ORDER NO. 95-1130

ENTERED OCT 24 1995

THIS IS AN ELECTRONIC COPY

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UE 79

DISPOSITION: APPLICATION FOR RECONSIDERATION GRANTED

On June 23, 1995, the Commission issued Order No. 95-637 which adopted a stipulation between PUC staff and Portland General Electric Company (PGE) dated March 7, 1995. The stipulation is described in the order as a "Revised Stipulation for WNP-3 Settlement Exchange Agreement and Western Area Power Administration Sale Contract between staff and Portland General Electric (PGE)."

On August 28, 1995, the Utility Reform Project (URP) filed an application for reconsideration of the order. PGE and staff filed replies.

Background

Order No. 91-186 in UE 79 adopted a stipulation between staff and PGE which, among other matters, provided for a stream of credits to ratepayers relating to the effects of an agreement involving PGE and the Bonneville Power Administration (BPA). That agreement, called the WSA/WAPA, provided that BPA would deliver power to PGE to make up for the loss to PGE of power from the terminated WNP#3 nuclear plant. It also provided that BPA could recall its energy deliveries. The stream of credits provided for in the stipulation adopted in Order No. 91-186 was designed to compensate PGE’s ratepayers for potential increases in costs which could result if PGE were forced to make firm resource acquisitions to meet its increased load obligations under the WSA/WAPA agreement. The credits were to begin in the year 2001 and end in 2015. They totaled approximately $42.3 million.

The UE 79 stipulation also provides, however, that the stream of credits would be discarded or discontinued if PGE secured an alternative means of meeting the potential obligation to BPA under the WSA/WAPA. In December 1994, PGE entered into a power sales contract with Powerex which is intended to provide a means of meeting PGE’s potential obligation under the WSA/WAPA and thus meet the terms of the UE 79 stipulation for discontinuing the stream of credits.

In the order for which reconsideration is sought, Order No. 95-637, the Commission concluded that the Powerex contract "meets the terms of the stipulation in

UE 79, . . ." That conclusion ends PGE’s obligation to provide the stream of credits beginning in 2001.

The Application

URP raises several issues in its application. For the most part, the claims center on allegations that PGE and the Commission did not provide required notice and opportunity to be heard prior to Commission consideration of the revised stipulation. The statutes and administrative rules cited in support of these claims include ORS 757.210 (hearing to establish new schedules); 756.568 (amendment of orders); 756.500-756.610 (complaint, hearing, and appeal process); and OAR 860-22-017 (notice in general rate cases); and other administrative rules relating to tariff filings and the Commission’s interest in encouraging the public to be heard. Additionally, URP claims that the Commission "failed to conduct the rulemaking proceeding required by PURPA to establish rules for adequate notice of rate changes to ratepayers."

URP asks that the Commission "require PGE to provide notice to all ratepayers that the company is seeking an order from the Commission, modifying OPUC Order No. 91-186 and allowing PGE to retain a sum of approximately $42.3 million as of 2001 that would otherwise be credited to ratepayers under the terms of OPUC Order 91-186. The Commission should then conduct a proceeding that complies with the procedural requirements outlined [under the various provisions noted in the previous paragraph]."

The Replies

Staff denies that the notice given by the Commission was inadequate. It nevertheless expresses no objection to reconsideration and a hearing "to allow URP to present relevant evidence." It asks that the reconsideration and hearing be "solely for the purpose of determining whether the PGE/Powerex contract meets the terms of the UE 79 Stipulation."

PGE also denies URP’s claims regarding notice. It opposes the application. If, however, the application is granted and a hearing provided, PGE requests that the issues be limited to the following: "Is the Revised Stipulation consistent with the original Stipulation in UE 79?"

OPINION

OAR 860-14-095 (3) permits reconsideration or rehearing if the applicant shows that one of the following exists:

(a) New evidence which is essential to the decision and which was unavailable and not reasonably discoverable prior to issuance of the order;

(b) A change in the law or agency policy since the date the order was issued, relating to a matter essential to the decision;

(c) An error of law or fact in the order which is essential to the decision; or

(d) Good cause for further examination of a matter essential to the decision.

We conclude that (d) provides a basis for granting the application in this case. It is possible that URP may have information that may bear in some significant way on the issue dealt with in Order No. 95-637. Accordingly, we will direct that a hearing be held to take evidence on that issue.

The requests by staff and PGE that the scope of the hearing be limited is appropriate. The conclusion in Order No. 95-637 is that the revised stipulation should be adopted because the contract involved meets the terms of the stipulation in UE 79, which was adopted in Order No. 91-186. Reconsideration of the order must therefore be limited to that issue: whether the contract and other terms of the revised stipulation meet the terms of Order No. 91-186. Other subjects, such as URP’s claim that the Commission is out of compliance with PURPA will not be considered.

The Commission is not persuaded by URP’s claims regarding notice and opportunity to be heard. We are not convinced, first of all, that the decision in question, given its speculative impact on rates, is a "rate or schedule of rates stating or establishing a new rate or schedule of rates or increasing an existing rate or schedule or rates, . . ." (ORS 757.210) or a "general rate revision" (OAR 845-22-017). The procedural requirements set out in those provisions may thus be inapplicable to this case. Even if it is assumed that one or both of those provisions do apply, we do not believe any flaw exists in the procedure followed. The decision in Order No. 95-637 simply involves the fulfillment of a condition set out in an order (Order No. 91-186) issued after the full rate case process established in the statutes and rules. Ratepayers and others expressing interest were provided with notice of the original UE 79 proceeding and had an opportunity to participate in it to the full extent allowed under the applicable statutes and rules. To require PGE to provide the notice to all ratepayers demanded under OAR 860-22-017 would be redundant and superfluous.

We will, accordingly, provide notice of the reconsideration of Order No.

95-637 to the service list in UE 79 to allow for participation by those who were involved in the original process. We will not require notice beyond that.

URP’s claim that Order No. 95-637 is an amendment of the earlier order is also not persuasive and any notice requirements applicable to amending an order are not pertinent. URP’s argument involving PURPA is not in issue here and will not be considered.

ORDER

IT IS ORDERED that the application for reconsideration of Order No. 95-637 by the Utility Reform Project is granted and a hearing be conducted as set out in this order.

Made, entered, and effective ________________________. 

A party may appeal this order to a court pursuant to ORS 756.580.