Solarize Ind., Inc. v. S. Ind. Gas & Elec. Co.

• Decision Date: 29 January 2021
• Docket Number: Court of Appeals Case No. 20A-EX-1384
• Parties: SOLARIZE INDIANA, INC., Appellant-Objector, v. SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, d/b/a Vectren Energy Delivery of Indiana, Inc., Indiana Utility Regulatory Commission, and Indiana Office of Utility Consumer Counselor, Appellees-Petitioner/Administrative Agency/Statutory Party.
• Court: Indiana Appellate Court

163 N.E.3d 880

SOLARIZE INDIANA, INC., Appellant-Objector,

v.SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, d/b/a Vectren Energy Delivery of Indiana, Inc., Indiana Utility Regulatory Commission, and Indiana Office of Utility Consumer Counselor, Appellees-Petitioner/Administrative Agency/Statutory Party.

Court of Appeals Case No. 20A-EX-1384

Court of Appeals of Indiana.

FILED January 29, 2021

Attorneys for Appellant: Todd A. Richardson, Joseph P. Rompala, Lewis & Kappes, P.C., Indianapolis, Indiana

Attorneys for Appellee Southern Indiana Gas and Electric Company, dba Vectren Energy Delivery of Indiana, Inc.: Steven W. Krohne, Derek R. Molter, Ice Miller LLP, Indianapolis, Indiana

Attorneys for Appellee Indiana Utility Regulatory Commission: Beth E. Heline, General Counsel of the Indiana Utility Regulatory Commission, Jeremy R. Comeau, Assistant General Counsel of the Indiana Utility Regulatory Commission, Indianapolis, Indiana, Aaron T. Craft, Section Chief, Civil Appeals, Office of the Attorney General, Indianapolis, Indiana

Bradford, Chief Judge.

Case Summary

[1] The Indiana Administrative Code ("I.A.C.") establishes an informal filing procedure (the "Thirty-Day Rule") for certain filings submitted to the Indiana Utility Regulatory Commission ("IURC"). Southern Indiana Gas and Electric Company d/b/a Vectren Energy Delivery of Indiana, Inc. ("Vectren") filed two requests under the IURC's Thirty-Day Rule. Solarize Indiana, Inc. ("SI") filed objections to both requests. After finding that neither of SI's objections were compliant with the applicable commission rules, the IURC approved both of Vectren's filings. SI challenges these approvals on appeal. We affirm.

Facts and Procedural History

I. General Information Relating to the IURC's Thirty-Day Rule

[2] 170 I.A.C. 1-6-1 through - 9 establishes informal filing procedures (the "Thirty-Day Rule"). The Thirty-Day Rule applies to

certain requests by a utility for changes in:

(1) its rates;

(2) its charges;

(3) its rules;

(4) its regulations; or

(5) any combination of subdivisions (1) through (4);

that are outside the context of a general rate case and that are not subject to other commission rules establishing specific filing requirements for the subject matter of the filing.

170 Ind. Admin. Code 1-6-1(a). Each filing under the Thirty-Day Rule shall include a cover letter clearing stating the following: "(A) that the filing is being made under this rule; (B) the purpose of the filing; (C) the need for what is being requested; and (D) why the filing is an allowable request under section 3 of this rule." 170 I.A.C. 1-6-5(1).

[3] "Under [ Indiana Code section] 8-1-1-5 and as defined in this rule, only noncontroversial filings may be approved under this rule." 170 I.A.C. 1-6-1(b). " ‘Noncontroversial filing’ means any filing regarding which no person or entity has filed an objection as provided under section 7 of this rule." 170 I.A.C. 1-6-2(10). Section 7 provides that "[i]f any person or entity has an objection to a filing made under this rule, the objection shall be submitted to the secretary of the commission." 170 I.A.C. 1-6-7(a). The objection must be as follows:

(1) In writing in:

(A) paper; or

(B) electronic format.

(2) Based on a statement that at least one (1) of the following applies to the filing:

(A) It is a violation of:

(i) applicable law;

(ii) a prior commission order; or

(iii) a commission rule.

(B) Information in the filing is inaccurate.

(C) The filing is:

(i) incomplete; or

(ii) prohibited under section 4 of this rule.

170 I.A.C. 1-6-7(b). Pursuant to Indiana Code section 8-1-1-5, the filing "shall not be presented to the commission for consideration upon an objection that complies with this section." 170 I.A.C. 1-6-7(d).

II. Vectren's Filing Number 50331 ("No. 50331")

[4] On February 28, 2020, Vectren filed a request under the IURC's Thirty-Day Rule for "New Rate Schedules for Cogeneration and Alternate Energy Production Facilities" under No. 50331.¹ In this request, Vectren indicated that the customer impact would be as follows:

On-Peak: Decrease $0.00529 kWh

Off-Peak: Decrease $0.00257 kWh

Capacity: Increase $0.18 kW per month

RATE CSP
Cogeneration and Small Power Production
Time Period	Energy Payment to a Qualifying Facility ($/kWh)	Capacity Payment to a Qualifying Facility ($/kW/per month)
Annual On-Peak	$0.03016	$6.08
Annual Off-Peak	$0.02413	$6.08

Appellant's App. Vol. II p. 21.² On April 24, 2020, SI filed an objection to No. 50331, claiming that Vectren's filing was not compliant with the Public Utilities Regulatory Policies Act ("PURPA").

[5] Vectren filed a response on May 5, 2020, in which it asserted that No. 50331 was not in violation of any applicable law, commission order, or commission rule; information in both is accurate; and the filing is complete and not prohibited under section 4 of the rule. Specifically, Vectren asserted that (1) SI did not "provide any grounds, specific or otherwise," for its objection but rather merely states its intention to join in the Objection submitted by the Office of Utility Consumer Counselor ("OUCC"); (2) SI's claims that No. 50331 is not consistent with the requirements of PURPA lack specificity; (3) SI's objection is not based on appropriate grounds under 170 I.A.C. 1-6-7 as it fails "to cite or provide any specific basis to support a claim" that the filing "in any manner violate[s] Indiana law; a commission order, or a commission rule as required for a valid objection under 170 IAC 1-6-7 [;]" (4) SI's objection does not claim that the information included in the filing is inaccurate, incomplete, or prohibited under section 4 of the rule; and (5) 170 I.A.C. 1-6-7 does not allow an objector to reserve the basis of its objections for some later time but rather clearly provides only four grounds to object, which must be stated in the filing. Appellant's App. Vol. II pp. 142, 143. Vectren also claimed that SI's objection was not timely filed.

[6] SI filed a Reply on May 8, 2020, presenting the following six assertions:

• PURPA and [Federal Energy Regulatory Commission's (‘FERC’)] regulations implementing PURPA are both ‘applicable law’ within the meaning of the Commission's own rule defining permissible objections to 30-day filings relating to Cogeneration and Renewable Generation Tariffs such as Vectren's proposed CSP Tariff, and Objectors have raised the issue of whether Vectren's filings comply with that statute and those regulations.

• PURPA requires that each qualifying renewable generator be offered three options for selling electricity to the utility, but Objectors have fairly raised the issue of whether Vectren is doing that.

• PURPA requires that a utility pay a qualifying renewable generator an "Avoided Cost" price based on the electricity that the utility would have purchased "but for" the PURPA purchase, but Objectors have fairly raised the issue of whether Vectren is doing that.

• PURPA requires that the interconnecting utility offer each qualifying renewable generator the opportunity to sell generation on terms otherwise compliant with the statute and its implementing regulations without preference or discrimination, but Objectors have fairly raised the issue of whether Vectren is doing that.

• Under the Commission's rules, Objectors have raised issues regarding the Vectren 30-day filings nos. 50331 and 50332 sufficient to render them "controversial" under 170 I.A.C. 1-6 and thus to require its review by the Commission in a docketed proceeding.

• As Vectren expressly concedes, there is no specific number of days following a 30-day filing set by the Commission rules after which an objection to the filing cannot be considered by the Commission prior to either summarily approving or requiring the docketing of the filing.

Appellant's App. Vol. II pp. 147–53.

[7] After reviewing the documents submitted by the parties, the IURC's General Counsel summarized SI's objection as that Vectren "may not be complying with PURPA" and opined as follows:

• 170 IAC 1-6-7 does not provide for a reply being submitted to the utility's response to the objection or for multiple filings providing additional explanation. 170 IAC 1-6 provides for a shortened administrative process and, given the shorter timeframe, persons submitting an objection should provide a statement on which the objection is based and that accurately articulates the basis for the objection pursuant to 170 IAC 1-6-7(b)(2).

• While SI states that Vectren's filing is "incomplete", this allegation is with regards to [PURPA], enacted in 1978. The IURC adopted rules in 1981 to implement PURPA. The Indiana General Assembly enacted Ind. Code chapter 8-1-2.4 in 1982 to express the State of Indiana's policy and implementation of PURPA, which gives authority to the states to implement PURPA under rules that have been and may be established by the [FERC]. The IURC adopted Rule 4.1 in 1985 to implement Ind. code chapter 8-1-2.4 and, therefore, also to implement PURPA. SI does not provide any statement that Vectren's filing, which was made under Rule 4.1, violates Rule 4.1; as a result, SI's objection does not comply with 170 IAC 1-6-7(b)(2). SI's objection appears to be about Rule 4.1 itself and SI's assertion that the rule should be updated; this is not a compliant objection under 170 IAC 1-6-7. SI has the option of submitting a request to the Commission asking for a rulemaking to amend Rule 4.1.

• Most of SI's comments and assertions are regarding Vectren's filing of a proposed excess distributed generation ("EDG") rate, now docketed as IURC Cause No. 45378, and its concerns regarding EDG and the relevant statute, Ind. Code chapter 8-1-40. SI has intervened in 45378 and that is the appropriate proceeding in which to provide its arguments and supporting evidence for those arguments.

• The SI objection is not compliant with 170 IAC 1-6-7.^[3]

Appellant's App. Vol. II pp. 23–24. IURC staff reviewed the General Counsel's analysis and findings and provided the following recommendation to the IURC Commissioners: ...