Dennis v. Duke Power Co.
| Citation | 442 S.E.2d 104,114 N.C.App. 272 |
| Decision Date | 19 April 1994 |
| Docket Number | No. 9310UC278,9310UC278 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | , Util. L. Rep. P 26,396 In the Matter of Mrs. Delora DENNIS, Route 2, Box 478, Brevard, North Carolina 28712, and Other Customers of Haywood Electric Membership Corporation, Complainants, v. DUKE POWER COMPANY and Haywood Electric Membership Corporation, Respondents. Mr. Thomas W. McGOHEY and Other Customers of Haywood Electric Membership Corporation, 505 Connestee Trail, Brevard, North Carolina, 28712, Complainants, v. DUKE POWER COMPANY and Haywood Electric Membership Corporation, Respondents. Mrs. Carmeletta MOSES, Route 68, Box 326, Tuckasegee, North Carolina 28783, Complainant, v. DUKE POWER COMPANY and Haywood Electric Membership Corporation, Respondents, and Mr. Forrest Cole, Route 63, Bull Pen Road, Cashiers, North Carolina 28717, and Other Customers of Haywood Electric Membership Corporation, Complainants, and Nantahala Power & Light Company and Haywood Electric Membership Corporation, Respondents. |
1. Haywood EMC is a duly constituted electric membership corporation in the State of North Carolina established pursuant to Chapter 117 of the General Statutes of North Carolina. It provides electric service to portions of Buncombe, Haywood, Jackson, Macon, and Transylvania Counties, with the bulk of its service being provided in Haywood and Transylvania Counties.
2. Haywood is subject to the jurisdiction of the North Carolina Utilities Commission under G.S. 62-110.2(d)(2), which gives the Commission the authority to reassign electric service territory from one supplier to another upon a finding that service to a consumer by the electric supplier which is providing the service to that consumer's premises is or will be inadequate or undependable, or that the rates, conditions of service or service regulations, applied to that consumer, are unreasonably discriminatory.
3. Duke, Nantahala, and CP & L are engaged in the generation, transmission, and distribution of electric power to the general public for compensation in North Carolina. They are public utilities as defined by G.S. 62-3(23)(a)(1) and are electric 4. This proceeding is before the Commission on petition of certain customers of Haywood for reassignment to other electric suppliers on the grounds that the electric service they receive from Haywood is inadequate and undependable and that the conditions of service and service regulations as applied to them are unreasonably discriminatory.
suppliers as defined by G.S. 62-110.2(a)(3). The Commission has jurisdiction over the extension of electric power service by these utilities to meet the reasonable needs of the electric consumers on the facts of this case and has jurisdiction over the subject matter of the complaints.
5. Haywood's customer service is not provided uniformly to its customers. The district office has discretionary power, which can be, and is, exercised arbitrarily in responding to customer complaints, deposit procedures, credit checks, disconnect procedures, equal payment plans, and late payments.
6. The complainants have received voltage from Haywood which is outside the voltage standards set by Haywood itself, REA, and this Commission. This includes periods of low voltage, high voltage, and voltage swings.
7. The improper voltage and electric service provided by Haywood has caused, and continues to cause, damage to the complainants, including, but not limited to, damage to heating equipment, water pumps, major electric appliances, and electronic equipment such as TVs, VCRs, computers, [sic] telephone answering devices.
8. The complainants have experienced and continue to experience frequent electric service outages. Among the major causes of these outages are:
(a) Haywood's inability to control or mitigate the impact of lightning, storms, planned outages, and similar problems;
(b) Haywood's inadequate and nonuniform line clearing procedures;
(c) Haywood's indifference, or inadequate response, to consumer problem reports;
(d) Haywood's lack of knowledge of customer growth and usage patterns; and
(e) Lack of communication and coordination between Haywood and its consultant engineer.
9. The complaints of Haywood EMC against its power suppliers Duke and Nantahala are without merit. There has been no conclusive showing that the power supply to Haywood from Duke or Nantahala has been inadequate. The problems Haywood has experienced in attempting to obtain sources of supply at multiple distribution level delivery points in difficult terrain, instead of obtaining a reliable transmission level supply, do not absolve Haywood of its responsibility for reliability of service.
10. The revised 1991-93 Construction Work Plan of Haywood substitutes a new tie line between the Quebec substation and the cashiers metering point for the new transmission line and substation contained in the original work plan, although the details of such a tie line have not been discussed with Duke or Nantahala. Both Duke and Nantahala objected to approval of the tie line without first settling the various issues between Haywood and the suppliers which are raised by the new tie line.
11. Haywood has instituted a new management. Haywood has also prepared and adopted a revised 1991-93 Construction Work Plan which contains improvements that, according to Haywood, will "improve its reliability of service to members through the use of sound engineering and economics judgments."
12. Responsibility for the electric utility service to the M-B Industries plants served by Haywood EMC should be transferred from Haywood to Duke Power Company. One plant is only fifty feet away from Duke's lines, another plant is some 200 yards from Duke's lines, and a sister plant in the same area is already served by Duke with a satisfactory level of service. The load on the troubled Quebec substation of Haywood can be relieved by transferring the M-B Industries plant load from Haywood to Duke, and transfer of the plants to an alternate supplier would
make clear to Haywood the Commission's determination to effect a resolution of the complainants' service problems.
I. The Commission concludes that the electric service provided by Haywood EMC to the Complainants and to the public witnesses in this proceeding is inadequate and undependable and that Haywood's conditions of service and service regulations, as applied to the Complainants and to the public witnesses, are arbitrary and unreasonably discriminatory.
II. The Commission further concludes that, except for the M-B Industries plants served by Haywood, there should be no reassignment of customers or service territory at this time in order to allow Haywood the opportunity to undertake the improvements to its facilities outlined in its revised construction work plan.
III. With respect to the M-B Industries plants served by Haywood, the Commission concludes that electric service to these plants should be hereinafter furnished by Duke Power Company and that pursuant to the procedures set forth below, Haywood EMC shall cease and desist from supplying electric service to the M-B Industries plants.
The Commission ordered Duke to submit a proposal outlining its plan to serve the facilities of M-B Industries and ordered that "implementation of the transfer of responsibility for furnishing electric utility service to the M-B Industries plants from Haywood to Duke shall commence upon approval by the Commission of the proposal for transfer prepared by Duke." Additionally, the Commission's 5 October 1992 order requires quarterly progress reports from Haywood EMC "describing the status of improvements to facilities and customer services of the Haywood system, the status of customer response to the improvements, and the status of necessary approvals from REA and other agencies." Additionally, the Commission ordered further hearing and that the docket remain open for at least two years
On 4 November 1992, respondent Haywood EMC filed a "request for rehearing, motion for stay, and request for oral argument." Pursuant to the Commission's 5 October 1992 order, Duke filed its service proposal for reassignment of M-B Industries on 3 November 1992. Haywood EMC filed a response to Duke's proposal on 9 November 1992. On 19 November 1992, the Public Staff filed a "request for reconsideration and response" recommending that "[t]he Commission should not rescind its decision to transfer the electric service of M-B Industries to Duke" and that "[t]he Commission should reconsider its decision to leave residential complainants in the Haywood EMC service area." Oral argument was held before the Commission on 30 November 1992. Duke's service proposal was accepted and authorized by the Commission by an order dated 1 December 1992. The order denied Haywood EMC's 4 November 1992 motions and denied the Public Staff's 19 November 1992 request for reconsideration regarding the Commission's refusal to reassign the residential complainants.
During December 1992, Haywood EMC, NCEMC, and the Public Staff all filed timely notices of appeal and exceptions to the 5 October 1992 order. On 9 December 1992, Haywood EMC filed a petition for writ of supersedeas, which was later denied by this Court. Additionally, Haywood EMC filed a petition for temporary stay, which subsequently was granted by this Court. The temporary stay has since expired.
Brooks, Pierce, McLendon, Humphrey & Leonard, by Jerry W. Amos, Greensboro, for respondent-appellant Haywood Elec. Membership Corp.
Victoria O. Hauser, Staff Atty., and A.W. Turner, Jr., Staff Atty., Raleigh, for intervenor-appellant Public Staff.
Thomas K. Austin, Associate Gen. Counsel, Raleigh, for int...
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