20100408notice_of_petition_order_no_31036.pdf

Office of the Secretary
Service Date
April 8 2010
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF
INTERMOUNTAIN GAS COMPANY FOR A
DECLARATORY ORDER RELATING TO
THE RESALE OF NATURAL GAS NOTICE OF PETITION
CASE NO. INT-10-
NOTICE OF
MODIFIED PROCEDURE
ORDER NO. 31036
On March 4 2010, Intennountain Gas (a subsidiary ofMDU Resources Group) filed
a Petition seeking a declaratory order from the Commission. More specifically, the utility seeks
an order from the Commission stating that the Commission lacks "economic jurisdiction of the
resale of natural gas by third party non-utilities for use in motor vehicles." Application at 1 , 2.
Intennountain requests that its Petition be processed under Modified Procedure. Id. at 4.
THE PETITION FOR DECLARATORY ORDER
A. Background
Intennountain Gas states that it has been approached by third-party non-utility
organizations requesting that Intennountain sell natural gas to them "for their resale for use in
motor vehicles for transportation purposes.Id. at 3. For example, Intennountain envisions that
non-utility third parties would "compress" natural gas (CNG) and resell the CNG to other
persons as fuel for their motor vehicles. The Company maintains that fleets of heavy duty
vehicles appear to be the largest growing segment of the CNG market. "Currently, there are a
number of western states that pennit public CNG fueling stations including, but not limited to
California, Washington, Utah and Wyoming.Id.Intennountain believes that there are
economic and environmental benefits for its customers and the State by encouraging the use of
CNG as a transportation fuel. Id.
B. Legal Support for the Petition
In its Petition, Intennountain Gas states that it is not aware of any Idaho Court
decision which has addressed the resale of natural gas as a transportation fuel. The Company
maintains that the Idaho Public Utilities Law (Idaho Code 99 61-116, 61-117, 61-129) does not
NOTICE OF PETITION
NOTICE OF MODIFIED PROCEDURE
ORDER NO. 31036
specifically address the resale of natural gas. Application at 3.
by Intennountain Gas in its Petition are set out below.
The Idaho statutes referenced
61-116. GAS PLANT. The tenn "gas plant" when used in this act includes all
real estate, fixtures and personal property owned, controlled, operated or
managed in connection with or to facilitate the production, generation
transmission, delivery or furnishing of gas (natural or manufactured) for light
heat or power.
61-117. GAS CORPORATION. The tenn "gas corporation" when used in
this act includes every corporation or person, their lessees, trustees, receivers
or trustees appointed by any court whatsoever, owning, controlling, operating
or managing any gas plant for compensation, within this state, except where
gas is made or produced on and distributed by the maker or producer through
private property alone solely for his own use or the use of his tenants and not
for sale to others.
61-129. PUBLIC UTILITY. The tenn "public utility" when used in this act
includes every common carrier, pipe line corporation, gas corporation
electrical corporation telephone corporation, water corporation, and
wharfinger, as those terms are defined in this chapter and each thereof is
hereby declared to be a public utility and to be subject to the jurisdiction
control and regulation of the commission and to the provisions of this act:
provided, that the tenn "public utility" as used in this act shall cover cases
both where the service is performed and the commodity delivered directly to
the public or some portion thereof, and where the service is performed or the
commodity delivered to any corporation or corporations, or any person or
persons, who in turn, either directly or indirectly or mediately or immediately,
performs the services or delivers such commodity to or for the public or some
portion thereof.
The Company did point to one Idaho Commission case and one California PUC case
to support its Petition. In Order No. 26514, this Commission found that Idaho Power s leasing
of these "dark" optic-fiber cables was not the provision of a public utility service as defined by
Title 62.1 Case No. IPC-96-9. In the California case, the California PUC ruled that persons
operating service stations for the resale of compressed natural gas for vehicular use, other than
public utilities, are not subject to rate regulation by the California Commission. In Re Pacific
Gas and Electric Company, 124 PUR 4th 107 at pp. 125 126 (1991).
I The tenn "dark fiber" nonnally refers to installed fiber optic cable that is not electronically activated for the
transmission of infonnation. In Order No. 26514, the Commission found that leasing Idaho Power dark fiber to
Albertson s and the City of Boise does not constitute a "telecommunications service" as defined by Idaho Code
62-603((13)).
NOTICE OF PETITION
NOTICE OF MODIFIED PROCEDURE
ORDER NO. 31036
Intermountain Gas also notes that Section 404 of the Energy Policy Act of 1992 may
restrict the Commission s jurisdiction over the resale of natural gas. In particular, Section 404(b)
provides that:
The transportation or sale of natural gas by any person who is not otherwise a
public utility, within the meaning of State law, . . . to any person for use by
such person as a fuel in a self-propelled vehicle, shall not be considered to be
transportation or sale of natural gas within the meaning of any State law
regulation or order in effect before January I , 1989. This subsection shall not
apply to any provision of State law. . . to the extent that such provision has as
its primary purpose the protection of public safety.
Application at 4 citing 15 U.C. 9 717. Intermountain asserts that Idaho Code 99 61-116 61-
117, and 61-129 were all enacted before January I , 1989. As part of its declaratory order
Intermountain asks that the Commission continue to regulate the safety of natural gas facilities
operated by Intermountain, but only to the point where Intermountain s facilities connect to the
customer s metering device. Id. at 4.
Intermountain does not envision any changes in its existing rate tariffs. If its Petition
is granted, Intermountain proposes to sell natural gas to resellers utilizing its existing tariffs.
Intermountain states that it has brought the Petition to the attention of persons who
have expressed an interest in reselling natural gas and to those parties regularly intervening in
Intermountain Gas cases. Id. The service list accompanying the Petition indicates that the
Petition was served on nine persons or entities. Although the Petition indicates that it has been
brought to the attention of all affected utilities, the service list does not indicate that A vista was
served with a copy of the Petition.
NOTICE OF MODIFIED PROCEDURE
YOU ARE HEREBY NOTIFIED that the Commission has determined that the
public interest may not require a formal hearing in this matter and will proceed under Modified
Procedure pursuant to Rules 201 through 204 of the Idaho Public Utilities Commission s Rules
of Procedure IDAPA 31.01.01.201 through .204.The Commission notes that Modified
Procedure and written comments have proven to be an effective means for obtaining public input
and participation.
NOTICE OF PETITION
NOTICE OF MODIFIED PROCEDURE
ORDER NO. 31036
YOU ARE FURTHER NOTIFIED that any person desiring to state a position on this
Petition may file a written comment in support or opposition with the Commission within
twenty-eight (28) days from the service date of this Notice. The comment must contain a
statement of reasons supporting the comment. Persons desiring a hearing must specifically
request a hearing in their written comments. Written comments concerning this Petition shall be
mailed to the Commission and Intermountain Gas at the addresses reflected below:
Street Address for Express Mail:
Stephen R. Thomas
Moffatt Thomas Barrett
Rock & Fields, Chartered
101 S. Capitol Boulevard, Suite 1000
Boise, ID 83702
Mail: srt~moffatt.com
Commission Secretary
Idaho Public Utilities Commission
PO Box 83720
Boise , ID 83720-0074
472 W. Washington Street
Boise, ID 83702-5918
Katherine Barnard
Manager Regulatory Affairs
Intermountain Gas Company
222 Fairview Ave. N.
Seattle, W A 98109-5312
E-mail: kathie. barnard~cngc.com
All comments should contain the case caption and case number shown on the first page of this
document.Persons desiring to submit comments via e-mail may do so by accessing the
Commission s home page located at www.puc.idaho.gov . Click the "Comments and Questions
icon and complete the comment form using the case number as it appears on the front of this
document. These comments must also be sent to Intermountain Gas at the e-mail addresses
listed above.
YOU ARE FURTHER NOTIFIED that if no written comments or protests are
received within the time limit set, the Commission will consider this matter on its merits and
enter its Order without a formal hearing. If written comments are received within the time limit
set, the Commission will consider them and, in its discretion, may set the same for formal
hearing.
YOU ARE FURTHER NOTIFIED that the Petition has been filed with the
Commission and is available for public inspection during regular business hours at the
Commission offices.The Petition is also available on the Commission s web site at
www.puc.idaho.gov by clicking on "File Room" and then "Gas Cases.
NOTICE OF PETITION
NOTICE OF MODIFIED PROCEDURE
ORDER NO. 31036
YOU ARE FURTHER NOTIFIED that all proceedings in this case will be held
pursuant to the Commission s jurisdiction under Title 61 of the Idaho Code and specifically
Idaho Code 9 61-129. See also Procedural Rule 101 , IDAPA 31.01.01.101. The Commission
may enter any final Order consistent with its authority under Title 61.
YOU ARE FURTHER NOTIFIED that all proceedings in this matter will be
conducted pursuant to the Commission s Rules of Procedure, IDAPA 31.01.01.000 et seq.
ORDER
IT IS HEREBY ORDERED that persons desiring to comment on Intermountain Gas
Company s Petition for a Declaratory Order shall file written comments with the Commission no
later than twenty-eight (28) days from the service date of this Order.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
grJ..
day of April 20 I O.
fJ:~D. KEMPT , P SIDENT
MARSHA H. SMITH, COMMISSIONER
~'-~ ~
ATTEST:
Commission Secretary
bls/O:INT-IO-
NOTICE OF PETITION
NOTICE OF MODIFIED PROCEDURE
ORDER NO. 31036