ORDER NO. 97-377

ENTERED SEP 23 1997

This is an electronic copy. Appendices may not be included.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UM 814

DISPOSITION: RECONSIDERATION DENIED

On June 4, 1997, the Public Utility Commission of Oregon issued Order No. 97-196, granting, with conditions, the application of Enron Corp. to exercise influence over Portland General Electric (PGE). On August 4, 1997, Lloyd K. Marbet, Don’t Waste Oregon Council, and the Utility Reform Project (collectively URP) filed an application for reconsideration of Order No. 97-196. Enron/PGE filed a response to the application for reconsideration.

Parties’ Arguments

URP attacks the procedure used by the Commission to decide whether to approve Enron’s application to exercise influence over PGE. URP contends that the proceeding should have been conducted as a contested case, with the taking of evidence. Even though URP did not request an evidentiary hearing within the schedule adopted by the Administrative Law Judge (ALJ), URP contends that conditions adopted by the Commission in Order No. 97-196 depriving ratepayers of revenue streams now devoted to their benefit were not at issue at the time the ALJ asked the parties if they wanted an evidentiary hearing. URP argues that Condition 20A of the Stipulation adopted by the Commission in Order No. 97-196 amounts to a predetermined decision establishing the basis for future rates without the necessity of a contested case process. URP requests the Commission to now schedule a contested case to hear evidence on Enron’s application.

Enron/PGE responds that the Commission fully addressed in Order No. 97-196 the request URP made in its final comments that a contested case process was required. Enron/PGE disputes URP's contention that the issues underlying Condition 20A had not been proposed and debated when the ALJ asked the parties if they wanted an evidentiary hearing, and points out that the issues were raised by the Commission’s Staff in its preliminary report distributed on January 19, 1997. On March 19, 1997, the ALJ asked the parties if they wanted an evidentiary hearing. Enron/PGE also disputes URP's suggestion that PGE ratepayers will be deprived unfairly of future revenue streams that are now devoted to their benefit.

Discussion and Resolution

ORS 756.561 authorizes a party to apply for reconsideration of a Commission order. The Commission may grant reconsideration "if sufficient reason therefor is made to appear." Commission Rule OAR 860-014-0095 provides that the Commission will grant an application for reconsideration if the application establishes one or more of the following grounds:

(a) New evidence which is essential to the decision and which was unavailable and not reasonably discoverable prior to the 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.

In the first four pages of Order No. 97-196, we discussed the background of this proceeding and explained why the specific procedures adopted were used. We will not reiterate our discussion here, but point out that the adopted procedures worked well and provided us with the information and argument we needed to make an informed decision as to whether to grant or deny Enron’s application.

The Commission agrees with Enron/PGE that the issues underlying Condition 20A adopted in Order No. 97-196 were raised prior to the time the ALJ asked the parties if they wanted an evidentiary hearing. Staff specifically raised the issues in its January 17, 1997, preliminary report. The issues probably also were raised by other parties and discussed in the settlement discussions held among the parties. But even if the issues had not been raised prior to the ALJ's March 19 memorandum, it would not change our opinion that the procedures employed in this proceeding satisfied both the specific requirements and the spirit of Oregon statutes and provided the information we wanted prior to making our final decision.

We reject URP's claim that Condition 20A "amounts to a predetermined decision, applicable to all future rate cases, that PGE ratepayers will no longer be credited with PGE's revenue from PGE's extensive wholesale power sales that use assets paid for by ratepayers." The conditions adopted in Order No. 97-196 protect PGE ratepayers with respect to wholesale power sales made prior to the effective date of the merger and provide payment for the benefit of PGE ratepayers for the loss of wholesale power sales after the merger is complete.

CONCLUSIONS

The application for reconsideration has not satisfied any of the criteria listed above for reconsideration. The decisions we announced in Order No. 97-196 were the correct ones. Therefore, the application for reconsideration should be denied.

ORDER

IT IS ORDERED that the application for reconsideration filed by URP is denied.

Made, entered, and effective ____________________________.

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