In Homebuilders, this Cour reviewed the Commssion's decision to impose a non-
recurng charge on the installation or conversion to electc heating after May 1, 1980.
Homebuilders, 107 Idaho at 417, 690 P .2d at 352. The charge was imposed only on customer
who had the option of choosing natual gas for heating, Id., and the Commission ordered the
¿J money collected though those charges be used specifically to offset the cost for new genertig
facilities. Id. at 418,690 P.2d at 353. The Homebuilders Court held that the charge ''uawfully
discrminate(dJ between 'new' and 'old' customers," and that the Commission incorrecly
APPELLANT'S BRIF - 19
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assumed "that only 'new' customers wer respnsible for the (increased) level of demand (on
new generating facilities)." Id. at 421,690 P.2d at 356. In reaity, the Cour held, all
customers--ld and new-are equally responsible for the level of demand on generting
facilities and, therefore, there was no difference in the cost of serce betee old and new
cutomers that would justify a difference in rates. Id.
The Homebuilders Cour identified factors that could justify a differce in rates,
including "cost of serce, quantity of eleccity used, differences in conditions of serce, or the
tie, natue and patter of the use," Homebuilders, 107 Idaho at 420,690 P.2d at 355, but found
that there was no justification for the Commission-approved rate disparty in that case.
Accordingly, the Court held that the charge "violate( d) the legislative prohibition agains
discriinatory or preferential rates." Id.
In Boise Water, the Cour reviewed the Commission's decision to increase Boise Water
Corporation's non-recurg charges for new connections to its system (i.e. "hook-up fees") after
July 25, 1994. Boise Water, 128 Idaho at 535, 916 P.2d at 1260. Boise Water recently had
constrcted a water treatment plant and the Commission found that "the cost of supply for a new
serce connection vared greatly depending on whether the water supply came from a well or
(the) water treatment plant." Id. at 536,916 P.2d at 1261. For that reason, the Commission
increased the hook-up fees to "help protect existig rate-payer from the costs associated with
growth and 'ensure that grwt pays for itself.'" Id. at 536, 916 P.2d at 1261. The Boise Water
Cour, however, found that the question presented was whether the Commission properly
allocated "the entire increased cost of resource supply (i.e. the new water treatment plant) to new
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customer via hook-up fees." Id. at 538, 916 P.2d at 1263. More specificaly, the Cour stated
that, "as in Homebuilders, the focus. . . is whether the cost of serce differs between the two
classes (of customers-those added to the system before the water treatment plant cae online,
and those added after)." Id. at 539,916 P.2d at 1264. The Cour reiterted the Homebuilders
holding that a "difference in rates and charges must be justified by a corresponding classification
of customer that is based on such factors as cost of serce, quantity of resource use, differences
in the condition of serice or in the time, natue or patter of the customer' use," Boise Water,
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128 at 539, 916 P.2d at 1264 (citig Homebuilders). The Cour concluded that "the cost ha
increased proportonately for each Boise Water customer," that "(t)here is no difference in the
cost of servce between (old and new customer)," that "(e)ach new customer that has come into
the system at any time has contrbuted to the need for new facilties," and that "(t)o the extent
that the new hook-up fees are based on an allocation of the incremental cost of new plant
constrction required by growt. . . solely to new customers, the fees unawflly discriminate
between old and new customers. . .." Id.
The Homebuilders and Boise Water decisions then do not stand for a blanet rule, as
suggested by the Commssion, that "no discrmination is present 'when a non-recurng charge
(e.g., a line extension charge) is imposed upon a new customer' . . . ." R. VoL. IV, pp. 669-70
(Order 30955). First, the Court held in both cases that the non-recurrg charges at issue were
discrminatory. Homebuilders, 107 Idaho at 416,690 P.2d at 351 (stating the case involved a
"non-recurrng charge"); Boise Water, 128 Idaho at 535,916 P.2d at 1260 (stating the case
involved one-time "hook-up fees"). Second, these cases require the Commission to justify a
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difference in rates and charges based on the Boise Water/Homebuilders factors regardless of
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whether the charge is "non-recng." True, there argubly could be lawfl difference in non-
recurng charges between customer, but they must be justified based upon an application of the
Boise Water/Homebuilders factors to actal facts in the record. No justification exists in the
instant case, nor are there facts or analysis in the record that would provide such justification.
B. Order 30955 imposes unlawfuly discrimatory charges as between
customers inside and outside of subdivisions.
Order 30955 authorizes a $1,780 allowance per transformer installed withn a residential
subdivision and a $1,780 allowance per customer outside of residential subdivisions. R. VoL. IV,
p. 674 (Order 30955 denying BCA's petition to amend Orginal Order); R. VoL. II, p. 332
(Original Order at 10). This argement patently treats customer inside and outside
subdivisions disparately because in a subdivision a single transformer may sere multiple (up to
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ten) customers if those customers are located in suffcient proximity to each other, Tr. p. 237,
LL. 3-5 (Slaughter), wherea, in the case of a single customer requesting serce outside a
subdivision, a transformer wil only sere that one cutomer. Thus, customers withn a
residential subdivision wil share a trnsformer and the $1,780 per transformer allowance pro
rata. On the other hand, the single new customer outside a residential subdivision shares a
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transformer with no one and receives the full benefit of the $1,780 allowance.
Order 30955 also eliminates the previously required $800 per subdivision lot refud that
accounted for (i.e. made up for) what previously was deemed an insuffcient level of investment
that would occur if the Company provided only an allowance for Terinal Facilties (i.e.
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transformer) and the subdivision developer paid the upfront cost of new distrbution facilties
needed to serve a subdivision. Subdivision developer now will receve only a per trformer
allowance and no per lot refund. Because the developer's costs are passed though to each lot
purchaser (i.e. Idaho Power's new customer), the elimination of per lot refuds resuts in a
lesser Company investment in each new customer with a subdivision, and a higher cost to the
developer that is passed on to the new home purchaser, some of whom are priced out of the
market. Tr. VoL. II, pp. 209-10, LL. 1-24,1.1; R. VoL. II, pp. 246-247; Exh. 203.
BCA presented unrebutted evidence that, except in the case of a new customer requestig
serce to a single lot who will not have to share a trformer, no other customers (i.e., those
within subdivisions) wil receive the ful benefit of the Company's $1,780 per transformer
investment. Tr. Vol. II, p. 237, 1. 1-p. 245, 1. 25. In its Response to Staff Comments, and its ....,-- -.--
Petition for Reconsideration, BCA ilustrated this clearly in a table sumarzing data already in
evidence. R. VoL. II, p. 256; R. VoL. II, pp. 362-63. This table ilustrates that, because of the
elimination of any per-lot refund, the new customers inside a subdivision must share the
approved $ 1,780 allowance. Ths reduces the Company's per customer investment to as low as
$149 in a sixty-lot subdivision. R. VoL. II, p. 362. Each of the new customers inside a sixty-lot
subdivision is, therefore, required to pay though rates $1,631 ($1,780 - $149) more than the
single new customer outside a subdivision pays for the same servce. To rub salt in the wound,
this per trsformer allowance results in the new subdivision customer then payig-though rates
as an "existing customer"-up to $ 1 ,084 more than the Company invested in the facilties
constrcted to serve that new customer. R. VoL. III, pp. 445, 447 (Table 1).
APPELLANT'S BRIF - 23
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i.,Idaho Code Secon 61-301 requires all rates and charges to be just and reasonable, and
Idaho Code Section 61 -315 prohibits either preferential or discrinatory treatment of ratepayers
by public utilities. The 2009 Rule H Tarff satisfies neither of these statutes.
The previous Rule H system of allowances and refuds was strctued to ensue that
Idaho Power provided new cutomer "a level of investment eqal to that made to sere existing
cutomers in the same class." R. VoL. IV, p. 639 (1995 Case Order). It also tied the Company's
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level of investment in new customer distrbution facilities to average embedded costs in order to
"keep all customer on a level playig field." R. VoL. IV, p 630 (Commission sumar of
Company's arguent). The Commission has abandoned this methodology and reaoning
without acknowledging it or providing a reasoned explanation. See Boise Water, 128 Idaho at
537,916 P.2d at 1262 ("In addition to makng findings of fact based on substantial, competent
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evidence, the IPUC must explain the reasonig employed to reach its conclusions in order to
ensure that the IPUC has applied relevant crtera prescrbed by statute or its own regulations and
has not acted arbitrarly or capriciously.")
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Order 30955 avoids this question by urging that the approved taff provides for an equal
"per transformer" investment regardless of where the customer is located. R. VoL. IV, p. 668. In
its testimony Idaho Power does the same by creating an "applicant" class of customer and
arguing that the 2009 Rule H Tariff treats "applicants" for new serce equally (presumably by
giving them access to a Company fuded transformer) and that once they have paid the increased
cost to receive serce they become "existing customers" paying existing customer rates, who all
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then pay the same general rates. Tr. p 288, L. 9 - P 289, 1. 2. See also R. VoL. III, p. 599 ("So
APPELLAN'S BRIF - 24
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long as all potential new customerapplicants are treated in a like maner, there is no unawfl
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discrmination." (emphasis added)). Ths addresses neither the disparty in overall costs paid by
new customers inside and outside subdivisions to receive the same level of serce, nor beteen
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Indeed, the same argument could have been made in the Boise Water cae-nce the
applicats for new serce paid the increased hook-up charge, they too became "existng
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customers" subject to the same rates as existing customer. But that did not change the fact that
Boise Water's proposed increased contrbution to becme a cutomer bore no real relationship to
the cost to interconnect, but rather was calculated to help offset other costs attbutable to all
customer, i.e., water treatment.
C. Order 30955 authories unlawfully discrimatory charges as between new
customers and existig customers.
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The 2009 Rule H Tarffs $1,780 transformer/terinal facilities allowance also reslts in
new customer receivig a lesser level of investment than existing customers received. This is
unlawfully discriminatory.
The 2009 Rule H Tarffs $1,780 allowances fall far short of the previously authorized
allowances. The $1,780 figure is "based on the averge cost of distrbution facilities (the
Standard Terinal Facilties) for a new cutomer." R. VoL. IV, p. 651. "Standard Terinal
Facilties" are defined in the 2009 Rule H Tarff as "the overhead Terinal Facilties the
Company consider to be most commonly installed for overhead single phase and thee phase
serces." R. VoL. I, p. 12. The version of the Rule H taff in effect immediately prior to
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approval of the 2009 Rule H Tarff authoried allowances for new customers of "Overead
Terinal Facilities" plus a refud of $800 per subdivision lotIO or "Overhead Terinal
Facilities" plus $ 1 ,000 to $1,300 depending on whether the new non-subdvision cutomer
~J utilzed electrcity for heating. There were differences in the allowances/refuds as among new
customer, but those differences bore a relationship to the Company's abilty to recover them
through the authorized rates it would charge that customer once connected to serce. I I No such
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~.. ,nexus exists under Order 30955. The 2009 Rule H Tarffs allowance of "overhead Teral
Facilities" plus nothng, is a much smaller allowance than the previous tarffs "Overhead
Terinal Facilities" plus $800 or $ 1,000 or $1,300. Ths produces a corresnding cost to the
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cd new customer that previous new customer (now existing customer) did not incur because that
cost was incured by the Company and it is recovering it though its existing rates.
To be clear, BCA's case is not premised simply on the fact that the 2009 Rule H Tarff
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allowance is smaller than previously required, or that new customers may pay more to extend
serce than existing customer who accessed serice when facilties costs wer lower. BCA has
consistently acknowledged that the Rule H tarff must be adjusted incrementally from tie to
10 Inside of subdivisions, the prevous verion of the Rule H taff authoried an alowace equal to the cost
of Overhead Terl Facilities plus $800 per lot. R. Vol. i. p. 43; R. Vol. I, p. 198 (ipUC Sta Comments Att 8).
The developer would pay al of the costs in excess of termal facilities up-front, but would receive the $800 as a
per lot refund for each new customer connected to electrc serce with five yea.
11 See Tr. Vol. II, pp. 243-45:
(I)t is clear tht under (Rule H approved by the 1995 Case Order), the developets "Net Cost" plus
the $800 per lot refud alost exactly equal the "Work Order Cost per lot," which in tu are
alost exactly equal to the average embedded cost of$1,232 computed by Sta Whether as a
result of siple coincidence or of thoughtfl consideration, under the existing Rule H taff
approved in (the 1995 Case Order), curt Company per customer investment in new distbution
closely approximtes its curent embedded cost.
APPELLANT'S BRIF - 26
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I time to reflec factors such as inflation. BCA understads that there wil be a cost difference
between what new customer pay for line extensions as compared to old cutomers. See Boise
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inflation. . . ."); see also R. VoL. III, p. 452 LL. 10-19 (Testimony ofR. Slaughter).
The 2009 Rule H Tarff allowance, however, results in new cutomer overayig for
distrbution facilities, in Idaho Power over-earng on its investment to sere those new
Customers, and in existing customers necessarly being subsidized in the rates they pay. The
2009 Rule H Tarff must be rejected for this reason. Also, allowance now bears no apparent
relationship to the actual cost to extend serce to new customers, or the Company's abilty to
recover those costs through its existing rates.
At least under the previous Rule H taff the allowances for residential line extenions (in
the form of an up-front terminal facilities allowance plus $1000-$1,300 or ternal facilities plus
an $800 per-lot refud) were "quite close to the approximate $1,000 to $1,200 (curent
Company) per customer embedded cost of distrbution." Tr. VoL. II, p. 239, LL. 13-18 and
Exhibit 205. Under Order 30955, line extension allowances no longer swing around any
objective anchor that futue customers, Commissions, or ths Court can hold to.
D. Order 30955 violates the standards established in Homebuilders and Boise
Water.
As discussed above, the Homebuilders and Boise Water Courts held that a regulated
public utilty may not unawfully discrminate between customers. Those Cours also held that,
APPELLAT'S BRIF - 27
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while not all rate differences are unlawfully discrminatory, a "difference in rates and charges
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must be justified by a corresponding classification of customer that is based on such factors as
cost of serce, quantity of resource use, differences in the condition of serce or in the time,
natue or pattern of the customer' use." Boise Water, 128 at 539,916 P.2d at 1264;
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Homebuilders, 107 Idaho at 420,690 P.2d at 355 (substantively same language as quoted). Ths
list of factors does not appear to be exclusive. Presuably it makes room for Commission
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consideration of potential impacts of a given charge or rate on new cutomers/homeowner, real
estate development, and the State's economy, as well as the potential subsidization of neW
customers by existig customer and vice-vera.
But Order 30955 does not explain why the new 2009 Rule H Tarff strcte should not
be viewed as unlawflly preferential or discriatory under any factors. Indeed, there is'no
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1.There are not substantial evdence in the record or suffcient findings to
justify a diffrence in rates as between customers inside and outside
subdivisions.
The Commission's decision here effectively classifies new customer into "subdivision"
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and "non-subdivision" classes and a large, but theoretically finite, number of small to large
subdivision classes, although the Commission never recognzes it. These implicit classifications
are not based on these Boise Water/Homebuilders factors; indee, the Commission did not even
mention these factors in its Order.
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Instead the Commssion stated: "(b Jecause the allowance is cacuated on a per
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transformer basis and not a per customer basis, the allowance inside and outside subdivisiollS
provides the same Company investment." R. VoL. IV, p. 668 (emphasis added). The
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Commission misses the mark. BCA does not dispute that under the approved new tarff the
Company will invest the same amount in each transformer outside a subdivision that it does in
each transformer inside a subdivision. But the anti-discrnation statute, I.C. 61-315, ths,
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Cour'sBoise Water and Homebuilders decisions, and the Commission's 1995 Case Order
correctly focu on equal treatment as among customer, not trformer. Unless justified under
the Boise Water/Homebuilders factors, new customers are entitled to have Idaho Power provide
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The Commission wrongly reasons that it is suffcient for Idaho Power to provide the same
investment per transformer.
.,.1 2.There are not substantial evidence in the record or suffcient findings to
justify a diffrence in rates as between new and existing customers.("'
d The Commission also does not justify the disparate treatment of new customer as
compared to existing customers using any of the Boise WaterlHomebuilders factors. Neither of
the Commission's Orders in this case acknowledges that a difference in rates or charges exists as
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between new and existing customer, let alone mentions the Boise Water/Homebuilders factors.
Apparently, the Commission did not address the Boise WaterlHomebuilders factors
because it interrets Homebuilders to mean that as a matter of law "there is no discrmination
between 'new' and 'old' customers when the Commission sets new line extension charges," R.
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Vol. IV, p. 669 (citing Homebuilders), thus avoiding the need to analyze the issue in any
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meaingfl way in light of facts in the record. Order 30955 specifically assers that the
Homebuilders Cour created an exception to analyzing rate discrimination under the Boise
Water/Homebuilders factors where "a non-recung charge is imposed upon new customer
becuse the serce they require demands an extension of existing distrbution or communcation
lines and a charge is imposed to offset the cost of the utility's capital investment."
~'"L Homebuilders, 107 Idaho at 421,690 P.2d at 356. R. Vol. N, pp. 669-70. But ths reading does
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not accuratelyorcompletely portay the Homebuilders holding.
Boise Water and Homebuilders both involved non-recurng charges that the Cour found
o to be unawfully discrminatory agaist new customers vis-à-vis existig customers. In both
cases, the Idaho Supree Cour held that differences in such charges "must be justified by a
corresponding classification of customers that is based on such factors as cost of serce,
Ll quatity of resource use, differences in the condition of servce or in the time, nature or patter
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of the customers' use." Boise Water, 128 at 539,916 P.2d at 1264; Homebuilders, 107 Idaho at
420,690 P.2d at 355 (substatively same language as quoted). The Commission has not
underaken any such analysis or justification in the instant Case.
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The Commission interprets BCA's argument below at leat implicitly, to be that the
Commission canot change its policy from the 1995 Case. R. Vol. IV, p. 668. The Commission
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t':",Ii.:,F:'tr~,.then cited ths Court for the proposition that "( s)o long as the Commission enters suffcient
findings to show that its action is not arbitrar and capricious, the Commission can alter its
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decisions." R. Vol. IV, p. 668 (citing Washington Water Power v. IPUC, 101 Idaho 567, 617
APPELLANT'S BRIEF - 30
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1 P.2d 1242 (1980)). BCA agrees that ths is the standard, but disagrees that the Commission has
come close to satisfyng it. In any case, had the Commission attempted to satisfy Washington
Water Power or justify the 2009 Rule H Tarffs disparate rate strcture under the Boise
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Water/Homebuilders factors, which it has not, the evidence in the record does not support the
different treatment of new customer and existing customer discussed above. See e.g., Tr. VoL.
II, pp. 123, L. 24 - p. 125, L., 10 (Said cross-exam).
3. There are not substantial evidence in the record or suffcient findings to
support the conclusion that the Rule H amendments somehow address
alleged "upward pressure on rates" or make "growth pay fòr itself:"
The record simply does not support the unequa treatment of new customers approved by
the Commission in ths cae. The Company ostensibly desires to "relieve one area of upwar
pressue" and believes its requested changes in allowances, parcularly the elimination of per-lot
refunds in subdivisions, "will take a step toward growt paying for itself," R. VoL. I, p. 61, by
shiftng more of the cost burden for new serce attachments and distrbution line instalations
from general ratepayers to new cutomers. R. VoL. I, p. 3. But this allegation is the sum extent
of the Company's case and evidence to support its requested changes.
Idaho Power made no attempt to rebut the extensive BCA testimony and Staff Comments
demonstrating that inflation, not growt, was the dnvig factor of increased distrbution facilities
costs, and that rapid growt only causes the effects of inflation to be felt sooner. Tr. VoL. II, p.
fJ 188, L. II - p. 191, 1. 7 (R. VoL. II, p. 219, L. 9 - p. 220, L. 20) and Exhibit 203 (Slaughter); R.
VoL. I, pp. 183-189 (Staff). Idaho Power did not attempt to rebut ths evidence concerg the
source of increased costs, perhaps because it acknowledges that the changes authorized by the
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2009 Rule H Tarff were not proposed by the Company to keep pace with inflation, but rather to
shift more of the cost of new distrbution facilities to new customer to free up capital so it ca
fud new system-wide, genertion and transmission facilities. R. VoL. I, p. 61 LL. 9-22 (Said).
12
See also R. VoL. I, p. 3 (purose of Application was to "shift() more of the cost burden. . . to
new customer"); Tr. VoL. II, p. 247 LL. 1 -9 (Slaughter testifyng "the practica effect quite
likely will be that the amount eaed on new distrbution plant in excess of embedded costs will
be applied to help pay the Company's other costs, including non-recoverable costs, generation
and/or transmission costs. . . .").
Idaho Power also offered no evidence to indicate what reduction in allowances actually
would be necessar to prevent the alleged upward pressue on rates owing to new customer line
extenions. Even the Commission Staff recognzed the Company's omission in its filed
Comments
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. . . Idaho Power has done no analysis to prove that growt is not paying for itself,
nor has the Company done any analysis to determine specifically what amounts of
allowances can relieve upward pressue on rates. . .. The Company concludes that
a reduction in Company investment in new distrbution plant is necessar and
proposes a reduction in allowances based strctly on policy without supportng
analysis.
12 Mr. Said testified:
Whle the provisions of Rule H have required some contrbutions in aid of constnction for new
distrbution facilties, there ar no requirments for contrbutions in aid of constnction for new
trmission or generation facilties which are also tyically required to serve customer growt.
Reducing the Company's new customer-related distrbution rate base by reducing allowaces and
refuds will relieve one area of upward pressur on rates and will tae a ste towar growt
paying for itself.
R. VoL. I, p. 61.
APPELLAN'S BRIF - 32
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i R. Vol. I, p. 168.
Idaho Power does not dispute if its investment in distrbution facilities to sere new
customers does not exceed its embedded cost, there will be no upward pressure on rates
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attbutable to that component of its costs:
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Q. (by Mr. Creamer) To the extent that the Company's investment in
distrbution facilties to sere new cutomer does not exceed its current
embedded costs for distrbution facilties, then the Company's cuent rates are
suffcient to recover the costs of the new facilties; would you agree with that?
A. (by Mro Said) For that paricular element of rates, yes. . . .
Q. Mr. Said, if the revenues that the Company receives for - from its new
customers are suffcient to recover the embedded costs that the Company has for
line extensions and distrbution facilities, then there is no upward pressure on
rates, is there?
A. Agai, for that component.
Tr., VoL. II, p. 121, LL. 1-8; p. 123, LL. 17-23 (Said Cross).
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The Commission's Orders make no note of these facts or deficiencies in Idaho Power's
record. And, despite the Commission's prior holding in the 1995 Case that "the amount of the
allowance is critical," R. VoL. IV, p. 640, neither the Commission's Orginal Order nor Order
30955 in ths case underake any crtique or analysis of the only facts going to this "crtical"
issue-the analysis of the relationship between embedded costs and appropriate allowances
presented by BCA's pre-filed testimony and in Staffs Comments. R. VoL. III, pp. 442-43
(Slaughter); R. VoL. I, pp. 168-70 (Staff. These Order do not in any way aid an understanding
of why the Commission would conclude that the disparte treatment it has authorized is
reasonable or justified.
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The Commssion's Orders do not analyze the extent to which ths disparate tratment will
affect pressure (upward or downward) on rates, let alone the extent to which Company
investment in distrbution facilities to sere new cutomers is creating upward pressure on rates.
The Commission merely recites Idaho Power's bare asserion that growt was not paying for
itself and concluded that "( d)ifferent circumstaces exist now than did in 1995." R. VoL. IV, p.
668. See also R. VoL. II, p. 323 (Orginal Order) ("By updatig line installation charges and
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increasing the allowances, the aiwropriate amount of contrbution will be provided by new
customers requesting these serces. These changes relieve one area of upward pressue on
rates." (emphases added)).
One simply canot deterine from the record that the $1,780 per transformer allowance
addresses the "fudamental principle of utility regulation" the Commssion claims it addresses-
that is, "(t)o the extent practicable, utility costs should be paid by those that cause the utility to
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incur the costs." R. VoL. IV, p. 650. Nor is there any apparent link beteen a flat $1,780 pe
transformer allowance and the extent to which this investment might actually achieve a goal of
makg growt pay for itself.
Absent evdence or fidings on these issues, the Commssion simply justifies the
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approved changes based on a summar conclusion that "( d)ifferent circumstances exist now than
did in 1995." R. VoL. IV, p. 668. But the Commission does not descrbe what those differences
might be or how they might have affected the Commission's analysis and decision.
APPELLAN'S BRIF - 34
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4. The Rule H amendments inappropriately shift system-related generation
and transmission costs to new customers.
The Commission cloak its decsion on the 2009 Rule H Tarff as involving only
"distrbution costs not resource (i.e. genertion and transmission) costs." R. VoL. IV, p. 669.
However, the record shows that Idaho Power sought to change the Rule H tarff so it could put
less money toward new cutomer' distrbution inastrcte and more money toward system-
wide facilties that benefit all customer. This matters because the Idaho Supreme Cour has held
that "(t)o the extent that the new hook-up fees are based on an allocation of the incremental cost
of new (generation and transmission) plant constrction required by growt. . . solely to new
customers, the fees unawfly discrimiate between old and new customer. . . ." Boise Water,
128 Idaho at 539, 916 P.2d at 1264.
As BCA's exper, Dr. Slaughter, testified:
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. . . the practical effect quite likely wil be that the amount eared on new
distrbution plant in excess of embedded costs, wil be applied to help pay the
Company's other costs, including non-recoverable costs, generation and/or
tranmission costs-new cutomers will be paying an unequal proporton of
these costs when compared with existing customers.
Tr., VoL. II, p. 247, LL. 1-9. Ths was not contradicted by Idaho Power, which conceded that if
the new customer could be required to pay more of the distrbution costs, it would help reduce
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upward pressure on rates attbutable to the Company's growing requirements for generation and
transmission assets:
Q. (By Mr. Creamer) In your response on reconsidertion, you stated that the
Company's position that because of the substatial investments that are to be
made in generation and transmission assets, the Company thnks it's reasonable
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for the Commission now to adjust its policy concering the level of Company
investment in line extensions; coect?
A. (by Mr. Said) Correct.
Q. And to require more investment from the new customer for those line
extension facilities than in the past?
A. That's correct.
Q. As a result, then, the new customer as they pay these costs for the line
extension for the distrbution facilities, that helps offset pressure on existing
cutomers' rates from genertion and transmission and other sources; isn't that
correct?
A. Well, it's all cutomers from that point forward in time, yes.
Tr. VoL. II, p. 288, 1. 9 - p. 289, 1. 2.
In effect then, the Company's below-embedded cost investment results in new customer
subsidizing the rates of existing customers, keeping them lower than they otherise would be
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because of the Company's growing system-wide generation and transmission costs. See City of
Aurora v. Public Utilties Comm 'n of State of Colorado, 785 P.2d 1280 (1990); Home Builders
Association of Metropolitan Denver v. Public Utilties Comm 'n of State of Colorado, 720 P.2d
552 (1986) (recognzing relationship betwee line extension allowances, company embedded
investment, and subsidization of rates).
E. The Commission improperly denied BCA's intervenor funding requests.
BCA made essentially the same arguents to the Commission as made here to the Cour
but the Commission rejected them and, for that reason, denied BCA,s unopposed Second
Intervenor Funding Request. However, as demonstrated in ths brief, BCA' s arguents have
mert and, as a result, the Commission should not have dened BCA's Second Intervenor
APPELLANT'S BRIF - 36
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Funding Request on grounds that BCA did not materally contrbute to the cae. R. VoL. IV, p.
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673. Nor should the Commssion have denied the Second Interenor Funding Request on
grounds that BCA,s advocacy did not address "issues of concer to 'the genera body of users or
consumer.''' Id. (quoting I.C. § 61-617 A). Finally, the Commission abused its discron in
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1. The Commission abused its discretion in finding that BCA did not
materially contribute to the proceedings below.
BCA contrbuted materal and relevant facts and arguments to ths matter. The
Commission's disregard for those facts and arguents in reaching its decision should not be
grounds for concluding that BCA did not materally contrbute to the case.
Even though the BCA did not prevail below, and even if it does not succeed on appeal, it
stil has materally contrbuted in all phases of the case. BCA provided the Commission with
comments and direct testimony concerng Idaho Power's Application. Puruant to the
Commission's direction durg the reconsideration phase, BCA also developed and presented at
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a techncal hearng additional direct testimony, specifically aimed at descrbing what an
appropriate allowance should be-Le., one based on embedded costs that could be recognized
through a refund to appropriately allocate risk betwee the Company and developers and with
new customers bearng the costs above the embedded cost (including additional cost attbutable
to inflation) of new distrbution facilities. BCA fully parcipated in the examation of
witnesses at a technical hearng and submitted a post-hearng brief at the Commission's request.
,j APPELLANT'S BRIEF - 37
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All ofBCA's efforts materally contrbuted to the case, paricularly those effort done at
the direction of the Commission. Where a pary parcipates in ways specifically requested by
the Commssion, the Idaho Supreme Cour has held that the Comiission should consder that
paricipation as materally contrbuting to the case. See Idaho Fair Share, 113 Idaho at 963-64,
751 P .2d at 1 1 1 -12 (remanding with instrctions to the Commssion to consider for interenor
fuding the interenor's time spent responding to the Commission's request for information).
The Commission faults BCA for "recycling" arguents and reasoning from the 1995
Case. R. VoL. IV, p. 673. This, however, misrepresents BCA,s arguents from then and now.
The Commission is mistaken in its obseration that it had not been peruaded by BCA's
arguents in the 1995 Case. There, BCA was successful in preventig the complete elimination
of Company allowances for line extensions, in obtaining recognition of the need for the
Company to make a minimum level of Company investment (equa to embedded cost) so as to
provide equal treatment of new and existing customers, and in obtaining the Commission's
recognition of the potential economic impact on new customer if they are required to pay too
great a portion ofline extension costs. See generally R. VoL. IV, pp. 626-45. It may be tre that
much of BCA' s case today resembles the 1995 Case, but BCA canot be faulted for using
arguents and facts from the prior proceeing when Idaho Power makes another run at
eliminating its investment in facilities to sere new customer. In fact, BCA's arguents are
even more relevant in the current proceeding because here they were presented in support of,
maintaining the precedent obtained in the i 995 Case.
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Arguably, the Commission's interretation of the interenor fuding statute, I.C. § 61-
617 A, creates a higher standard for awarding interenor fuding than contemplated by the
statute. Under the Commission's interpretation, a pary only is entitled to interenor fuding if
they prevail on an issue. This goes too far; one need not prevail to materally contrbute. The
Commission's heightened standard does not promote the policy of the intervemor fuding
statute, which is "to encourage parcipation by interenors by awardig all or a porton of the
costs of intervention." Idaho Fair Share, 113 Idaho at 962, 751 P.2d at 110.
The Commission's finding that BCA did not materally contrbuteis'oot supported by the
record or prior Commssion decisions and is an abuse of discretion.
2. The Commission abused its discretion in finding that BCA wiled to raise
"issues o(concern to 'the general body o(users or consumers. '"
BCA,s arguments that the 2009 Rule H Tarff is unawfully discrminatory conce all
new and existing residential user and consumer. As the Commission obsered in the 1995
Case, in establishing the proper Company investment in new distrbution facilities "the amount
of the allowance is crticaL." R. Vol. IV, p. 640. This is because, depending on how the
allowance relates to the Company's embedded investment recoverable through rates, new or
existing customers may be affected in the overall rates and costs they pay for the same servce.
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In addition, the Commission in the 1995 Case had no trouble finding that BCA raised
issues of conce to the general body of user or consumer, where BCA opposed the elimination
of allowances/refunds the Company had sought then and seeks today. R. VoL. IV, p. 644. The
Commission's finding that BCA did not advocate issues of concern to the general body of users
APPELLANT'S BRIF - 39
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and consumer is not supported by the record or prior Commission decisions and is an abuse of
its discreton.
3. The Commission abused its discretion in denying BCA 's requests for
intervenor funding for BCA 's effrts made prior to the Original Order
The Commission abused its discretion in denyig the pre-Orgial Order porton of the
Second Interenor Funding Request. The Commission did not recognze the issue-whether
BCA was entitled to interenor fuding for the entire proceeding even though its First Interenor
Funding Request was denied-as one of discretion, it did not act within the boundares of its
discretion or apply the applicable legal standards, and it did not reach its decision though an
exercise of reason. See Johannsen v. Utterbeck, 146 Idaho 423, 429, 196 P.3d 341,347 (2008)
(descrbing the abuse of discretion standard).
In denying the Second Interenor Funding Request, the Commission did not recognize
that it had any discretion to consider BCA,s pre-Original Order effort. Rather, without
explanation, the Commission concluded that the pre- and post-Original Order proceedings were
separate proceedings. Nothing in the Commission's Rules of Procedure or governing statutes
suggests that a petition for reconsidertion institutes a separate proceeding from the original.
Tellngly, the reconsideration porton of a proceeding even shares the same caption as the
original. It thus makes more sense to treat the reconsidertion porton of a proceeding as an
extenion of the original proceeding rather than an entirely new proceeding. Viewed in this way,
Rule 164' s reuirement that requests for interenor funding be fied within fouree days after
the last action in a "proceeding" meas that an intervenor could permssibly request interenor
APPELLANT'S BRIEF - 40
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i fuding for an entire proceeding by filing its request within fouree days after the last action on,
reconsideration. In ths case, BCA timely fied its Second Interenor Funding Request with
ths tiefre.
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The Commission, however, did not entern ths thought and, instead, summarly
concluded that it could not grant BCA,s request for pre-Orginal Order interenor fuding made
in its Second Interenor Funding Request. The Commission did not recogne its discretion in
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makg this determnation and, therefore, did not act within the boundares of its discretion or- --
,. reach its decision though an exercise of reason. Accordingly, the Commission abused 'its
discretion in sumarly denying the pre-Orginal Order portion of BCA' s Secnd Interenor
Funding Request.
F. BCA is entitled to an award of attorney fees and costs on appeal.
BCA has been required to retain the serces of counsel to bring ths appeal and is
entitled to recover its attorney fees and cost on appeal as private attorney general and/or
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pursuant to Idaho Code Section 12-117 and Idaho Appellate Rules 40 and 41.
The private attorney general doctrne was developed to allow for an award of attorney
fees when an action meets thee specific requirements: 1) great strength or societal importance of
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the public policy indicated by the litigation; 2) the necessity for private enforcement and the
magnitude of the resultant burden on the plaintiff; and 3) the number of people standing to
benefit from the decision. Heller v. Cenarrua, 106 Idaho 571, 578, 682 P.2d 524, 531 (1984).
This appeal has great strengt and societal importce in that it seeks to have our governent
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offcials (i.e. the Commission) perorm their duties so as to protect the public from
APPELLANT'S BRIF - 41
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discrmiatory practices by the state's largest public utility and, perhaps equally as important, to
provide a reasoned analysis and explanation for its decisions so that the public undertands the
basis for decisions that have signficant impact on their lives and livelihood. Private
enforcement by BCA was necessary because no other person or entity took up this fight against
Idaho Power's and the Commission's discriinatory rates. IfBCA had not engaged in ths
lengty and fiancially burdensome effort in the interest of not just its developer member but
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all new Idaho Power customer, no one else would have. And many people-indeed, all new
-Idaho Power customer-stad to benefit from BCA's efforts to have Idaho Power contiue to'
provide them the same level of investment it provides existing customer. BCA, thus, is entitled
to its attorney fees on appeal under the private attorney general doctre.
BCA also is entitled to an award of attorney fees under Idaho Code § i 2-117 which, in a
proceeding involvig a state agency such as the Commission, requires the Cour to "award the
prevailing par reasonable attorney's fees, witness fees and reasonable expenses, if the court
finds that the pary against whom the judgment is rendered acted without a reasonable basis in
fact or law." The purose ofI.C. § 12-117 is "to serve as a deterent to groundless or arbitrar
iI action and to provide a remedy for persons who have borne unfair and unjustified financial
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burdens defending against groundless charges or attempting to correct mistakes agencies should
never have made." Neighborsfor a Healthy Gold Fork v. Valley County, 145 Idaho 121, 138,
176 P.3d 126, 143 (2007).
BCA is entitled to an award of its reasonable attorney fees because the Commission did
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not act with a reasonable basis in fact or law in approving the discratory charges imposed on
APPELLAN'S BRIF - 42
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new customer in Order 30955. Desite BCA's effort, the Commission did not address relevant
Idaho Supreme Cour precedent or make findings suffcient to justify its approval of Idaho
Power's Rule H tarff amendments. BCA incurred substatial expense and hardship in an
attempt to correct the Commission's mistakes below, and believes it is appropriate for this Cour
to deter the Commission from acting arbitrarly in the futue.
BCA recognzes that the Idaho Supreme Cour in Owner-Operator Independent Drivers
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Ass'n, Inc. v. Idaho Public Utilities Comm'n, 125 Idaho 401, 871 P.2d 818 (1994), declined to
awar-atomeyfees.againstthe Commssion on the ground that the Commission is a "legislative
agency" and therefore not a "state agency" subject to Section 12~ 117. BCA nevereless
requests its attorney fees under Secton 12-1 17 in case the Court wishes to revisit that decsion.
BCA believes the Commission is an "agency" empowered by state law to underake, and does
underake, quasi-judicial and quasi-legislative fuctions in the same maner as other agencies
enacting rules and deciding contested cases as against itself and between parties, and therefore, it
'.1 should not be imune from attorney fees where its actons are improper. BCA notes that, unless...:4
the Cour provides an avenue to recover attorney fees against the Commission under ths statute
or the private attorney general doctre (as discussed above), it would appear that no avenue
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exists to obtain such an award against the Commission.
Finally, BCA seeks an award of costs under I.A.R. 40, which authorizes the Court to
award costs to the prevailing par.
Accordingly, on the grounds set forth above, BCA respectfully requests an award of
attorney fees and costs.
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V. CONCLUSION
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For the foregoing reasons, Order 30955 should be set aside and the Company's
Application denied with respect to the amended line extension charges, allowances, and refuds.
In addition, BCA is entitled to interenor fuding to the full extent allowed by statute. BCA
respectflly requests its attorney fees and costs on appeal.
DATED ths 24th day of May, 2010
GIVENS PURSLEY LLPBY~c?~
Michael C. Creamer
Attorneys for Appellant The Building Contrctors
Association of Southwester Idaho, Inc.
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APPELLAN'S BRIF - 44
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CERTIFICATE OF SERVICE
I hereby cerfy that on this Z l.;:tõáy of May, 2010, I caused to be sered a tre and
correct copy of the foregoing by the method indicated below, and addressed to the following:j
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Weldon Stutzan
Krstine A. Sasser
Deputy Attorneys General
Idaho Public Utilties Commission
472 W. Washington
PO Box 83720
Boise, ID 83720-0074
krs.sasserCBuc.idaho. gov
Lawrence G. Wasden
Attorney General
Statehouse
PO Box 83720
Boise,ID 83702-0010
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Lisa D. Nordstrom
Baron 1. Kline
Idaho Power Company
1221 W. Idaho St.
PO Box 70
Boise,ID 83707-0070
Inordstromcgidahopower.com
bklinecgidahopower.com
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Jea D. Jewell
Commission Secretar
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
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APPELLAN'S BRIF - 45
U.S. Mail, postage prepaid
Express Mail
Hand Deliver
Facsimile
Electronic Mail
U.S. Mail, postage prepaid
Express Mail
Hand Deliver
Facsimile
Electronic Mail
U.S. Mail, postage prepaid
Express Mail
Hand Deliver
Facsimile
Electonic Mail
U.S. Mail, postage prepaid
Express Mail
Hand Deliver
Facsimile
Electronic Mail
Michael C. Creamer