20150728Consent Agreement.pdf

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF WASHINGTON &
IDAHO RAILWAY SPECIAL REGULATORY
FEE PURSUANT TO IDAHO CODE $$ 61-
1001 THROUGH 61-1005
CASE NO. WAI.R-15-01
CONSENT AGREEMENT &
ORDER
In the interest of a speedy and juclicious settlernent of the above-captioned nratter, consistent rvith
the publio interest, statutoly requirernents and rcsponsibilities of the Idaho Public Utilities
Cornrnission ("Commission"), the Staff of the Idaho Public Utilities Cornrnission ('StafP'), and the
Washington & Idaho Railrvay ("WAI") enter into the follorving Consent Agreenreut ("Agreernent") as the
final disposition of this rnatter upon the follorving tenns:
RECITALS
1. WAI is regional rail shipper headquartered in Rosalia, Washington, and operates
in portions of Washington, Idaho, and Montana. The Railroad is a "raihoad corporation," and a
"comnloncamier"asdefinedbyldaho Code$$61-110,61-lll,61-ll3 and6l-129.Assuch,the
Railroad is a public utility subject to the jurisdiction of the Commission.
2. WAI has rcad and understands the terms of this Agreement, and voluntarily enters
into this Agleement voluntarily and not under coercion or duress. WAI ackrrowledges that it has
had the opportunity to eonsult with an attomey in this matter.
3. WAI trnderstands that it has the right to a hearing concerning the above-captioned matter
at rvhich WAI could present evidence and oross-examine rvitnesses. By entering into this Corrsent
Agreenrenf, WAI knorvingly and voluntarily relinquishes all rights to strch a healirrg, as rvell as any lights
ofappeal.
4. WAI understands that this Agreement or any part of the Agreenrent may be considered in
any potential ftrturc disciplinary action in lront of the Conrrnission.
5. WAI undeistands that acceptance of this Agreernent does not preclude any other agency,
subdivision, or officer of this State fiour commencing a separate administlative, civil, or criminal actiou
relating to corrduct recited in this Agreeurent.
6. WAI understands that this Agreement deals with Case No. WAI-R-I5-01 involving
allegations that WAI failed to file annual returns of its gross intrastate revenues in Idaho, and failed to
CONSENT AGREEMENT & ORDER
pay annual regulatory fees to the Comrnission as rcquiredby ldaho Code $$ 6l-1001-05. All
admissions rnade by WAI in this Agreement are rnade solely for the final disposition of this
matter.
7. WAI acknonledges and agrees that, upon execution of this Agreement, it may not
revoke its acceptance, or make any modifications to the Agreement,
8. WAI undetstands that the Agreement is a public record that may be publicly
disserninated as a formal action of the Commission, and shall be reported as otherwise required
by Idaho law.
s rrPUI,AX,pJL.H4 gTS" AIIB LAw
9, Idaho Code $ 61-1003 requires that, "[o]n or before April 1st of each year, each
public utility ancl raih'oad corporation subject to the jurisdiction of the commission, shall file
rvith the commission a return verified by an officer or agent of the public utility or raihoad
corporation involved, showing its gross operating revenues fi'om its intrastate utility or railroad
business in Idaho for the prrceding calendar year duling which it carried on such intrastate utility
or railroad business."
I0. Iclaho Cade $61-1001 requites that "[e]ach railrrcad corporation, subject to tlie
jurisdiction of the conunission, and subject to the provisions of this act, shall pay to the
comrnission in each year, a special regulatory fee in such amount as the commission shall find
and determine to be necessaly, togetlier with the amount of all other fees paid or payable to the
cornmission by each such public utility and railroad corpolation .,.." See slso lck&o Code $ 6l-
1005,
I l. Once a raihoad has reported its intrastate operating levenues for the previous
caletrdar year; the Comnrission calculates the "proportional assessnrent that all raih'oad
corporations , . . shall bear , . . in proportion to their respective goss opel'ating revenues derived
fi'onr intrastate [raihoad] business in Idaho fol the preceding calendar year . . . ." Idcrho Code $
61-1004. The Commission then notifies each railroad of it assessed regulatory fee no laler than
May 1 of each year,Idaho Code $ 6l-1005. The regulatory fee may be paid to tlie Commissinn
in equal semi-arurual installnrents dne May 15 and November 15 of each year lcl.
CONSENT AGREEMENT & ORDER
12. Comrnission Staff has alleged, and WAI acknowledges, that WAI failed to timely
file its annual revenue statements for calendar years 2013 and 2015. Staff has ftrrther alleged,
and WAI acknowledges, that WAI failed to pay it assessed regulatoly fees for calendar years
2012, 2013, 2014, and 201 5.
13. WAI's failure to file its statutorily required anmral verified retum in 2013 and in
2015 violates ldaho Code $ 6l-1003, rvith each "failure to file" creating a distinct and unique
cause of action. See ldaho Code $ 6l-707 (evely violation "shall be deemed a separate and
distinct offense").
14. WAI's failure to pay its statutorily required amual regulatory fees to the
Connnission for years 2012,2A13,2014, and 2015 violates ldctho Code $ 6l -1005, with each
"failure to pay" creating a distinct and unique cause of action. See ldaho Code $ 6l-707 (every
violation "shall be deemed a separate and distinct offense").
15. On June 29,2015,the Comrnission issued and served an Order to Show Cause on
WAI requiring that it show cause why it has failed to cornply with Cormnission revenue
rcpolting requirements and why it has failed to pay its statutory regulatory fees. The Order
required that WAI appear before the Comrnission on July 21,2015. WAI failed to appear at that
hearing.
16. Prior to the show cause healing, on July 20,2015, WAI filed with the
Commission its 2013 and 2015 reverlue staternents. With those statements, Commission Staff
was able to calculate that proper fee WAI owed the Commission.l
17, In summary, WAI failed to pay its regulatory fee of $947.31 in2012; failed to pay
its regtrlatory fee of $1,072.48 in20l3; failed to pay its regulatory fee of $776,41 in 2014; and
failed to pay even half of its 2015 regulatory fee of $592.18. Further, as a result of failing to pay,
WAI has incured intercst in the amount of $231.20. Accordingly, WAI is cuuently $3,619.58 in
an'eal's to the Commission.
18. Idaho Code $ 6l-706 authorizes the irnposition of a civil penalty of $2,000 on any
public utility that fails to comply with ldaho's public utilities laws.
I Previously, Staflalleged that WAI failed or refirsed to pay a regulatory fee of $50 in 2013, ancl $50 in 2015.
However, $50 represents a statutory miniututn because Commission staffhad been unable to calculate an accurate
amount due to the Company's failure to subrnit annual verified returns. See ldaha Code 6l-1004
CONSENT AGREEMENT & ORDER
SANCTIONS
19. Based upon the foregoing facts, WAI and Conimission Staffagree as follorvs:
a. WAI shall pay the Commission all outstanding fees and interest, totaling
$3,619,58 by Friday, July 24,2015.
b, WAI shall subrnit to a financial records audit by Commission Staff no later
than December' 31, 2015;
c. WAI shall pay a civil penalty of $12,000, with $2,000 payable by October l,
20l5,and $10,000 withheld, contingent upon the following:
i. WAI shall file its 2016 annual r€venue statement, as described in
Idsho Code $ 61-1003, on or before April 1, 2016; and
ii. WAI shall pay its full 2016 amual assesslnent, as dsscribed in ldcrho
Code $ 61-1005, onorbeforeMay 15,2016.
20, If WAI fails to timely file its 2016 revenue staternent, fails to timely pay its 2016
assessment, ol otherwise violates this Agreement, WAI consents to the imposition of the
withheld $10,000 civil penalty.
APPROVAL OF AGRDEMENT
21. WAI unclerstands that this Agreement shall not become effective unless and until
it is adopted by the Commission.
22. Once this Agreement is fully executed, the Staffs attoney shall present tlie
Agreement to the Commission with a lecommendation fot appruval.
21. The Comrnission may accept, modify with WAI's approval, or reject this
Agreement. Ifthe Agreement is rejected, prosecution of this matter will continue and any
stipulated facts shall be regarded as null and void.
24. This Agreement is entire agreement between the parties, and WAI is not relying
on any other agreement ol represeutation of any kind, verbal or otherwise.
I have fully read the above Agreement and have had the opportunity to discuss it
with legal connsel. I understand that by its tenns I am waiving certain rights
accordecl rne uncler Idaho larv. I unclerstand that tlie Corruuission r)ray approve the
Agreeurent as proposed, approve it subject to specified changes, ol reject it. I
CONSENT AGREEMENT & ORDER
understand that, if approvcd as proposed, the Commission will adopt this
Agreernent by Order according to the aforcmentioned terms, and I agee to adhere
to those terms.
DArED,r,ir21 aw or *!f,-,zors,
WASHINGTON & IDAHO RAIT,WAY
I rcconunend that the Con'rmission snter an Order adopting this Agreement.
DA,ED this*av c
/*"-zor''
,,fif,,,JJHiDAHo
puB,.rc urrlrrr's
CONSENT AGREEMIINT & ORDER
ORDD,R
The Cornrnission finds the foregoirrg Consent Agreement just and reasonable, and in
confotnrance with Comrnission Rule 58, which states that "consent agreements are intended to
require compliance with existing law." Thus, we find it appropriate to adopt this Agreement as
the decision of the Commission.
Accordingly, IT IS HEREBY ORDERED that Washington and Idaho Railway
comply with the provision of this Consent Agreement as set forth above.
This is a FINAL ORDER adopting a consent agrcement.
DONE by Orderof the Idaho Public Utilities Commission at Boise, Idaho this day
of ,2015.
PAUL KJELLANDER, PRESIDENT
KRISTINE RAPER, COMMISSIONER
ATTEST:
Jean D. Jewell
Commission Secretary
CONSENT AGREEMENT & ORDER