ORDER NO. 98-161

ENTERED APR 20 1998

This is an electronic copy.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UE 106

DISPOSITION: RECONSIDERATION DENIED

On February 17, 1998, Portland Home Builders Association and Holt & Haugh Construction filed an application for reconsideration of the Commission’s action allowing Portland General Electric’s Advice No. 97-17, establishing an all-conduit system in underground subdivisions, to go into effect. Applicants ask that the Commission reconsider its decision and, preferably, reject Advice No. 97-17. In the alternative, they ask that the Commission suspend the advice and open an investigation. On March 9, 1998, Portland General Electric (PGE) filed a response to the application. On March 24, 1998, Portland Home Builders and Holt & Haugh filed a reply to PGE’s response.

Background

On October 6, 1997, PGE filed Advice No. 97-17 revising various tariff sheets. One proposed change would require developers of any planned subdivision with underground electric service (called an "underground subdivision") to install a continuous conduit system. The matter came before the Commission at its public meeting on December 16, 1997.

At the public meeting, the Commission considered a Staff memorandum recommending that the advice be allowed to go into effect on January 1, 1998. The Commission also had before it the application filed by PGE, which described the proposed new tariff. The Commission took oral testimony from two representatives of the building industry, who expressed opposition to the proposed tariff, and from representatives of PGE. The Commission decided to allow the tariff to go into effect as of January 1, 1998.

Application For Reconsideration

Applicants allege three grounds for granting reconsideration: that there is new evidence essential to the decision; that the order contains one or more errors of law or fact essential to the decision; and that good cause exists for further examination of a matter essential to the decision. Each of these, applicants assert, is a basis for reconsideration under OAR 860-014-0095, which states, in pertinent part:

(3) The Commission may grant an application for rehearing or reconsideration if the applicant shows that there is:

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

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(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 discuss each basis below.

New Evidence. Applicant argues that the Commission did not have available to it adequate evidence relating to the cost of the new tariff requirements, the value of the benefits from them, and the proper allocation of any benefits. As a result, according to applicants, the Commission could not determine whether the cost of the tariff was commensurate with its benefits and could not allocate any costs properly.

The Commission rejects this ground for reconsideration. Our consideration of this matter was far from perfunctory. We considered all issues raised by the application for reconsideration. We had before us Staff’s memorandum and PGE’s application. We also heard oral statements from Staff, PGE, and two representatives from the housing industry, including a spokesman for the Oregon Building Industry Association. We were presented with a range of costs for the new requirement. We considered evidence of the benefits, including significant improvements in reliability, safety, and efficiency, both when installed and in the future. We also considered substantial evidence as to who would benefit from the tariff. We are satisfied that we had ample evidence for our decision.

We note also that applicants for reconsideration have not satisfied the requirement in (3)(a) that any additional evidence must be shown to have been "unavailable and not reasonably discoverable" before the Commission made its decision. Applicants appear to have misunderstood this requirement, in that they state in their reply that the standard for granting reconsideration is that there is "new evidence that was unavailable and reasonably discoverable, " thereby leaving out the important word "not." Applicants also suggest that the question of the "unavailability" of the evidence refers to its unavailability to the Commission. It in fact requires that the material have been unavailable to the applicant seeking reconsideration.

Applicants do not claim, and cannot reasonably claim, that the material they seek to have the Commission consider was not available and discoverable at the time of the public meeting. The record shows that PGE sent letters describing the proposed tariff to over 500 members of the industry two months before we considered it at our December 16, 1997, public meeting. We published a notice of the public meeting in our regular "Notice of Public Meetings." Applicants have suggested nothing that would indicate any impediment existed to their presenting evidence to Staff and the Commission prior to or at the public meeting.

Error of Fact or Law. Second, applicants claim that the alleged paucity of factual evidence cited above establishes that the Commission’s decision was based on errors of fact or law. According to applicants, since the record contained no evidence to support the conclusion that the benefits of the requirement are commensurate with its costs, any conclusion on that issue is error. Moreover, applicants claim that by "allocating" all the incremental cost of the new tariff to the developer (and potentially the homeowner) the Commission failed to follow its own precedents on allocation. According to applicants, PGE will benefit from the new tariff and Commission precedents thus require allocation of some portion of the cost to PGE. Failure to follow these precedents is, in applicants’ view, an error of law.

As we noted above, we had sufficient evidence to draw the factual conclusions necessary for our decision on the issues of the benefits from the tariff and the allocation of costs and benefit. Our conclusion that it was appropriate to allocate the incremental costs to the developers and homeowners rather than to PGE’s ratepayers is not error. No error of fact or law has been shown by applicants.

Good Cause. Applicants claim that the supposed flaws in the process set out above provide good cause for granting reconsideration. They seek rejection of the Advice or suspension and investigation.

The Commission concludes, however, for the reasons set out above, that applicants have not established a basis for reconsideration.

ORDER

IT IS ORDERED that the petition for reconsideration filed by Portland Home Builders Association and Holt and Haugh, Inc., is denied.

Made, entered, and effective ____________________________.

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