ORDER NO. 99-188

ENTERED MAR 05 1999

This is an electronic copy.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UA 61

DISPOSITION: CONTRACT AMENDMENTS APPROVED

Procedural Background. On October 26, 1998, Portland General Electric Company (PGE) filed an application for an order approving an amendment to its contract with Columbia River People’s Utility District (CRPUD) allocating utility service territory. Notice of the application was served on the parties to this docket on November 3, 1998. A revised notice was served on the parties on November 4, 1998. The revised notice was published in the Oregonian November 6 and 10, 1998.

The revised notice provided information that PGE’s application does not request approval of transfer of any customers or changes to the allocation of service territory previously granted. The notice stated that the purpose of the amendments is to eliminate certain legal arguments with respect to federal antitrust laws. The notice further provided that any affected customer may request a hearing on this matter within 30 days of the notice. No one requested a hearing.

PGE’s Application. PGE’s application was filed pursuant to ORS 758.430 and OAR 860-025-0015. On May 4, 1984, PGE and CRPUD entered into an Acquisition Agreement that defined portions of the boundary between their respective service territories. CRPUD and PGE submitted the Acquisition Agreement to the Commission, which approved it in Order No. 86-1012.

Due to disagreements about the meaning of the Acquisition Agreement, the parties negotiated a Settlement Agreement dated October 31, 1990. The Settlement Agreement clarified that CRPUD would provide service to certain residential subdivisions and set out the process by which PGE and CRPUD would negotiate the price, if any, CRPUD would pay to PGE for transferring customers to CRPUD in certain fringe areas, as defined in the Settlement Agreement. The Commission approved the Settlement Agreement in Order No. 91-1395.

PGE and CRPUD have now agreed to amend certain portions of the Acquisition Agreement pursuant to correspondence between them. The amendments are as follows: (1) subsection 6.2 is deleted from the Acquisition Agreement; (2) the second sentence of Section 16 of the Acquisition agreement ["In the event CRPUD commences to serve Boise Cascade, this Agreement shall be void at the option of PGE."] is deleted from the Acquisition Agreement; and (3) the words "and the option to void the agreement" are deleted from the third sentence of Section 16 of the Acquisition Agreement.

PGE made this filing because it believes that these amendments will eliminate certain legal arguments with respect to federal antitrust laws. PGE believes that these amendments do not alter either PGE’s statutory rights with regard to its allocated service territory or alter the boundaries of such service territory.

OAR 860-025-0015 requires that applications for approval of amendments to a contract approved pursuant to ORS 758.410 to 758.420 include (1) the amendatory contract; (2) reference to the Commission order approving the initial contract; and (3) such information required by OAR 860-025-0010 as may assist the Commission in reviewing the application. PGE’s filing contains the required documents.

CRPUD’s Objection. On November 23, 1998, the Commission received a letter from CRPUD stating that it does not agree that UA 61 is appropriate or necessary, because many of the provisions sought to be modified are no longer effective, inasmuch as the provisions have been accomplished or time has made them irrelevant. CRPUD notes that both sides have simply agreed to waive certain provisions in the matter at hand.

ORS 758.430 governs this amendment of contract, because the original agreement between the parties was approved under ORS 758.410 to 758.420. ORS 758.430 provides:

Any contract that has been approved as provided in ORS 758.400 to 758.475 may be subsequently amended by the parties thereto, but any such amendatory agreement shall be filed with the Public Utility Commission and shall thereafter be approved or disapproved by the commission in the manner provided in ORS 758.420 and 758.425. However, no hearing is required if all affected customers approve the amendatory agreement. An amendatory agreement may be enforced in the manner provided in ORS 758.465.

We conclude, contrary to CRPUD’s position, that PGE’s filing of the amendment to the Acquisition Agreement between PGE and CRPUD is procedurally correct.

Conclusion. The Commission has reviewed the applicant’s filing, as provided in ORS 758.425, and concludes that it should be approved.

IT IS ORDERED that the amendments to the Acquisition Agreement between PGE and CRPUD filed by PGE are approved.

Made, entered, and effective ________________________.

A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A request for rehearing or reconsideration must be filed with the Commission within 60 days of the date of service of this order. The request must comply with the requirements in OAR 860-014-0095. A copy of any such request must also be served on each party to the proceeding as provided by OAR 860-013-0070(2). A party may appeal this order to a court pursuant to applicable law.