646 pages b-1 · 2011. 6. 10. · ngv, and aes initiatives deliver tangible benefits to existing...
TRANSCRIPT
![Page 1: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/1.jpg)
David Curtis Direct 604 631 4827
Facsimile 604 632 4827 [email protected]
June 9, 2011 File No.: 240148.00677/15951
ELECTRONIC FILING British Columbia Utilities Commission 6th Floor, 900 Howe Street Vancouver, BC V6Z 2N3
Attention: Eric Hamilton Commission Secretary
Dear Sirs/Mesdames:
Re: An Inquiry into FortisBC Energy Inc. regarding the Offering of Products and Services in Alternative Energy Solutions and Other New Initiatives (the “Inquiry”)
We enclose for filing in the above referenced proceeding the electronic version of the Submissions regarding the scope of the Inquiry and Exhibit Book on behalf of the FortisBC Energy Utilities.
Fifteen hard copies of the Submissions and Exhibit Book will follow by courier.
Yours truly,
FASKEN MARTINEAU DuMOULIN LLP [original signed by David Curtis] David Curtis
DHC
646 Pages B-1
![Page 2: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/2.jpg)
IN THE MATTER OF The Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
An Inquiry into FortisBC Energy Inc.
regarding the Offering of Products and Services in Alternative Energy Solutions and Other New Initiatives
Written Submission of the FortisBC Energy Utilities for Procedural Conference on June 15, 2011
June 9, 2011
![Page 3: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/3.jpg)
- i -
TABLE OF CONTENTS
Page
PART ONE: INTRODUCTION AND OVERVIEW ...................................................................................... 1
A. INTRODUCTION .................................................................................................................... 1
B. CONTEXT FOR FEU’S PROCEDURAL SUBMISSIONS .............................................................. 2
C. ORGANIZATION OF SUBMISSION ......................................................................................... 6
PART TWO: INQUIRY ISSUES AND SCOPE ............................................................................................ 8
A. INTRODUCTION .................................................................................................................... 8
B. FEU MUST BE FREE TO PROCEED ACCORDING TO EXISTING APPROVALS ........................... 8
(a) Approved 2010-2011 RRA NSA Contemplated Rate Structures Continuing ................ 9 (b) Issue Amounts to Re-Litigation of the 2010-2011 RRA Approval ............................... 11 (c) New AES Projects to be Submitted According to NSA................................................ 12 (d) Summary ..................................................................................................................... 12
C. NON-ISSUES THAT SHOULD BE SET ASIDE AT THE OUTSET ............................................... 13
(a) AES is a Regulated Public Utility Service ..................................................................... 13 (b) RMDM Do Not Govern the Relationship Between Two Regulated Classes of
Service ......................................................................................................................... 16 (c) Use of FortisBC Name ................................................................................................. 19 (d) Section 18 “Prescribed Undertakings” ....................................................................... 20 (e) Summary ..................................................................................................................... 21
D. NGV, BIOMETHANE, AND EEC BEST ADDRESSED IN ANOTHER CONTEXT ......................... 21
(a) Introduction ................................................................................................................ 21 (b) Staff Working Paper Issues Relating to Biomethane, NGV and EEC .......................... 21 (c) Overlap is at the Long-Term Planning Level ............................................................... 22 (d) Upholding Prior Determinations on NGV, EEC and Biomethane ............................... 23 (e) Comprehensive Regulatory Review of Biomethane Completed ................................ 23 (f) Comprehensive Review of NGV Completed ............................................................... 25 (g) EEC Issues Addressed in Comprehensive EEC Application, RRA, and EEC-NGV
Proceeding .................................................................................................................. 27 (h) Summary Regarding NGV, Biomethane and EEC ........................................................ 28
E. FOCUS OF THE GUIDELINES................................................................................................ 28
(a) Section 72 Concerns What a Public Utility “Has Done, is Doing, or Has Failed to Do” .......................................................................................................................... 29
![Page 4: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/4.jpg)
- ii -
(b) The Limits of the Commission’s Jurisdiction Over Utility Management and Competition ................................................................................................................ 29
(c) Summary ..................................................................................................................... 31 F. BALANCED INQUIRY SCOPE AND BALANCED FORMULATION OF THE INQUIRY
ISSUES ................................................................................................................................. 31
(a) Introduction ................................................................................................................ 31 (b) Additional Issues that should be Included Within Inquiry Scope ............................... 31 (c) Need for Reformulation of Inquiry Issues in Neutral Manner ................................... 32
PART THREE: INQUIRY PROCESS ....................................................................................................... 33
(a) Proposed Hearing Process (Assuming Scope is as FEU Proposes).............................. 33 (b) Other Process Matters ................................................................................................ 33
PART FOUR: INQUIRY TIMING .......................................................................................................... 34
PART FIVE: CONCLUSION .................................................................................................................. 35
APPENDIX “A”: REFORMULATION OF INQUIRY ISSUES ...................................................................... 37
APPENDIX “B” TABLE OF CONCORDANCE .......................................................................................... 41
FEU EXHIBIT LIST
![Page 5: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/5.jpg)
- 1 -
PART ONE: INTRODUCTION AND OVERVIEW
A. INTRODUCTION
1. The Commission has recently received two complaints (the “Complaints”)1 from
competitors of the FortisBC Energy Utilities (the “FEU” or the “Companies”) regarding its
provision of thermal energy (geothermal, solar-thermal and district energy) services, also
referred to as Alternative Energy Solutions (“AES”), to the public.2 These Complaints are
generally directed at limiting the extent and nature of the FEU’s participation in AES.3
2. In Order G-95-11 (the “Inquiry Order”), the Commission established an Inquiry
under sections 23, 72, 82 and 83 of the Utilities Commission Act (the “UCA”) to consider “FEI
offering Products and Services in Alternative Energy Solutions and New Initiatives”. Appendix B
of the Inquiry Order is a Staff Working Paper on Scope of the Issues (the “Staff Working Paper”).
The issues identified by the Staff Working Paper extend well beyond the issues described in the
Complaints, and touch on matters such as Energy Efficiency and Conservation or demand side
management (“EEC”), Natural Gas Vehicle (“NGV”) fuelling services, and Biomethane. The Staff
Working Paper also refers to the Resource Planning Guidelines. The Inquiry Order directed that
FEU and registered interveners could provide written submissions on the “preliminary issues,
scope and process of this Inquiry by Thursday, June 9, 2011.” These Procedural Conference
Submissions are filed on behalf of the FEU and address the preliminary issues, scope and
process of this Inquiry.
1 A2-1, letter dated May 25, 2011, filing Energy Services Association of Canada (“ESAC”) application dated April
27, 2011; A2-2, letter dated May 25, 2011, filing Corix Utilities (“Corix”) May 6, 2011, letter supporting the ESAC application.
2 The FEU are using the term AES to refer to the services described in the approved General Terms and Conditions (“GT&C’s”) Section 12A as follows: “FortisBC Energy will make extensions to the FortisBC Energy System using technology that produces alternative energy, in accordance with the provisions of this section. The alternative energy extensions include geo-exchange, solar thermal and district energy systems which are described below…” AES does not include in this definition Natural Gas Vehicles or its fuelling infrastructure (“NGV”), Biomethane, or Energy Efficiency and Conservation (“EEC”). These service offerings and their costs are part of the natural gas class of service within FEI. AES costs are tracked separately and recovered from AES customers. For further detail, see the FEU’s Exhibit Book, tab 18.
3 AES or Thermal Energy Solution (“TES”) projects are carried out under Fortis BC Energy Inc. (“FEI”) according to the terms of the Negotiated Settlement Agreement (“NSA”) for FEI dated November 26, 2009. No AES or TES projects are to occur within FEVI according to the NSA.
![Page 6: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/6.jpg)
- 2 -
3. The FEU recognizes the Commission’s desire to have a comprehensive review of
issues raised in applications relating to new initiatives being pursued by the FEU.4
4. In light of the importance to the FEU and their customers of the issues raised by
the Complaints and the Staff Working Paper, the Inquiry process set by the Commission must
ensure that the FEU has a full opportunity to provide comprehensive evidence, respond to
appropriate questions, cross-examine both Complainants, and make submissions. The FEU
have proposed a process and timetable that meet these procedural fairness considerations.
The FEU look forward to a constructive and efficient Inquiry for the benefit of all stakeholders
and, most importantly, for the benefit of FEU’s customers.
The FEU
welcomes the opportunity to resolve some of the issues raised in the Staff Working Paper in an
Inquiry. However, the FEU submits that the final scope of the Inquiry should differ from that
set out in the Staff Working Paper, with a focus on issues relating to AES.
B. CONTEXT FOR FEU’S PROCEDURAL SUBMISSIONS
5. The FEU initially articulated their intention to pursue NGV fuelling service,
Biomethane, and AES in the 2008 Long-Term Resource Plan (“LTRP”), filed June 27, 2008. The
FEU submitted a comprehensive EEC Application at approximately the same time. The 2008
LTRP was the FEU’s response to government’s 2007 Energy Plan, the introduction of the Carbon
Tax, and a new environment where energy consumers increasingly have choices regarding
energy sources and are interested in low-carbon solutions.5 The three low-carbon initiatives
were an integral part of the Companies’ long-term plan to ensure that natural gas and its
infrastructure remains part of the energy mix for the benefit of both natural gas customers and
the Companies, while at the same time responding to the public policy and legislative mandate
to reduce greenhouse gas (“GHG”) emissions in BC.6
4 2010 FEU LTRP Decision (Order G-14-11), pages 26-28; FEU Exhibit Book, tab 7.
The FEU maintain that the Biomethane,
NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The
customers of the FEU, which will continue to be primarily gas customers for some time into the
future, benefit from optimizing the use of the existing infrastructure, sharing delivery costs and
5 2008 FEU Resource Plan, pages 9-27 and 89-105. 6 FEI 2010-2011 RRA pages 46-47.
![Page 7: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/7.jpg)
- 3 -
overheads, and access to innovative low carbon offerings as a growing number of the FEU’s
customers want more than just traditional natural gas service. Further, the initiatives are fully
aligned with government policy reflected in “British Columbia’s energy objectives” and the
2007 Energy Plan.7
6. The Commission has indicated a desire to consider all new initiatives in a
comprehensive way. The FEU submit that, given the nature of the overlap, future LTRPs remain
the appropriate venue for that type of review. Although the FEU’s EEC, Biomethane, AES and
NGV initiatives have common objectives and affect resource requirements, each of these
initiatives requires a more nuanced consideration at the level of rate design and public interest
assessment.
The FEU submit that the customer and policy impetus for the FEU’s
involvement in AES is essential context that must also be understood and accounted for in any
balanced Inquiry addressing AES.
7. In the intervening three years since the FEU stated their intention to pursue
Biomethane, NGV, and AES initiatives in the 2008 LTRP, FEU have brought forward specific
proposals in respect of each of the following initiatives:
(a) Biomethane: FEI filed a comprehensive business model for a Biomethane program in 2010 and obtained Commission approval for a two-year pilot. FEI has two supply projects approved (Salmon Arm and Catalyst) and residential customers will begin to enrol in the program shortly.8
(b) NGV: FEI filed a comprehensive NGV Application in December 2010, for which a final decision is outstanding. This business model was supported by a commercial contract for CNG (Waste Management) that produced the first new natural gas fuelling infrastructure built in BC in 10 years. Another commercial contract (Vedder Transport) for LNG service will be filed with the Commission for approval in the near future.
9
7 For example, see the Biomethane Application Decision at p. 27, where the Commission found that the
Application is consistent with British Columbia’s energy objectives and Provincial Government energy policy.
8 FEI filed the Biomethane Application on June 8, 2010; the decision approving the application was made on December 14, 2010 (Order No. G-194-10); FEU Exhibit Book, tab 13.
9 FEI filed the Application for Approval of a Service Agreement for Compressed Natural Gas Service and for Approval of General Terms and Conditions for CNG and Liquefied Natural Gas Service, on December 10, 2010; the decision is currently pending (the NGV Application).
![Page 8: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/8.jpg)
- 4 -
(c) AES: FEI obtained approval in the 2010-2011 Revenue Requirements Application (“2010-2011 RRA”) for rate constructs for offering AES.10
(d) EEC: The FEU filed an EEC Application in 2008 that resulted in the Commission establishing a framework for EEC funding. The FEU sought and obtained additional EEC funding in the 2010-2011 RRA, and addressed the EEC framework again as part of the Commission-initiated process to consider EEC funding for NGV initiatives that is still underway.
FEI will bring forward signed contract(s) (projects) shortly for BCUC approval according to the terms and conditions of the Negotiated Settlement Agreement.
11
8. As a result of these Applications, many issues raised by the Staff Working
Paper—particularly those related to NGV, Biomethane and EEC—have already been heard or
decided based on facts and policy that remain the same today. The Companies have taken the
approvals granted at face value and have proceeded with the approved initiatives in good faith.
There are customers that have taken steps to avail themselves of approved services in the
reasonable expectation that the services will continue to be available. There will be business
implications for FEU and stakeholders if this Inquiry includes issues that have been reasonably
understood to have been settled through prior proceedings. FEU and potential customers
must, as a matter of basic fairness, be able to rely on these past Commission decisions and the
policies inherent in them without having to re-justify the initiatives based on substantially the
same policy and factual evidence. The law requires consistency in decision making and finality
of decisions.
12
9. FEU submits that AES should be the focus of this Inquiry, which is really at the
heart of the Complaints. Furthermore, the Staff Working Paper issues relating to AES should be
Respecting past decisions made on the basis of still applicable facts, law, and
policy ensures that subsequent regulatory processes can be conducted efficiently and cost-
effectively, protects customers, and ensures that the utility is not unnecessarily subjected to
additional unanticipated regulatory-related business risk.
10 Which the approved rate schedule refers to collectively as “Alternative Energy Services” or “AES” and the FEU
refer to now as “Thermal Energy Services”. FEI filed the 2010-2011 RRA on June 15, 2009. 11 FEI filed the 2008 EEC Application on May 28, 2008. 12 The Commission has jurisdiction to reconsider decisions under s. 99 of the Act. The Commission has
established criteria that determine how and when this jurisdiction is to be exercised. Nothing set out in the Complaints meet the criteria for reconsideration, and they have not sought reconsideration. The Commission is also not subject to stare decisis, but this does not mean issues should be relitigated based on substantially the same evidence.
![Page 9: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/9.jpg)
- 5 -
expanded in two key respects. First, the FEU submit that there needs to be meaningful
discussion in this Inquiry of the potential benefits of AES to all of FEU’s existing and potential
customers (i.e. natural gas and AES customers) and how AES serves “British Columbia’s energy
objectives”. Issues related to AES should not be limited to identifying risks with AES and the
concerns of the FEU’s competitors, which are the pervasive themes in the Staff Working Paper.
In the final scoping order, all issues should be presented in a balanced way.
10. Second, the Inquiry scope must recognize that the Commission’s ability to make
certain directions and determinations contemplated in the Staff Working Paper is very much a
live issue. The Commission can only hear a complaint on, or initiate an inquiry into, matters
within its jurisdiction. The FEU will argue at the conclusion of this Inquiry that there are some
issues included in the Staff Working Paper that relate to matters over which the Commission
has no jurisdiction (for example, in respect of management decisions and competition issues),
and therefore the Commission would exceed its jurisdiction by stipulating guidelines on such
matters.
11. The aspect of the ESAC’s Complaint that focused on their ability to participate in
past processes also warrants comment. The processes relating to the 2008 and 2010 LTRPs, the
Biomethane Application, NGV Application, 2010-2011 RRA, EEC Application and EEC for NGV
were open to the public, well advertised according to Commission direction, and involved
interventions or commentary by customer groups, industry groups, and other public utilities.13
In these proceedings, the Commission had the benefit of comprehensive evidence, in the form
of filings and thousands of Information Requests.14
13 For example, in the 2008 Resource Plan proceeding, ROMS, BC Hydro, MEMPR, CEC and BCOAPO intervened; in
the Biomethane proceeding, BC Agriculture Council, BC Bioenergy Network, BC Hydro, CEC, BCSEA and BCOAPO intervened; in the NGV proceeding, BC Hydro, BCSEA, BCOAPO and CEC have intervened.
Decisions were posted online. The FEU
submits that the Commission should not accept that portion of ESAC’s Complaint premised on
the notion that the FEU has conspired to limit ESAC’s ability to participate to date, and that the
results of past proceedings are somehow invalidated by ESAC’s non-participation. The FEU are
prepared to address the ESAC Complaint head-on, but the starting point should be that ESAC
14 IR’s in these proceedings totalled 2098. This total does not include IRs from the FEI and FEVI RRA for 2010-2011.
![Page 10: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/10.jpg)
- 6 -
members, who are large, sophisticated commercial enterprises, have had sufficient opportunity
to participate in all proceedings to this point.
12. Finally, issues raised by the Complainants and the Staff Working Paper have
relevance to entities other than the FEU. The FEU submit that, to the extent that AES matters
remain within scope, the Companies should be able to probe as part of this Inquiry the business
models of Corix and ESAC members and how much they really differ from what the FEU is
doing. The FEU will submit in this Inquiry that there are in fact substantial similarities between
how these entities run their AES business (e.g. Corix operates multiple utility services within a
single entity under a common brand), and it should remain a live issue in this Inquiry whether
the outcome of this Inquiry should affect those providers of AES as well.
C. ORGANIZATION OF SUBMISSION
13. The remainder of this Submission is organized as follows:
(a) Part Two: Inquiry Issues and Scope explains why the Inquiry should be confined to AES-related issues not previously determined, and the issues should be reformulated in the scoping order with regard to the legal context and the importance of a balanced hearing.
(b) Part Three: Inquiry Process sets out an efficient process that contemplates legal and jurisdictional issues being addressed only in legal submissions filed by counsel (and not in information requests); some issues being addressed through a written hearing process; and issues that go to substance of the complaints and AES culminating in an oral hearing.
(c) Part Four: Inquiry Timing proposes a timetable based on the Inquiry scope and process articulated in these Submissions, which provides all participants with a meaningful opportunity to participate.
(d) Part Five sets out FEU’s conclusions regarding the scope of the Inquiry.
(e) Appendix “A” is a table that sets out the issues from the Staff Working Paper that FEU submits are appropriate for this Inquiry, and a reformulation of those issues in neutral terms.
(f) Appendix “B” is a table that sets out each of the issues from the Staff Working Paper, and for each issue indicates whether FEU submits that it is appropriate or
![Page 11: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/11.jpg)
- 7 -
inappropriate for the Inquiry, and the specific section of these submissions in which the issue is discussed.
14. FEU has also filed an Exhibit Book that contains the documents referred to in
these submissions, with the exception of the previously filed applications referred to, which
have not been included due to their large size and their availability on the BCUC’s website.
![Page 12: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/12.jpg)
- 8 -
PART TWO: INQUIRY ISSUES AND SCOPE
A. INTRODUCTION
15. In this Part, the FEU address the proper scope of this Inquiry with reference to
the Staff Working Paper. The FEU submit that a number of the issues identified in the Staff
Working Paper should be excluded from the scope of this Inquiry, and that the remaining issues
should better account for the legislative framework and the customer and policy rationales for
the FEU pursuing AES.
16. This Part is organized as follows:
(a) Section B discusses an issue that directly undermines business initiatives undertaken by the FEU and its customers in good faith reliance upon prior Commission approvals.
(b) Section C identifies several previously determined issues that should be excluded from the Inquiry.
(c) Section D explains why the Inquiry should focus on AES, leaving any undecided issues relating to NGV, Biomethane, EEC, and the Resource Planning Guidelines to be considered in other processes.
(d) Section E speaks to the need for the Inquiry to address the limits of the Commission’s ability to establish guidelines.
(e) Section F provides a rationale for formulating all issues in a balanced manner that reflects the legislative framework, recognizes that there are benefits to customers associated with the FEU’s initiatives, and acknowledges that the initiatives meet British Columbia’s energy objectives.
B. FEU MUST BE FREE TO PROCEED ACCORDING TO EXISTING APPROVALS
17. The Staff Working Paper identifies as an issue whether the approved rate
constructs for AES cease to have effect beyond the term of the 2010-2011 RRA Negotiated
![Page 13: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/13.jpg)
- 9 -
Settlement Agreement (NSA).15
(a) Approved 2010-2011 RRA NSA Contemplated Rate Structures Continuing
The suggestion that this is even a possibility is at odds with the
2010-2011 RRA NSA. Including this as an Inquiry issue raises serious and immediate business
concerns for the FEU and customers that have made commercial decisions, including investing
significant capital, in reliance on the approvals remaining in place. The FEU submit that
including this issue in the Inquiry is fundamentally unfair, and it should be excluded from the
Inquiry’s scope.
18. The FEI 2010-2011 RRA NSA addressed AES, as that term was defined in the
proposed Section 12A of the General Terms and Conditions (GT&C’s), i.e. solar thermal,
geothermal and district energy systems. The RRA proceeding concluded with the Commission
having approved: (a) Section 12A of the GT&C’s “Alternative Energy Extensions”; (b) a deferral
account to record the costs and revenues attributable to the AES business; and (c) an allocation
of overhead from the natural gas business to the AES business that would keep natural gas
customers whole. These were the essential rate constructs to establish and develop the AES
class of service within FEI. Moreover, the Commission approved a mechanism for the FEU to
bring forward AES projects, which involved the FEU applying an approved economic test and
filing project-specific contracts:
In evaluating AES projects, TGI will apply the economic test outlined in the Application. The Parties agree that the proposed GT&C (Section 12A – Alternative Energy Extensions) are acceptable. Pursuant to the Utilities Commission Act, within the Alternative Energy class of service, project-specific contracts with AES customers will be filed with the Commission for acceptance as a rate, at which time the Commission may review and adjust the economic test and GT&C Section 12A – Alternative Energy Extensions.
The CPCN threshold of $5 million applies to AES projects brought forward in 2010 and 2011.16
15 The particular issue of concern, with the most objectionable portion underlined, is as follows: “Do tariff
provisions, if flowing from a commission order approving an NSA, imply a regulatory policy? To what extent do issues resolved in an NSA become policy positions at the Commission? Should the Commission approval be limited to the duration of the test period?” [Issue 3, sub-issue]
16 2010-2011 RRA NSA, Order G-141-09, Appendix A, p. 9 of 110; FEU Exhibit Book, tab 5.
![Page 14: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/14.jpg)
- 10 -
19. Nothing in the NSA suggested that the approval of the rate constructs only
extended for two years.17
20. There will be serious business implications if this issue is included within the
scope of the Inquiry, including:
On the contrary, the NSA expressly contemplated that the
Companies would be pursuing AES projects, with the business development costs being
captured in a deferral account and recovered from AES (and not Natural Gas) customers.
Having the right to recover costs from future AES customers necessarily means that the
Companies will have a rate schedule in place going forward that allows the Company to charge
rates. Moreover, the NSA stated that “issues relating to the gas load and gas consumption
profiles of AES projects that incorporate a natural gas component” are to be addressed “once
TGI has sufficient AES customers that take gas so as to provide reliable information on gas load
and gas consumption profiles”. It would be incongruous with this provision for the AES rate
constructs to expire before FEU could ever hope to sign up “sufficient AES customers”.
(a) The FEU have, in reliance upon the Commission’s approvals, developed and pursued AES projects with the expectation that there is a rate mechanism in place to recover the associated costs. The current balance in the AES deferral account at the end of 2010 is $2.530 million.18 At the end of 2011 the balance will include $1 million overhead allocation that was deducted from the natural gas revenue requirement in 2010 and 2011 to the direct benefit of natural gas customers. The UCA requires that the FEU have an opportunity to earn a return on and of capital reasonably invested in reliance on a past Commission order.19
(b) Potential AES customers that want to take AES service from the FEU have entered into negotiations with the FEU in the reasonable expectation that their negotiations can actually result in being able to take service under an approved rate schedule. These customers have their own policy (e.g. GHG reduction) or commercial imperatives that require these negotiations to stay on track.
(c) The uncertainty is a significant barrier to developing projects, both from the perspective of the risk of investing further funds, and from the perspective of customer perception. The mere fact that there is an Inquiry regarding AES at all is a “win” for Corix and ESAC members, the FEU’s competitors, who have not had
17 The comment letters attached to the NSA also did not suggest this; FEU Exhibit Book, tab 6. 18 2012-2013 FEU Revenue Requirement and Rate Application, May 4, 2010, Appendix G. 19 Utilities Commission Act, section 59; FEU Exhibit Book, tab 2. See also ATCO Gas & Pipelines Ltd. v. Alberta,
2006 SCC 4, para. 63; FEU Exhibit Book, tab 14.
![Page 15: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/15.jpg)
- 11 -
to contend with this issue thus far. The commercial problems for the FEU are magnified if the Commission is seen, rightly or wrongly, to be contemplating re-writing past approvals.
(b) Issue Amounts to Re-Litigation of the 2010-2011 RRA Approval
21. The Staff Working Paper ties the question about the expiry of the approved rate
structures to the broader issue of the implications of an NSA for “Commission policy”.
Whether or not one characterizes the approval of AES rate schedules as “Commission policy” or
simply the approval of AES rate structures, the scope of this Inquiry must account for the past
Order. The FEU respectfully submit that the Commission must accept that the Commission’s
approval of AES rate constructs necessarily had lasting implications for the FEU and its
customers, and should focus the Inquiry on issues that remain outstanding.
22. The 2010-2011 RRA was resolved by way of a comprehensive NSA reached by
stakeholders, with the participation of Commission Staff, and with input from the Commission
Panel on “Issues of Particular Concern to the Commission”. The 2010-2011 RRA featured a
considerable evidentiary record on AES, which addressed policy matters, issues of cost
allocation, operational issues, rate design issues, and future review process. The Commission
Panel had to assess all of this evidence to determine whether or not the settlement, including
the AES provisions and Schedule 12A of the GT&C’s, was “just and reasonable”. The
Commission panel also considered comments on the NSA from Commission Staff20,
Government21
20 Commission Staff filed a letter of comment with the NSA which addressed AES, but only to deal with the topic
of cost allocation; there was no suggestion that it objected to the inclusion of AES within the NSA on a policy basis. There was no suggestion that the approval should be time-limited. In fact, on the issue of cost allocation Staff stated: “If Terasen Gas is able to demonstrate that the use of timesheets, direct charges and overhead allocations would result in none of the costs that are incurred for Alternative Energy Solutions including down time and the costs of consultants and studies to be borne by gas customers, then Commission staff’s concern is addressed.” The FEU objected to the comment letter on procedural grounds, but it remained a part of the NSA. FEU Exhibit Book, tab 6.
, and other participants. The Commission Panel determined that the NSA was
“just and reasonable”, without expressing any reservations or initiating a process to re-examine
21 Government filed a letter of comment that supported the inclusion of AES in the NSA: “Alternative Energy Solutions is a new type of service that TGI proposes to offer to existing and new customers. Geo-exchange, solar-thermal and district energy systems offer the potential to reduce greenhouse gas emissions, and as such, the Ministry is encouraged that TGI is proposing to offer this new type of service.” FEU Exhibit Book, tab 6.
![Page 16: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/16.jpg)
- 12 -
any aspects of the NSA.22 The Commission’s NSP Guidelines emphasize the importance of
upholding the NSA once approved.23
(c) New AES Projects to be Submitted According to NSA
A Commission order approving an NSA based on a full
consideration of the evidence is just as valid and enforceable—and carries the same weight
going forward—as an order issued following a written or oral hearing process.
23. The FEU expects that applications for approval of agreements with new AES
customers will be brought forward pursuant to the Commission’s 2010-2011 RRA Order in short
order. The Commission’s consideration of these agreements must proceed according to
commercial timelines, and not be tied up in this Inquiry. The FEU intends to file the agreements
separately, pursuant to the approved process stipulated in the NSA.24
(d) Summary
24. As set out above, the FEU have relied on, and continue to rely on the
Commission’s 2010-2011 RRA order approving AES rate structures in significant ways. The
Commission cannot, as part of this Inquiry, entertain the prospect that the Commission can
eliminate the rate schedule that is the only means of recovering costs spent to date. FEU
22 This action is contemplated in the NSP Guidelines. The Guidelines state at p.9 for instance: “The Commission
panel will normally accept or reject the entire settlement package but if the Commission panel decides to suggest changes to the settlement it will give registered intervenors full opportunity to address any proposed change, including sufficient time to make submissions on the impact of any change to the validity of the overall settlement.” FEU Exhibit Book, tab 16.
23 The NSP Guidelines state at p. 9, for instance: “The benefits of the negotiated settlement process will only be realized if participants are bound to the terms of the agreement.” And further: “Amendments will not be made once the Commission panel has reviewed and accepted the terms of a settlement.” FEU Exhibit Book, tab 16.
24 FEI has a number of Thermal Energy Service (TES) projects for which there are recently signed agreements with customers or finalizing and signing of the agreements is imminent. In terms of signed TES agreements FEI has one in place with a developer for a condominium project in Tsawwassen (Shato Holdings) and one for the Helen Gorman School in Kelowna. Signed agreements are expected to be in place soon for the Delta Schools project and two other condominium developments. In addition, FEI is actively working on District Energy Projects in Kelowna, Coquitlam, Quesnel and the District of North Vancouver. For the two projects with signed agreements FEI is in the process of preparing applications to file with the Commission for approval of the rates, in keeping with the terms of the approved FEI 2010-2011 RRA NSA. FEI anticipates filing these applications within the next 60 days. Applications for the other three nearly-complete agreements, as well as the District Energy Projects, will also be submitted for Commission approval of the rates soon after the agreements have been finalized and signed. FEI is also currently working on many other TES projects at varying stages of completion not listed above, some of which may have signed agreements in place in 2011. FEI will file for Commission approval of the rates after the signed agreements are in place.
![Page 17: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/17.jpg)
- 13 -
submits that it must be allowed to file contracts for approval as contemplated by the NSA,
without those commercial arrangements being caught up in this Inquiry. Unless there is a
preliminary determination to exclude this issue from the Inquiry, there is a real potential for the
Complainants to misuse a lengthy Inquiry process as a means of disadvantaging the FEU in
competing for customers in the interim period.
C. NON-ISSUES THAT SHOULD BE SET ASIDE AT THE OUTSET
25. The Staff Working Paper identifies as issues a number of matters that are either
long-settled and beyond doubt, founded on a misconception of the law, or concerned with
legislative matters beyond the control of any parties. These issues are as follows:
(a) Issues relating to whether AES are a regulated public utility service in British Columbia, or assume that AES are non-regulated businesses (“NRBs”);
(b) Issues relating to the applicability of the RMDM Guidelines;
(c) Issues relating to whether the FEU are or can be constrained in the use of the FortisBC name; and
(d) An issue inquiring about the potential for the LGIC to use section 18 of the CEA to identify “prescribed undertakings”.
For the reasons set out below, the FEU submit that the Staff Working Paper issues falling within
these categories should be excluded from the scope of the Inquiry in recognition of the legal
framework created by the Act and the importance of maintaining an efficient Inquiry process.
(a) AES is a Regulated Public Utility Service
26. The following issues included in the Staff Working Paper inquire, either directly
or indirectly, about whether or not AES are a regulated public utility service, or assume that AES
are, or could be, provided to the public as a non-regulated service:
• “Are members of Energy Services Association of Canada (ESAC) public utilities as defined in the Utilities Commission Act?” [Issue 1, sub-issue]
• “Can an AES and fuelling service provider remain unregulated under the UCA?” [Issue 5, sub-issue]
![Page 18: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/18.jpg)
- 14 -
• “Is there appropriate separation of regulated and non-regulated businesses in the current website of the utility fortisbc.com similar to the previous separation of business in the websites of terasengas.com (regulated) and terasen.com (non-regulated)?” [Issue 5, sub-issue]
• “What products and services related to AES and New Initiatives are in the proper domain of a public utility?” [Issue 5, sub-issue]
• “Should the transfer of assets and services from TES to FEI be subject to review?”25
27. For the reasons set out below, the FEU submit that AES are regulated public
utility services under the UCA. This issue has been decided previously on a number of occasions
in respect of other utilities and the same principles should be applied to the FEU. As a result,
the above “issues” should be excluded from the scope of this Inquiry.
[Issue 6, sub-issue]
28. The Commission’s jurisdiction to regulate an entity and its services is defined by
the definition of “public utility” in section 1 of the UCA. The key sections in Part 3 of the UCA
(e.g. sections 45, 44.1, 44.2, 59-61) are applicable only to a “public utility”. The definition of
“public utility” provides in part:
"public utility" means a person, or the person's lessee, trustee, receiver or liquidator, who owns or operates in British Columbia, equipment or facilities for
(a) the production, generation, storage, transmission, sale, delivery or provision of electricity, natural gas, steam or any other agent for the production of light, heat, cold or power to or for the public or a corporation for compensation, or… [Emphasis added.]
29. The FEU has an approved GT&C’s Section 12A “Alternative Energy Extensions”
that describes the services subject to its terms and conditions as including geothermal, solar-
thermal and district energy systems.26 In general terms, the AES systems contemplated by the
FEU use one or more fuel sources, generally including natural gas27
25 This sub-issue has been included in this group because the transfer of regulated assets are necessarily subject
to Commission review under section 52 of the UCA, and the transfer of non-regulated assets are not.
, to provide thermal energy
to customers attached to the system. The customer is charged a rate for thermal energy. AES
26 FEU Exhibit Book, tab 18. 27 Natural gas service within these AES projects would be billed under existing natural gas tariffs.
![Page 19: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/19.jpg)
- 15 -
as described in the approved GT&C’s Section 12A are, by definition, subject to regulation by the
Commission because they involve the provision of thermal energy (heat or cold) to the public or
a corporation for compensation. The same is true regardless of who – the FEU, ESAC members
or Corix—owns the infrastructure used to provide thermal (heat or cold) energy service to the
public for compensation. Instances where a thermal energy service provider will not be
regulated are if the entity does not provide thermal energy (heat or cold) to the public or a
corporation for compensation (e.g., it is using the thermal energy for its own purposes or is not
seeking compensation), if the alternative energy service fits within an exception under the
definition of “public utility” (e.g., the entity is owned by a municipality), or if the public utility is
exempted by regulation under section 22 from the application of Part 3 of the UCA by
regulation. None of these exceptions applies to the FEU, and the FEU anticipates that the
answer is the same for Corix.
30. In the case of the FEU, the Commission implicitly acknowledged its jurisdiction
over AES (geothermal, solar thermal and district energy systems) provided by the FEU in
approving GT&C Section 12A “Alternative Energy Extensions”. Even before the Commission
approved the FEU’s (public utility) rate structures for AES as part of the 2010-2011 RRA, the
Commission had been regulating similar systems as public utility services for many years. The
following systems currently provide thermal energy to the public for compensation, were
granted CPCN’s by the Commission, and have Commission-approved rates:
(a) Dockside Green - The Commission granted a CPCN to the Dockside Green Energy LLP on April 17, 2008, to construct and operate a district energy system to provide energy service to the Dockside Green development built on the Inner Harbour in Victoria. The facility applied for was a biomass facility to provide hot water heating to the development.28
(b) Corix UniverCity - Corix Multi-Utility Services Inc. filed an Application for a CPCN to construct and operate an alternative energy-based district energy system for the UniverCity residential community on Burnaby Mountain. The proposed
FortisBC Alternative Energy Services Inc. and the Complainant Corix are part owners of the Dockside Green utility.
28 In the Matter of an Application by Dockside Green Energy LLP for Approval of a CPCN to Construct and Operate
a District Energy System for the Dockside Green Project in Victoria B.C., April 17, 2008, Reconsideration Decision, June 30, 2008. FEU Exhibit Book, Tabs 10 and 11.
![Page 20: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/20.jpg)
- 16 -
district energy system would consist of a production facility and a distribution system. The production facility is planned to be built in two steps: a natural gas fuelled temporary Central Energy Plant (CEP) followed in 2016 by a permanent CEP fuelled by an alternative energy source likely to be Biomass. The Commission granted the CPCN for the temporary CEP only last month.29
(c) Central Heat Distribution Limited – Central Heat has held a CPCN since June 11, 1968, which was issued by the Public Utilities Commission to construct and operate a steam generating plant and attendant distribution system for the purpose of supplying steam for heating and cooling uses in the City of Vancouver.
30
31. Section 45 only applies to a “public utility”, and by definition a CPCN can only be
issued to a “public utility”. Similarly, the rate setting provisions relied upon to fix rates for each
of the above district energy (AES) systems only apply to a “public utility”. In each of the above
cases, it is evident that the Applicants and the Commission took for granted that the system
was regulated and required a CPCN and approved rates. For instance, in the recent Corix
UniverCity application, there was not a single IR inquiring about this issue and no mention of
the issue in the Commission’s decision granting a CPCN pursuant to section 45 of the UCA.
Rates have been approved by the Commission ever since.
32. The proper interpretation of the UCA is a legal issue that does not require
evidence in this Inquiry to determine. In light of the significant body of precedents, and the
straightforward nature of the definition of “public utility”, there is no basis to proceed with the
issues set out above at paragraph 26 any further. The Commission should find, as part of the
scoping order, that these are regulated public utility services.
(b) RMDM Do Not Govern the Relationship Between Two Regulated Classes of Service
33. Issues relating to the applicability and effect of the RMDM Guidelines are closely
related to the issue of whether AES is a public utility service. The Staff Working Paper includes
the following issues relating to RMDM in the context of the FEU providing AES:31
29 Corix Multi-Utility Services Inc., Re In the Matter of Corix Multi-Utility Services Inc. British Columbia Utilities
Commission, May 6, 2011. FEU Exhibit Book, tab 9.
30 See discussion In the Matter of the Energy Act and In the Matter of Applications by Central Heat Distribution Limited, Decision, October 22, 1975, p. 1; FEU Exhibit Book, tab 8.
31 RMDM was also raised by Corix.
![Page 21: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/21.jpg)
- 17 -
• “… Are the RMDM … Guidelines still relevant and applicable in regulating FEI’s entry into ‘new’ business or should they be updated to reflect the current energy operational and planning environment. Have there been deviations from the RMDM Guidelines by FEI in some of its activities?” [Issue 6, sub-issue]
• “Do the RMDM Guidelines adequately address generation and delivery infrastructure for thermal energy as part and parcel of ‘core utility assets’? [Issue 6, sub-issue]
• “How should the Commission deal with programs or activities that in some ways go outside the RMDM Guidelines.” [Issue 6, sub-issue]
• “Are the AES, refuelling stations, and district energy systems’ core monopoly projects as contemplated in RMDM?” [Issue 6, sub-issue]
34. RMDM addresses the relationship between a regulated and non-regulated
business, not the relationship between two regulated classes of service within a single utility. 32
35. There are specific sections of the UCA contemplating the regulation of multiple
“classes of service”
As described above, AES—whether provided by the FEU, Corix or ESAC members—is a
regulated public utility service upstream of the utility meter, just like natural gas or electricity
utility services. Hence, the relevant issue for the Inquiry is not RMDM, but rather how the UCA
addresses the relationship between two regulated “classes of service” within the same public
utility.
33
21(2) The provision by a public utility of a class of service in respect of which the public utility is not subject to the legislative authority of the Province does not make this Part inapplicable to that public utility in respect of any other class of service.
within a single utility, which although not mentioned in the Complaints or
the Staff Working Paper, should be a key focus of the Inquiry. These sections include:
32 At p. 1, the RMDM states: “This document summarizes the submissions made with respect to the staff position
paper and concludes with the findings of the Commission with respect to the participation of utilities and their NRBs in the retail market downstream of the utility meter.”; FEU Exhibit Book, tab 17. [Emphasis added.] See also the opinion of Commission Counsel; FEU Exhibit Book, tab 19.
33 The Act defines “service” as follows: “’service’ includes (a) the use and accommodation provided by a public utility, (b) a product or commodity provided by a public utility, and (c) the plant, equipment, apparatus, appliances, property and facilities employed by or in connection with a public utility in providing service or a product or commodity for the purposes in which the public utility is engaged and for the use and accommodation of the public.” FEU Exhibit Book, tab 2.
![Page 22: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/22.jpg)
- 18 -
…
60 (1) In setting a rate under this Act
(c) if the public utility provides more than one class of service, the commission must
(i) segregate the various kinds of service into distinct classes of service,
(ii) in setting a rate to be charged for the particular service provided, consider each distinct class of service as a self contained unit, and
(iii) set a rate for each unit that it considers to be just and reasonable for that unit, without regard to the rates fixed for any other unit.
36. The 2010-2011 RRA NSA expressly contemplated that AES be treated as a
separate “class of service” according to the UCA, and there have been other examples of a
public utility offering different classes of service over the years:
(a) BC Hydro had gas and electric classes of service prior to the sale of the gas assets.
(b) FEI provides propane service in Revelstoke in addition to providing natural gas service and AES service.
(c) As implied by its name, “Corix Multi-Utility Services Inc.” offers multiple services (e.g. water, wastewater, gas, heat, electricity, etc.) within a single entity. Corix’s letter describes itself as providing “multi-utility services, including alternative energy services” [Emphasis added.] Different projects within the Corix company even earn a different return on equity.
37. The Commission has acknowledged the benefits of having different classes of
service under one public utility, as opposed to a proliferation of small, but related utilities
under the same parent:
Certainly, it is likely to be less efficient and more costly from the Commission´s perspective to regulate a number of small utilities, rather than one larger utility serving the same customers. Going forward, the Commission expects TES and TGI to consider and address this concern when they are developing plans to serve new
![Page 23: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/23.jpg)
- 19 -
developments and groups of customers that are in or near TGI´s service area. The Commission is not certain that a proliferation of small, but related utilities, all under the same parent, TI or KMI, is necessarily in the public interest.34
38. For these reasons, the FEU submit that issues relating to RMDM should be
removed from the scope of this proceeding and replaced with issues addressing how the UCA
treats multiple “classes of service” within the same public utility. The FEU have formulated
appropriate issues in the list of issues included as Appendix “A” to this Submission.
(c) Use of FortisBC Name
39. The Staff Working Paper sets out two issues regarding the right of a public utility
to trade on its market profile and goodwill:
• “Do existing regulatory guidelines disallow FEI from trading on its market profile?” [Issue 5 sub-bullet]
• “Is there appropriate separation of regulated and non-regulated businesses in the current website of the utility fortisbc.com similar to the previous separation of business in the websites of terasengas.com (regulated) and terasen.com (non-regulated)?” [Issue 5, sub-issue]
The FortisBC name is owned by the non-regulated parent company and licensed to the
regulated utilities.
40. This would not be an appropriate issue even if the FortisBC name was owned by
the FEU. In the RMDM proceeding the Commission considered submissions and an opinion
from Commission Counsel (Mr. Fulton) on this issue. Mr. Fulton’s opinion stated in part:
In our opinion, regulated public utilities in B.C. have the right to own goodwill and their corporate name unless there is a specific legislative rule to the contrary. Furthermore, the shareholders of the public utility own a share of those assets, subject to legislation to the contrary. We considered the provisions of the Company Act, the Utilities Commission Act, and the B.C. Hydro and Power Authority Act. There are no provisions in any of the three statutes that specifically state that a public utility does not own its goodwill and corporate
34 Gateway Lakeview Estates CPCN Decision, December 14, 2006, p. 2; FEU Exhibit Books, tab 12.
![Page 24: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/24.jpg)
- 20 -
name, nor are there any provisions that affect the principle that shareholders own a right to share in the goodwill of a public utility upon dissolution.35
41. The FEU is using the FortisBC name for its own regulated services, something
that in Commission Counsel’s opinion (relied upon by the Commission in the RMDM process) it
would have the right to do even if the FEU owned, rather than licensed, the name.
36
42. Alternatively, in the event that the Commission includes this issue in the Inquiry,
it should not be limited to the FEU’s provision of AES. Of particular note, the Complainant
Corix, which raised the issue, uses its name to promote a variety of services that fall outside of
the Commission’s regulatory purview. If this issue remains in scope, which it should not, the
FEU should be free to pursue this issue with Corix and ESAC.
As a
result, these issues should not be included within the scope of the Inquiry.
(d) Section 18 “Prescribed Undertakings”
43. Under Issue 4 in the Staff Working Paper, the following issue is identified:
• “What is the potential of certain AES, Natural Gas Vehicles (NGV) or biogas undertakings being named as a “prescribed undertaking” for the purpose of reducing greenhouse gas emissions in British Columbia as set out in section 18 of the Clean Energy Act? In setting rates under the UCA for a public utility carrying out a prescribed undertaking, the Commission must set rates that allow the public utility to collect sufficient revenue in each fiscal year to enable it to recover its costs incurred with respect to the prescribed undertaking.” [Issue 4, sub-issue]
44. In order for an undertaking to become a section 18 “prescribed undertaking”
there must be legislative action by government, and only government knows if and when
regulations stipulating new “prescribed undertakings” will be issued. No amount of debate by
the parties in this Inquiry can resolve this issue.37
35 Memorandum of Boughton Peterson Yang Anderson (Gordon Fulton) dated March 10, 1997 to the B.C. Utilities
Commission, p. 10; FEU Exhibit Book, tab 19.
The FEU submit that this irrelevant issue
should be removed in the interest of regulatory efficiency.
36 Memorandum of Boughton Peterson Yang Anderson (Gordon Fulton) dated March 10, 1997 to the B.C. Utilities Commission, pp. 10-12; FEU Exhibit Book, tab 19.
37 Clean Energy Act, section 18; FEU Exhibit Book, tab 1.
![Page 25: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/25.jpg)
- 21 -
(e) Summary
45. FEU submits that the issues discussed in the above section should be scoped out
of the Inquiry as they have already been decided. Re-visiting these issues in the absence of a
compelling basis to do so will either result in a waste of time and expense, should the
Commission decide these issues as it has done in the past, or it will result in undermining the
Commission’s credibility, if it decides these issues in a manner inconsistent with previous
decisions.
D. NGV, BIOMETHANE, AND EEC BEST ADDRESSED IN ANOTHER CONTEXT
(a) Introduction
46. In this section, the FEU explains why issues identified in the Staff Working Paper
relating to Biomethane, NGV and EEC should be excluded from the Inquiry. An attribute that
the FEU’s EEC, NGV Biomethane and AES initiatives have in common is that they are recently-
introduced low carbon or efficiency-related initiatives designed to respond to public policy and
customer demand. While these issues share common policy and customer drivers, they are
each distinct offerings that raise unique issues at the level of public interest review, rate setting,
and other related regulatory considerations. Many of the policy, public interest and rate design
issues relating to these initiatives have been addressed in prior, initiative specific, proceedings
before the Commission. To the extent that public interest and rate design issues regarding
these offerings remain unresolved, the FEU submits that they should be addressed in another
context.
(b) Staff Working Paper Issues Relating to Biomethane, NGV and EEC
47. The matters raised in the Staff Working Paper relating to Biomethane and NGV
are as follows:
• Do regulatory issues related to AES, biogas, and Natural Gas Vehicles overlap? [Issue 2]
• Should a hearing process be limited to a single activity, e.g. AES only? Should the hearing include all “new” energy solutions but have them reviewed by phases
![Page 26: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/26.jpg)
- 22 -
within a hearing? Should all “new” energy solutions be within one hearing? [Issue 2 sub-issue]
• “Can an AES and fuelling service provider remain unregulated under the UCA?” [Issue 5 sub-issue, Staff Working Paper]
• “As a gas distribution utility, should FEI be allowed to move up the supply chain and keep this activity within the regulated format as proposed in its biogas business model?” [Issue 5, sub-issue]
• “Should there be a ‘call for energy (natural gas)’ to ensure a competitively priced supply of biogas?” [Issue 5, sub-issue]
• “Are the AES, refuelling stations, and district energy systems’ core monopoly projects as contemplated in RMDM?” [Issue 6, sub-issue]
• “Is there appropriate separation of regulated and non-regulated business and FEI? Should there be distinct separation of regulated and non-regulated businesses to avoid any potential for cross-subsidization and would that ensure a level-playing field?” [Issue 6, sub-issue]
48. The matters raised in the Staff Working Paper relating to EEC are as follows:
• “Where approval for Energy Efficiency & Conservation (EEC) funding should be examined – revenue requirements, ad hoc applications, EEC long-term plans, CPCN?” [Issue 4, sub-issue]
• “Non-discriminatory availability of EEC incentive funding to non-FEI affiliated entities.” [Issue 4, sub-issue]
• “How EEC incentive funding should be determined, applied, and monitored to ensure cost-effectiveness.” [Issue 4, sub-issue]
• “Accessibility of EEC incentive funding through a transparent call for tenders.” [Issue 4, sub-issue]
• “Should AES applications be heard before or in conjunction with an EEC funding request.” [Issue 5, sub-issue]
(c) Overlap is at the Long-Term Planning Level
49. As discussed above, the FEU believe that the EEC, NGV, Biomethane and AES
initiatives are unique, and that each initiative has had the unique aspects of its intended
market, business model proposals, and regulatory constructs extensively canvassed in prior
![Page 27: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/27.jpg)
- 23 -
proceedings before the Commission. Each initiative will continue to be examined in initiative-
specific regulatory proceedings. A significant common thread that commends the examination
of overlap issues among these initiatives in future LTRPs is that they will all affect natural gas
demand going forward as they grow and develop. Long term natural gas and thermal energy
demand forecasts, and their impact on supply resources and infrastructure, and their potential
contribution to provincial energy objectives are all appropriate aspects to deal with in future
FEU resource planning processes.
(d) Upholding Prior Determinations on NGV, EEC and Biomethane
50. The FEU submit that the Commission should strive to avoid relitigating or
duplicating prior or current proceedings based on the same policy and evidentiary framework.
Biomethane38, NGVs39 and the EEC40
(e) Comprehensive Regulatory Review of Biomethane Completed
framework have been addressed in previous or current
proceedings before the Commission. The Commission, in establishing the scope of this Inquiry,
must not assume that a further review of previously determined matters relating to the
Biomethane, NGV and EEC initiatives will yield a more accurate result than the original
proceedings. Revisiting the same issues relating to Biomethane, NGV and EEC based on an
unchanged evidentiary, legal, and policy context necessarily results in one of two undesirable
outcomes: either the same result is reached, in which case the Inquiry has been wasteful of
Commission and participant resources, or an inconsistent result on the same issue will, in and
of itself, undermine the credibility of the process. In the remaining subsections, FEU outlines
the issues that have already been resolved regarding Biomethane, NGV, and EEC.
51. The FEU brought forward a Biomethane proposal in the 2010-2011 RRA. In the
NSA, the parties agreed that the FEU would drop that proposal in the RRA, and instead bring
38 FEI filed the Biomethane Application on June 8, 2010; the decision approving the application was made on
December 14, 2010, Order No. G-194-10; FEU Exhibit Book, tab 13. 39 FEI filed the Application for Approval of a Service Agreement for Compressed Natural Gas Service and for
Approval of General Terms and Conditions for CNG and Liquified Natural Gas Service, on December 10, 2010; the decision is currently pending.
40 FEI and FEVI filed the EEC Application on May 28, 2008; the decision approving EEC funding was made on April 16, 2009 (Order No. G-36-09); FEU Exhibit Book, tab 4.
![Page 28: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/28.jpg)
- 24 -
forward a Biomethane Application during the test period.41
(a) the supply model (two supply models with the primary difference being who owns and operates the upgrader);
FEI filed the Biomethane
Application on June 8, 2010. In the Biomethane Application, the Company set out an end to
end business model that addressed:
(b) the specific rate offering allowing for a notional sale of Biomethane to FEI customers who elect the service on a voluntary basis; and
(c) a cost allocation and recovery model which provided for the recovery of costs for the product offering from various customer groups.
52. FEI filed a significant amount of evidence, and there were two substantial rounds
of information requests.42 The Biomethane proceeding was comprehensive and involved the
participation of several interveners representing both customer groups and environmental
groups.43 The Commission issued its decision on December 14, 2010. The Commission
summarized its determinations in the proceeding as follows:44
In its review of the Application, the Commission Panel raised and examined a number of issues in reaching the determinations made in this Decision. The first group of these includes the following: the alignment with British Columbia’s energy objectives and Provincial Government policy, the adequacy of supply for these and future Projects and the level of customer demand for this type of program. On the basis of this examination, the Panel is satisfied the Program is in alignment with both British Columbia’s energy objectives and Provincial Government policy and there is sufficient demand and supply to justify moving forward. Accordingly, the Panel has determined the two Projects are in the public interest and has approved both of them as well as the related capital
41 See NSA p. 11: “The Parties agree that TGI will bring forward an application (the ‘Biogas Application’) during
the test period that will: (a) address the economic assessment model; and (b) provide Biogas rates (including green rate, transportation rate, etc,); and (c) provide for recovery of costs associated with providing Biogas service. TGI may include in the Biogas Application any Biogas Projects under development at that time. TGI is, however, not precluded from applying for Commission approval in respect of individual Biogas Projects at any time, either prior to the Biogas Application or afterwards.” The resolution in the NSA regarding Biogas was driven by the “Issue of Particular Concern to the Commission Panel” identified at the outset of the NSP. It specified: “Biogas – to be reviewed by a CPCN which demonstrates market uptake of customers that are willing to pay the full cost.” FEU Exhibit Book, tab 5.
42 There were over 500 IR’s in this regulatory process. 43 The Commission received final submissions from: CEC, BC Hydro, BCSEA, and BCOAPO. 44 Biomethane Decision, p. 2; FEU Exhibit Book, tab 13.
![Page 29: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/29.jpg)
- 25 -
costs. However, the Panel in reaching this determination has noted that it would be prudent for TGI to thoroughly test the proposed model in the marketplace before reaching a conclusion as to its full market potential.
53. The Commission approved the Biomethane program on a test basis for two
years. The Commission explained the rationale of this period as follows: “We believe that
reducing this time period to a period of two years will allow TGI sufficient time to launch some
additional projects and undertake the analysis necessary to provide an adequate basis for
review.”45
54. Thus, the outcome of the Biomethane Application was that the Commission has
determined that all aspects of the Biomethane offering are regulated public utility services, and
that the offering is aligned with “British Columbia’s energy objectives”, and that the two
projects were in the public interest generally. These and the other issues decided in the
Biomethane Decision should not be re-litigated, as nothing material has changed since then.
The Commission directed FEI to file a post-implementation report within two years
of the date of the order (i.e. December 14, 2012), and to hold a post-implementation workshop
at which it will address the contents of the report.
55. There are outstanding issues that the Commission set aside for future
determination, specifically the Commission did not address an issue regarding ownership of the
upgrading facilities.46
(f) Comprehensive Review of NGV Completed
However, this Inquiry is being initiated well before the end of the two
year review period. The Biomethane program roll out to customers is set to occur this month.
The Commission recognized in the Biomethane Application Decision the need for a period of
time to elapse to allow FEI to undertake the analysis necessary to provide an adequate basis for
the Commission to review the issues identified in the decision in its post-implementation
report. FEI submits that the previously established two year review process, and not this
Inquiry, is the appropriate forum in which to address outstanding issues relating to
Biomethane.
45 Biomethane Decision, p. 56; FEU Exhibit Book, tab 13. 46 Biomethane Decision, p. 2; FEU Exhibit Book, tab 13.
![Page 30: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/30.jpg)
- 26 -
56. The approved 2010-2011 RRA NSA contemplated the FEU bringing a
comprehensive NGV Application,47 which FEI filed with the Commission on December 1, 2010.
The FEI filed a substantial body of evidence in support of the NGV Application. There were
three rounds of information requests, consisting of over 500 questions. In addition to FEI, the
Commission received final submissions from three customer groups,48
57. The scope of the NGV Application was such that the Commission has heard
evidence on, and participants have commented on, a number of issues relating to NGV
including: (a) whether the proposed GT&C’s for CNG and LNG Service are just and reasonable,
and (b) whether investment in CNG and LNG facilities are in the public interest. These two
broad issues required the Commission to consider British Columbia’s energy objectives, the
benefits and risks to customers of investing in refuelling infrastructure, the potential economic
benefits to NGV customers, and the scope of the definition of “public utility” as it applies to
CNG and LNG services.
all of whom supported
the NGV Application. The Commission’s decision on FEI’s NGV Application remains outstanding.
58. The issues identified by the Staff Working Paper are all encompassed within the
issues addressed in the NGV Application. FEI submits that it is inappropriate for the Inquiry to
address matters that have already been addressed in the NGV Application that were heard,
argued, and are currently outstanding. Such matters should be excluded from scope consistent
with administrative law principles that dictate avoiding re-litigation of issues based on the same
(or substantially similar) evidence, avoiding inconsistent decisions, and in the interest of an
efficient process for all stakeholders. The FEU included in the 2012-2013 RRA filed on May 4,
2011, the revenues and costs related to this business for FEI, which has a positive impact in
reducing delivery rates for natural gas customers. These issues must, by their very nature, be
addressed in the RRA and should not be litigated here as well.
47 See NSA at p. 10: “The Parties acknowledge that TGI intends to develop this area of business and that TGI
anticipates it will bring forward applications on NGV projects to the Commission on a case-by-case basis during the term of this Agreement and in future years. The Parties agree that TGI is at liberty to do so.” FEU Exhibit Book, tab 5.
48 BCOAPO, CEC, and BCSEA.
![Page 31: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/31.jpg)
- 27 -
(g) EEC Issues Addressed in Comprehensive EEC Application, RRA, and EEC-NGV Proceeding
59. There has been significant process on EEC issues to date, and there are processes
currently underway that are also addressing EEC issues. The FEU submit that adding EEC issues
to this Inquiry results in administrative inefficiency and re-litigating issues based on
substantially the same evidence and policy.
60. On May 28, 2008, FEI and FEVI filed the EEC Application, for EEC funding for the
2008-2010 period. On April 16, 2009, the Commission issued Order No. G-36-09. It approved
EEC funding in aggregate of $41.5 million ($34.4 million for FEI and $7.1 million for FEVI),
deferral treatment of all expenditures with an amortization period of 10 years, and approval of
a portfolio approach to evaluating the costs and benefits of the overall EEC portfolio. FEI and
FEVI obtained approval in their respective 2010-2011 RRAs for EEC funding for 2010 and 2011
based on the same EEC framework approved in the EEC Application.
61. In April 2011, the Commission initiated a further regulatory review process on
the use of EEC incentives for NGV (the “2011 NGV-EEC Proceeding”). The Commission’s review
necessitated a review of the EEC framework as a whole, as the FEU’s understanding of the
approved framework underlies its decision to allocate approved EEC funding to NGV. Customer
groups and other stakeholders (such as the Ministry of Energy and Mines) supported the
Company’s position in these matters. A decision on the 2011 NGV-EEC Proceeding is also
outstanding.
62. The Commission determined as part of the NGV-EEC Proceeding that all other
matters relating to the 2010 EEC Report should be addressed in the 2012-2013 RRA process.
The FEU have also included an EEC funding request for 2012 and 2013 in the RRA, with a
proposal to address future funding beyond 2012 and 2013 in the context of the next FEU LTRP.
63. The Staff Working Paper includes the issue: “How EEC incentive funding should
be determined, applied, and monitored to ensure cost-effectiveness”. This issue raises the very
issues that were previously addressed in the 2009 decision and are currently being clarified in
![Page 32: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/32.jpg)
- 28 -
the NGV-EEC Proceeding. EEC-related issues should be excluded from this Inquiry, and can be
dealt with as part of the current 2012-2013 FEU RRA process.
(h) Summary Regarding NGV, Biomethane and EEC
64. The appropriate venue for examining new initiatives and their impact on natural
gas demand in BC and helping to achieve BC energy objectives on a comprehensive basis is the
LTRP, as the overlap among these initiatives is most relevant in the long-term planning context.
FEU submits that the Commission should avoiding re-litigating the policy, public interest and
rate design issues canvassed in the EEC, Biomethane, NGV and EEC-NGV Applications, in order
to ensure an efficient proceeding, preserve the credibility of the Commission process, and
ensure that the FEU is able to continue participation in these areas pursuant to existing orders
without disruption. There may well be outstanding issues from the past applications that can
be considered; however, the FEU submit that there are more appropriate venues for addressing
them. All issues relating to EEC, NGV and Biomethane initiatives as set out above in paragraphs
47 and 48 should be excluded from the scope of the Inquiry.
E. FOCUS OF THE GUIDELINES
65. The Inquiry Order states that the proposed Inquiry is established pursuant to
sections 23, 72, 82 and 83 of the Act, and that the Inquiry will be a consideration of “FEI
offering Products and Services in Alternative Energy Solutions and New Initiatives”. The Staff
Working Paper states that the intended outcome of the Inquiry is to make determinations in
the form of “guidelines” for FEI “in its move towards providing Alternative Energy Services and
other New Initiatives”, but also leaves open the possibility of expanding the focus of the Inquiry
to apply to other providers of AES and new initiatives. Guidelines can be an appropriate means
of ensuring administrative consistency in decision making. However, the FEU submit that the
Commission can only issues guidelines on matters falling within its jurisdiction. FEU submits
that some of the issues raised in the Staff Working Paper invite the Commission to exceed its
jurisdiction. In this section, FEU discusses the proposed legislative basis for the Complaints and
the Inquiry, and identifies some key jurisdictional issues that the FEU will raise at the conclusion
of this Inquiry. The jurisdictional issues identified below have been included in the FEU’s
![Page 33: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/33.jpg)
- 29 -
reformulated issues list attached as Appendix “A” to this Submission. Whatever guidelines are
developed at the conclusion of the Inquiry should be applied equally to other providers of AES,
including Corix and ESAC members.
(a) Section 72 Concerns What a Public Utility “Has Done, is Doing, or Has Failed to Do”
66. Section 72, cited in the Inquiry Order, provides the Commission with a
jurisdiction to hear applications from persons complaining “that a person constructing,
maintaining, operating or controlling a public utility service or charged with a duty or power
relating to that service, has done, is doing or has failed to do anything required by this Act.”
[Emphasis added.] In this Inquiry, the FEU intend to raise the issue of how the words “has
done, is doing or has failed to do anything required by this Act” impact the Commission’s ability
to direct this Inquiry at what FEU can do in the future.
(b) The Limits of the Commission’s Jurisdiction Over Utility Management and Competition
67. Sections 82 and 83 give the Commission the power to inquire into a matter on a
Complaint or “on its own motion”, but such inquiries must be in relation to “a matter that
under this Act it may inquire into, hear or determine on application or complaint”.49
68. A number of issues in the Staff Working Paper presume that the Commission has
jurisdiction over the management of the FEU’s business, which is something that FEU disputes.
A good example of this type of issue is: “Should internal business cases be subject to regulatory
review and reporting…?”
In other
words, any inquiry initiated in response to a complaint or on the Commission’s own motion
must be based on a section of the UCA that provides the Commission with a substantive
jurisdiction to determine a particular subject matter. The FEU will be raising the issues of the
Commission’s jurisdiction over the management of the FEU’s business and its jurisdiction to
regulate competition in this Inquiry.
50
49 Act, section 82; FEU Exhibit Book, tab 2.
Other issues go further, implying that the Commission could make
50 Issue 4, sub-issue.
![Page 34: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/34.jpg)
- 30 -
determinations regarding whether or not the FEU can pursue AES.51 However, the BC Court of
Appeal’s decision in BC Hydro v. British Columbia Utilities Commission (“BC Hydro v. BCUC”)
makes clear that the management of a public utility remains the responsibility of utility
management.52
56 It is only under s. 112 [now section 97] of the Utilities Act that the Commission is authorized to assume the management of a public utility. Otherwise the management of a public utility remains the responsibility of those who by statute or the incorporating instruments are charged with that responsibility.
The Court of Appeal concluded, for instance:
…
58 Taken as a whole the Utilities Act, viewed in the purposive sense required, does not reflect any intention on the part of the legislature to confer upon the Commission a jurisdiction so to determine, punishable on default by sanctions, the manner in which the directors of a public utility manage its affairs. 53
69. FEU welcomes the opportunity to further explore the scope of the Commission’s
jurisdiction as set out in BC Hydro v. BCUC through this Inquiry. Based on the Court of Appeal’s
decision, the FEU will be arguing in this Inquiry that the Commission’s ability to review a public
utility’s AES projects and initiatives is limited to the extent contemplated in the UCA.
70. The Commission’s ability to prescribe guidelines in the area of competition must
also be addressed in this Inquiry as a number of issues presume that the Commission has
jurisdiction in this area, which FEU disputes. BC Hydro v. BCUC, for instance, makes clear that
this is a live issue:
51 For example, the following issue: “Appropriateness of FEI providing Alternative Energy Solutions (AES) and
other 'new' solutions as a traditional gas distribution utility”. 52 (1996), 20 B.C.L.R. (3d) 106 (C.A.); FEU Exhibit Book, tab 15. 53 The Court of Appeal’s decision included consideration of section 23 (then section 28), which is relied upon by
the Commission in this Inquiry. Specifically, the Court stated at paragraph 32: “Two observations can be made of this section: the first is that the class of matters referred to in s-s. (1) relates to the existing service provided the public as distinct from future service. The second is that s-s. (2) also refers to present service, that is to say, the conduct of operations in relation to the public. Neither of these subsections refers to the utility's plans for the future.”
![Page 35: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/35.jpg)
- 31 -
51 The Utilities Act runs to over 140 sections. The administration of the jurisdiction conferred upon the Commission is amply delineated by express terms. There is no need to imply terms for this purpose.
There is no express jurisdiction in the Act to regulate “fair competition” or “unfair competitive
advantage”. The FEU will submit in this Inquiry that the Commission’s jurisdiction in this area is
significantly circumscribed.
(c) Summary
71. The final Inquiry scope must account for issues that challenge the Commission’s
ability to guide the management of the FEU’s business and regulate competition. The issues
that touch on these areas should be formulated in a manner that recognizes that jurisdiction in
respect of these matters is a live issue.
F. BALANCED INQUIRY SCOPE AND BALANCED FORMULATION OF THE INQUIRY ISSUES
(a) Introduction
72. In this section, the FEU address the importance of ensuring that the Inquiry
scope permits a balanced consideration of the appropriate issues, and that these issues be
formulated in a neutral manner. The FEU submit that the Inquiry must include additional issues
relating to the benefits of AES to customers of the natural gas service and AES customers, and
how FEU’s pursuit of AES serves British Columbia’s energy objectives. In Appendix “A” to this
Submission, the FEU re-formulate the AES-related issues included in the Staff Working Paper,
and list all of the additional issues raised in this Submission.
(b) Additional Issues that should be Included Within Inquiry Scope
73. The FEU observe that not one of the issues in the Staff Working Paper is directed
to the potential benefits that might flow to customers from the Companies pursuing Thermal
Energy Services. This may be symptomatic of the fact that the Inquiry is a response to
complaints initiated by parties whose interests are in preserving their market position without
having to compete with the FEU. Regardless, the FEU respectfully submits that to the extent
![Page 36: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/36.jpg)
- 32 -
that this Inquiry is going to review the AES business (the limits of that Inquiry still being a live
issue), there has to be a greater balance in the issues.
(c) Need for Reformulation of Inquiry Issues in Neutral Manner
74. The FEU submit that issues set out in the Staff Working Paper require
reformulation in order to meet the test of fairness. The FEU set out below two examples of
why this is necessary.
75. One example is the issue: “What should be the Commission’s jurisdiction to limit
FEI’s participation in the ‘new’ solutions?” The primary problem with this issue as formulated is
that it appears to presuppose that the Commission has jurisdiction to limit “FEI’s participation”
in “new solutions”. It could also benefit from greater clarity regarding what is meant by “new
solutions”. Also, jurisdictional issues of this nature affect all public utilities, not just the FEU.
76. Another example is the following: “Appropriateness of FEI providing Alternative
Energy Solutions (AES) and other new solutions as a traditional gas distribution utility.” The
concept of a “traditional gas distribution utility” does not exist under the UCA, and as a result,
the Commission cannot regulate the FEU on the basis of this concept. Nor is it appropriate to
regulate on the basis that public utilities must be dedicated to a single service; as indicated
previously, the UCA contemplates multiple classes of service within a public utility. The issues
should be phrased in reference to the legislative framework, which necessitates eliminating any
preconceived notions regarding the appropriate nature of the FEU’s business as a public utility.
77. The FEU have, in Appendix “A” to these Submissions, reformulated the issues
that it considers appropriate for the Inquiry in a neutral fashion. Any other issues that the
Commission adds should also be framed in a neutral fashion that is consistent with the UCA. In
Appendix ”B”, FEU provides a table of concordance that lists all issues from the Staff Working
Paper and indicates whether or not the FEU considers them to be appropriate. The table also
indicates the section of this Submission where FEU discusses the issue (to the extent that FEU
considers that the issue should be excluded from the Inquiry).
![Page 37: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/37.jpg)
- 33 -
PART THREE: INQUIRY PROCESS
78. The importance of these issues, not just for the Company but for all of the FEU’s
customers, makes it vitally important that the Inquiry proceed according to a fair process that
gives the FEU a full opportunity to present evidence and respond to the two Complaints from
competitors.
(a) Proposed Hearing Process (Assuming Scope is as FEU Proposes)
79. The reformulated issues list in Appendix “A” divides the issues into “procedural
issues” and “substantive issues”.54
(a) The FEU submit that the Commission Panel will benefit from having the ability to directly engage persons specifically involved in the businesses.
FEU submits that a written procedure is most efficient for
addressing the procedural issues. However, the FEU submit that an oral hearing process to
address the “substantive” issues is appropriate in the circumstances. The oral hearing should
involve not only FEU panels but also representatives of Corix and ESAC, and any others that
choose to file evidence. There are several reasons for this:
(b) The immediate impetus for this Inquiry are the two Complaints made by ESAC and Corix that go to the heart of a significant corporate initiative. As a matter of procedural fairness, the FEU must be permitted to have full latitude to inquire into the basis for those Complaints and cross-examine their representatives under oath on the materials they have put forward. Particular issues of importance to the FEU include:
• the FEU do not accept the characterization of all of the key facts in those complaints;
• there are a number of similarities with the business model of Corix that must be explored; and
• the nature of the market in which Corix, ESAC and the FEU operate.
(b) Other Process Matters
54 In the table set out in Appendix “A”, FEU has listed the procedural issues first, followed by the substantive
issues (as indicated by the headings embedded within the table).
![Page 38: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/38.jpg)
- 34 -
80. In order to ensure an efficient Inquiry, legal issues should be addressed only
through legal submissions, and not piecemeal through IRs. If there are particular issues that the
Commission wishes to have addressed in legal submissions, those can and should be articulated
for the parties and their legal counsel in advance of final legal submissions. Avoiding
redundancy through IRs directed at legal issues will help to keep this broad Inquiry more
manageable for the participants.
PART FOUR: INQUIRY TIMING
81. The FEU propose the following preliminary timetable for discussion at the
procedural conference. It is based on the scope of the proceeding as articulated in the
Submissions, and the assumption that a determination on scope will be made in the near future
so that FEU can proceed with preparing its evidence. Should either of these assumptions prove
incorrect, FEU may require more time than indicated to make its evidentiary filing.
Procedural Conference June 15, 2011 FEU Comprehensive Evidentiary Filing August 31, 2011 Commission IR No. 1 to FEU September 14, 2011 Intervenor and Complainant (ESAC/Corix) IR No. 1 to FEU
September 21, 2011
FEU Responses to Commission, Intervenor and Complainant IR No. 1
October 21, 2011
Commission IR No. 2 to FEU November 10, 2011 Intervenor and Complainant IR No. 2 to FEU November 14, 2011 FEU Responses to Commission, Intervenor and Complainant IR No. 2
November 30, 2011
Complainant (ESAC, Corix) and Intervenor Evidence
December 20, 2011
Commission IR No. 1 to Complainants (ESAC, Corix) and Intervenors
January 14, 2012
FEU IR No. 1 to Complainants (ESAC, Corix) and Intervenors
January 20, 2012
Complainant (ESAC, Corix) and Intervenor Responses to Commission and FEU IR No. 1
February 5, 2012
Commission IR No. 2 to Complainants (ESAC, Corix) and Intervenors
February 10, 2012
FEU IR No. 2 to Complainants (ESAC, Corix) and Intervenors
February 14, 2012
![Page 39: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/39.jpg)
- 35 -
Complainant (ESAC, Corix) and Intervenor Responses to Commission and FEU IR No. 2
February 28, 2012
FEU Rebuttal Evidence March 14, 2012 Oral Hearing Commences April 15, 2012
82. The FEU submit that the following considerations support the proposed timeline:
(a) As set out above, the FEU has been addressing issues relating to AES since 2008.
For this reason, the evidentiary filing in this matter will require the review and
assimilation of a substantial amount of evidence in order to prepare a proper
and responsive evidentiary filing for the Inquiry.
(b) The issues raised in this Inquiry, even on FEU’s proposed reformulation, are
broad and sweeping. FEU will require sufficient time to prepare a proper and
responsive evidentiary filing.
(c) FEU submits that, while the Complainants may wish to push this matter ahead
expeditiously, the Commission should consider the broader interests at stake,
and in particular the interests of FEU’s ratepayers.
PART FIVE: CONCLUSION
83. The FEU have been pursuing initiatives since 2008 that are directed to ensuring
that natural gas remains a part of the energy picture for many years to come, while meeting
customer demand for new low carbon energy offerings. Legislation such as the Clean Energy
Act and amendments to the Utilities Commission Act have affirmed the role of public utilities at
the forefront of the implementation of government policy on the efficient use of energy forms
and greenhouse gas emissions (“GHGs”). However, it is evident that there remains a disconnect
between FEU’s belief that it needs to continue as an integrated energy provider to meet the
needs of all of its customers and respond to government policy, and the view suggested by the
Staff Working Paper that the FEU are still “traditional natural gas” distribution utilities. The FEU
are hopeful that this Inquiry, when properly scoped and subject to an appropriate process, will
![Page 40: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/40.jpg)
- 36 -
resolve these recurring issues from past proceedings so that FEU can move forward for the
benefit of natural gas and AES customers.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated: June 9, 2011 [original signed by Matthew Ghikas] Matthew Ghikas Counsel for FortisBC Energy Utilities Dated: June 9, 2011 [original signed by David Curtis] David Curtis Counsel for FortisBC Energy Utilities
![Page 41: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/41.jpg)
- 37 -
APPENDIX “A”: REFORMULATION OF INQUIRY ISSUES
The issues listed in the left-hand column below are the remaining issues from the Staff Working
Paper, once issues that the FEU have identified as problematic have been removed. In the
right-hand column, the FEU have reformulated the issues where necessary to bring greater
clarity or balance to the issue. The issues below have been divided into procedural questions
and substantive questions because the FEU is proposing a written process for the procedural
issues and an oral process for the substantive issues.
Table A-1
Procedural Issues (written procedure)
# Staff Working Paper Formulation of Issues
FEU Reformulation of Issues
1 Whether the Inquiry should proceed as a generic proceeding or whether FEI or FortisBC Energy Utilities (FEU) should be the subject of this Inquiry. [Issue 1, sub-issue]
Whether the Inquiry should proceed as a generic proceeding or whether FEI or FortisBC Energy Utilities (FEU) should be the subject of this Inquiry.
2 Treatment of an integrated energy service provider as a public utility – what should be the appropriate regulatory format? [Issue 5, sub-issue]
What are the appropriate regulatory processes for approvals relating to regulated alternative energy services?
3 Where should the new rate structures be examined – revenue requirements, ad hoc applications, portfolios in resource plan/ action plan, certificate of Public Convenience & Necessity (CPCN)? [Issue 3, sub-issue]
Should proposed new rate structures for AES service be examined in the public utility’s revenue requirements, CPCN applications, resource plan filings, rate design applications, or in stand-alone applications?
4 Should general terms and conditions for New Initiatives be used as a framework for future AES and New Initiatives customers? [Issue 3, sub-issue]
Should proposed new AES service be subject to general terms and conditions.
5 …should subsequent filings be streamlined once the first AES and New Initiatives are approved? [Issue 4, sub-issue]
Should subsequent filings be streamlined once the first AES and New Initiatives are approved?
6 Additional issue proposed by FEU. What should the filing requirements be for AES CPCN’s and other AES filings?
![Page 42: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/42.jpg)
- 38 -
Substantive Issues (oral hearing)
# Staff Working Paper Formulation of Issues
FEU Reformulation of Issues
7 If a public utility that already provides a non-AES class of service wishes to provide an AES service…
8 Potential partners and competitors to FEI in AES and New Initiatives. Impact on FEI’s stakeholders and the role/need of public consultation with affected stakeholders. [Issue 4, sub-issue]
Should the public utility be required to engage in stakeholder consultation before being allowed to provide such service? If so, who should be consulted and with respect to what?
9 Should the products and services to be offered by a regulated public utility be defined by the Commission? What should be the Commission’s jurisdiction to limit FEI’s participation in the ‘new’ solutions? [Issue 6, sub-issue]
To what extent, if any, can the Commission prohibit a public utility from entering into the AES business?
10 The desirability of conducting new solutions under a separate regulated entity or non-regulated business entity. [Issue 3, sub-issue]
To what extent, if any, can the Commission dictate the corporate structure that a public utility must utilize to provide AES service (i.e. can the Commission require a public utility to provide such services through a separate corporate entity)? If it can dictate the corporate structure, in what circumstances should the Commission consider dictating the corporate structure?
11 Project risks, stranded assets and recovery from natural gas ratepayers; prospect and the extent of cross-subsidization; and if a project fails, who pays? [Issue 3, sub-issue] Degree of integration with the core natural gas services and how severable should the ‘new’ projects be within an entity? [Issue 3, sub-issue]
What are appropriate measures to ensure that non-AES customers do not cross-subsidize AES customers and vice versa?
12 Project risks, stranded assets and recovery from natural gas ratepayers; prospect and the extent of cross-subsidization; and if a project fails, who pays? [Issue 3, sub-issue]
How should the issue of stranding be dealt with?
![Page 43: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/43.jpg)
- 39 -
Substantive Issues (oral hearing)
# Staff Working Paper Formulation of Issues
FEU Reformulation of Issues
13 Project risks, stranded assets and recovery from natural gas ratepayers; prospect and the extent of cross-subsidization; and if a project fails, who pays? [Issue 3, sub-issue]
Are any other measures required to protect non-AES customers from any risks associated with the public utility providing a new class of AES service?
14 Are there potential conflicts of interest in FEI taking steps to transform itself into an integrated energy provider? If so, what are these? [Issue 6, sub-issue] Should there be a Code of Conduct and Transfer Pricing Policy to forbid use of market sensitive information to assist in non-core businesses? [Issue 5, sub-issue]
In circumstances where a public utility operates two or more classes of service, does market information reside with the public utility, or a particular class of service? If the latter, what steps are required to ensure that information is used appropriately?
15 Provision of district energy systems and compression and fuelling services by parties other than FEI; the importance to have FEI kick start the market? [Issue 4, sub-issue] Does the Commission have a role in its public interest decision-making to protect a competitive environment? [Issue 4, sub-issue]
What role do considerations relating to competition play with respect to the Commission’s regulation of public utilities?
16 Additional issue proposed by FEU. What factors should the Commission consider when examining the public convenience and necessity or public interest in respect of a proposed AES project?
17 Do tariff provisions, if flowing from a commission order approving an NSA, imply a regulatory policy? To what extent do issues resolved in an NSA become policy positions at the Commission? [Issue 3, sub-issue]
Do tariff provisions, if flowing from a commission order approving an NSA, imply a regulatory policy? To what extent do issues resolved in an NSA become policy positions at the Commission? In what circumstances can or should the Commission revisit past decisions upon which stakeholders may have relied?
![Page 44: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/44.jpg)
- 40 -
Substantive Issues (oral hearing)
# Staff Working Paper Formulation of Issues
FEU Reformulation of Issues
18 Are the … RP Guidelines still relevant and applicable in regulating FEI’s entry into ‘new’ business or should they be updated to reflect the current energy operational and planning environment. [Issue 6, sub-issue]
Are the Resource Planning Guidelines still relevant and applicable in regulating a public utility’s entry into ‘new’ business or should they be updated to reflect the current energy operational and planning environment?
19 Is FEI the only integrated energy provider (core natural gas distribution and ‘new’ solutions), and will it likely remain the only one in B.C.? [Issue 1]
Is FEI the only integrated energy provider (core natural gas distribution and ‘new’ solutions), and will it likely remain the only one in B.C.?
20 Should internal business cases be subject to regulatory review and reporting; [Issue 4, sub-bullet]
Should internal business cases be subject to regulatory review and reporting?
21 Additional issue proposed by FEU. What are the customer benefits of FEU Providing AES services?
22 Additional issue proposed by FEU. Do AES services achieve British Columbia’s energy objectives?
23 Additional issue proposed by FEU. How does section 60(1)(c) of the UCA apply in the circumstances where the FEU develops a thermal energy class of service?
24 Additional issue proposed by FEU. What precedents are there for a public utility offering multiple classes of service?
25 Additional issue proposed by FEU. How does section 60(1)(c) of the UCA apply to Corix’s providing multiple and different utility services (water, wastewater, gas, heat, electricity etc.) to different customers within the same utility?
26 Additional issue proposed by FEU. How should the public utilities offering AES be guided by the policy previously articulated by the Commission (as expressed in the Gateway Lakeview Estates CPCN decision, Order No. C-22-06) favouring the avoidance of multiple small regulated utilities under the same corporate parent?
![Page 45: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/45.jpg)
- 41 -
APPENDIX “B” TABLE OF CONCORDANCE
The following table sets out all of the issues from the Staff Working Paper, and indicates
whether FEU submits that they are appropriate or inappropriate for the scope of the Inquiry.
As indicated in Appendix “A”, FEU has proposed reformulations of some of the issues it
considers appropriate. In this table, the issues are as described in the Staff Working Paper. The
far right column indicates where the issue is dealt with in these submissions. For ease of
reference, all of the issues that FEU considers are inappropriate for this Inquiry are shaded in
light grey.
Table B-1
ISSUE # ISSUE FEU RESPONSE
WHERE DISCUSSED IN SUBMISSION
Issue 1 Is FEI the only integrated energy provider (core natural gas distribution and 'new' solutions), and will it likely remain the only one in B.C.?
Appropriate Appendix “A ”, Row 19
Bullet Whether the Inquiry should proceed as a generic proceeding or whether FEI or FortisBC Energy Utilities (FEU) should be the subject of this Inquiry.
Appropriate Appendix “A”, Row 1
Bullet Are members of Energy Services Association of Canada (ESAC) public utilities as defined in the Utilities Commission Act (UCA)?
Inappropriate Section 2C(a)
Issue 2 Do regulatory issues related to Alternative Energy Solutions (AES), biogas, and Natural Gas Vehicles (NGV) overlap?
Inappropriate Section 2D
Bullet Should a hearing process be limited to a single activity, e.g., AES only? Should the hearing include all 'new' energy solutions but have them reviewed by phases within a hearing? Should all 'new' energy solutions be within one hearing?
Inappropriate Section 2D
Issue 3 Appropriateness of FEI providing Alternative Energy Solutions (AES) and other 'new' solutions as a traditional gas distribution utility
n/a n/a
Bullet Where should the new rate structures be examined - revenue requirements, ad hoc applications, portfolios in resource plan/action plan, Certificate of Public
Appropriate Appendix “A”, Row 3
![Page 46: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/46.jpg)
- 42 -
ISSUE # ISSUE FEU RESPONSE
WHERE DISCUSSED IN SUBMISSION
Convenience & Necessity (CPCN)? Bullet Degree of integration with the core natural
gas services and how severable should the 'new' projects be within an entity.
Appropriate Appendix “A”, Row 11
Bullet The desirability of conducting new solutions under a separate regulated entity or non-regulated business entity.
Appropriate Appendix “A”, Row 10
Bullet Project risks, stranded assets and recovery from natural gas ratepayers; prospect and the extent of cross-subsidization; and if a project fails, who pays?
Appropriate Appendix “A”, Rows 11, 12, 13
Bullet Do tariff provisions, if flowing from a commission order approving an NSA, imply a regulatory policy?
Appropriate Appendix “A”, Row 17
(sub bullet
To what extent do issues resolved in an NSA become policy positions at the Commission?
Appropriate Appendix “A”, Row 17
(sub bullet)
Should the Commission approval be limited to the duration of the test period?
Inappropriate Section 2B
Bullet Should general terms and conditions for New Initiatives be used as a framework for future AES and New Initiatives customers?
Appropriate Appendix “A”, Row 4
Issue 4 Fair Competition n/a n/a Bullet Potential partners and competitors to FEI in
AES and New Initiatives. Impact on FEl's stakeholders and the role/need of public consultation with affected stakeholders.
Appropriate Appendix “A”, Row 8
Bullet Provision of district energy systems and compression and fuelling services by parties other than FEI; the importance to have FEI kick start the market.
Appropriate Appendix “A”, Row 15
Bullet Where approval for Energy Efficiency & Conservation (EEC) funding should be examined – revenue requirements, ad hoc applications, EEC long term plans, CPCN?
Inappropriate Section 2D
Bullet Non-discriminatory availability of HC incentive funding to non-FEI affiliated entities.
Inappropriate Section 2D
Bullet How EEC incentive funding should be determined, applied, and monitored to ensure cost effectiveness.
Inappropriate Section 2D
Bullet Accessibility of EEC incentive funding through a transparent call for tenders.
Inappropriate Section 2D
Bullet Should internal business cases be subject to Appropriate Appendix “A”, Row 20
![Page 47: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/47.jpg)
- 43 -
ISSUE # ISSUE FEU RESPONSE
WHERE DISCUSSED IN SUBMISSION
regulatory review and reporting; Sub-bullet
Should subsequent filings be streamlined once the first AES and New Initiatives are approved?
Appropriate Appendix “A”, Row 5
Bullet Does the Commission have a role in its public interest decision-making to protect a competitive environment?
Appropriate Appendix “A”, Row 15
Bullet What is the potential of certain AES, Natural Gas Vehicles (NGV) or biogas undertakings being named as a 'prescribed undertaking' for the purpose of reducing greenhouse gas emissions in British Columbia as set out in section 18 of the Clean Energy Act? In setting rates under the UCA for a public utility carrying out a prescribed undertaking, the Commission must set rates that allow the public utility to collect sufficient revenue in each fiscal year to enable it to recover its costs incurred with respect to the prescribed undertaking.
Inappropriate Section 2C(d)
Issue 5 Public Utility Services n/a n/a Bullet Can an AES and fuelling service provider
remain unregulated under the UCA? Inappropriate Section 2C(a), 2D
Bullet Treatment of an integrated energy service provider as a public utility -- what should be the appropriate regulatory format?
Appropriate Appendix “A”, Row 2
Bullet As a gas distribution utility, should FEI be allowed to move up the supply chain and keep this activity within the regulated format as proposed in its biogas business model?
Inappropriate Section 2D
Bullet Should there be a "call for energy (natural gas)" to ensure a competitively priced supply of biogas?
Inappropriate Section 2D
Bullet Should AES applications be heard before or in conjunction with an EEC funding request?
Inappropriate Section 2D
Bullet Do existing regulatory guidelines disallow FEI from trading on its market profile?
Inappropriate Section 2C(c)
Bullet Should there be a Code of Conduct and Transfer Pricing Policy to forbid use of market sensitive information to assist in non-core businesses?
Appropriate Appendix “A”, Row 14
![Page 48: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/48.jpg)
- 44 -
ISSUE # ISSUE FEU RESPONSE
WHERE DISCUSSED IN SUBMISSION
Bullet What products and services related to AES and New Initiatives are in the proper domain of a public utility?
Inappropriate Section 2C(a)
Bullet Is there appropriate separation of regulated and non-regulated businesses in the current website of the utility fortisbc.com similar to the previous separation of businesses in the websites of terasengas.com (regulated) and terasen.com (non-regulated)?
Inappropriate Section 2C(a), 2C(c)
Issue 6 Retail Markets Downstream of the Utility Meter Guidelines (RMDM) and Resource Planning (RP) Guidelines
n/a n/a
Bullet Are the RMDM … Guidelines still relevant and applicable in regulating FEl's entry into 'new' business or should they be updated to reflect the current energy operational and planning environment. Have there been deviations from the RMDM Guidelines by FEI in some of its activities?
Inappropriate Section 2C(b)
Sub-bullet
Are the RP … Guidelines still relevant and applicable in regulating FEl's entry into 'new' business or should they be updated to reflect the current energy operational and planning environment. Have there been deviations from the RMDM Guidelines by FEI in some of its activities?
Appropriate Appendix “A”, Row 18
Bullet Should the products and services to be offered by a regulated public utility be defined by the Commission? What should be the Commission's jurisdiction to limit FEl's participation in the 'new' solutions?
Appropriate Appendix “A”, Row 9
Bullet Do the RMDM Guidelines adequately address generation and delivery infrastructure for thermal energy as part and parcel of 'core utility assets'?
Inappropriate Section 2C(b)
Bullet How should the Commission deal with programs or activities that in some ways go outside the RMDM Guidelines?
Inappropriate Section 2C(b)
Bullet Should the transfer of assets and services from TES to FEI be subject to review?
Inappropriate Section 2C(a)
Bullet Are there potential conflicts of interest in FEI taking steps to transform itself into an integrated energy provider? If so, what are
Appropriate Appendix “A”, Row 14
![Page 49: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/49.jpg)
- 45 -
ISSUE # ISSUE FEU RESPONSE
WHERE DISCUSSED IN SUBMISSION
these? Bullet Are the AES, refuelling stations, and district
energy systems' core monopoly products as contemplated in RMDM?
Inappropriate Section 2C(b), 2D
Bullet Is there appropriate separation of regulated and non-regulated business and FEI? Should there be distinct separation of regulated and non-regulated businesses to avoid any potential for cross subsidization and would that ensure a level-playing field?
Inappropriate Section 2D
![Page 50: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/50.jpg)
- 46 -
FEU EXHIBIT LIST
Legislation
1. Clean Energy Act, S.B.C. 2010, c. 22 (excerpts)
2. Utilities Commission Act, R.S.B.C. 1996, c. 473
BCUC Decisions
3. 2008 TGI, TGVI, TWI Long Term Resource Plan Decision, December 15, 2008
4. 2008 TGI and TGVI Energy Efficiency and Conservation Program Application Decision, April 16, 2009
5. 2010-2011 TGI RRA Negotiated Settlement Agreement (without financial schedules), November 26, 2009
6. 2010-2011 TGI RRA Negotiated Settlement Agreement – Letters of Comment, November 26, 2009
7. 2010 TGI, TGVI, TWI Long Term Resource Plan Decision, February 1, 2011
8. Central Heat Distribution Limited Decision, October 22, 1975 (excerpt)
9. Corix Multi-Utility Services Inc. UniverCity CPCN Decision, May 6, 2011
10. Dockside Green CPCN Decision, April 17, 2008
11. Dockside Green CPCN Reconsideration Decision, June 30, 2008
12. TES Gateway Lakeview Estates CPCN Decision, December 14, 2006
13. TGI Biomethane Application Decision, December 14, 2010
Court Cases
14. ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4
15. BC Hydro v. British Columbia (Utilities Commission) (1996), 20 B.C.L.R. (3d) 106 (C.A.)
BCUC Guidelines and Other Documents
16. Negotiated Settlement Process Guidelines
17. Retail Markets Downstream of the Utility Meter Guidelines
18. FEU General Terms and Conditions – 12A
19. Memorandum of Boughton Peterson Yang Anderson dated March 10, 1997
![Page 51: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/51.jpg)
FortisBC Energy Utilities EXHIBIT BOOK
![Page 52: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/52.jpg)
An Inquiry into FortisBC Energy Inc. regarding the Offering of Products and Services in
Alternative Energy Solutions and Other New Initiatives
Written Submission of the FortisBC Energy Utilities
EXHIBIT BOOK
Legislation
1. Clean Energy Act, S.B.C. 2010, c. 22 (excerpts)
2. Utilities Commission Act, R.S.B.C. 1996, c. 473
BCUC Decisions
3. 2008 TGI, TGVI, TWI Long Term Resource Plan Decision, December 15, 2008
4. 2008 TGI and TGVI Energy Efficiency and Conservation Program Application Decision, April 16, 2009
5. 2010-2011 TGI RRA Negotiated Settlement Agreement (without financial schedules), November 26, 2009
6. 2010-2011 TGI RRA Negotiated Settlement Agreement – Letters of Comment, November 26, 2009
7. 2010 TGI, TGVI, TWI Long Term Resource Plan Decision, February 1, 2011
8. Central Heat Distribution Limited Decision, October 22, 1975 (excerpt)
9. Corix Multi-Utility Services Inc. UniverCity CPCN Decision, May 6, 2011
10. Dockside Green CPCN Decision, April 17, 2008
11. Dockside Green CPCN Reconsideration Decision, June 30, 2008
12. TES Gateway Lakeview Estates CPCN Decision, December 14, 2006
13. TGI Biomethane Application Decision, December 14, 2010
Court Cases
14. ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4
15. BC Hydro v. British Columbia (Utilities Commission) (1996), 20 B.C.L.R. (3d) 106 (C.A.)
BCUC Guidelines and Other Documents
16. Negotiated Settlement Process Guidelines
17. Retail Markets Downstream of the Utility Meter Guidelines
18. FEU General Terms and Conditions – 12A
19. Memorandum of Boughton Peterson Yang Anderson dated March 10, 1997
![Page 53: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/53.jpg)
CLEAN ENERGY ACT
[SBC 2010] CHAPTER 22
…
1 (1) In this Act:
…
"British Columbia's energy objectives" means the objectives
set out in section 2;
…
British Columbia's energy objectives
2 The following comprise British Columbia's energy objectives:
(a) to achieve electricity self-sufficiency;
(b) to take demand-side measures and to conserve energy,
including the objective of the authority reducing its
expected increase in demand for electricity by the year
2020 by at least 66%;
(c) to generate at least 93% of the electricity in British
Columbia from clean or renewable resources and to build
the infrastructure necessary to transmit that electricity;
(d) to use and foster the development in British Columbia of
innovative technologies that support energy conservation
and efficiency and the use of clean or renewable resources;
(e) to ensure the authority's ratepayers receive the benefits
of the heritage assets and to ensure the benefits of the
heritage contract under the BC Hydro Public Power Legacy
and Heritage Contract Act continue to accrue to the
authority's ratepayers;
(f) to ensure the authority's rates remain among the most
competitive of rates charged by public utilities in North
America;
![Page 54: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/54.jpg)
- 2 -
(g) to reduce BC greenhouse gas emissions
(i) by 2012 and for each subsequent calendar year
to at least 6% less than the level of those emissions
in 2007,
(ii) by 2016 and for each subsequent calendar year
to at least 18% less than the level of those emissions
in 2007,
(iii) by 2020 and for each subsequent calendar year
to at least 33% less than the level of those emissions
in 2007,
(iv) by 2050 and for each subsequent calendar year
to at least 80% less than the level of those emissions
in 2007, and
(v) by such other amounts as determined under the
Greenhouse Gas Reduction Targets Act;
(h) to encourage the switching from one kind of energy
source or use to another that decreases greenhouse gas
emissions in British Columbia;
(i) to encourage communities to reduce greenhouse gas
emissions and use energy efficiently;
(j) to reduce waste by encouraging the use of waste heat,
biogas and biomass;
(k) to encourage economic development and the creation
and retention of jobs;
(l) to foster the development of first nation and rural
communities through the use and development of clean or
renewable resources;
(m) to maximize the value, including the incremental value
of the resources being clean or renewable resources, of
British Columbia's generation and transmission assets for
the benefit of British Columbia;
![Page 55: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/55.jpg)
- 3 -
(n) to be a net exporter of electricity from clean or
renewable resources with the intention of benefiting all
British Columbians and reducing greenhouse gas emissions
in regions in which British Columbia trades electricity while
protecting the interests of persons who receive or may
receive service in British Columbia;
(o) to achieve British Columbia's energy objectives without
the use of nuclear power;
(p) to ensure the commission, under the Utilities
Commission Act, continues to regulate the authority with
respect to domestic rates but not with respect to
expenditures for export, except as provided by this Act.
…
Greenhouse gas reduction
18 (1) In this section, "prescribed undertaking" means a project,
program, contract or expenditure that is in a class of projects,
programs, contracts or expenditures prescribed for the purpose of
reducing greenhouse gas emissions in British Columbia.
(2) In setting rates under the Utilities Commission Act for a public
utility carrying out a prescribed undertaking, the commission must set
rates that allow the public utility to collect sufficient revenue in each
fiscal year to enable it to recover its costs incurred with respect to the
prescribed undertaking.
(3) The commission must not exercise a power under the Utilities
Commission Act in a way that would directly or indirectly prevent a
public utility referred to in subsection (2) from carrying out a
prescribed undertaking.
(4) A public utility referred to in subsection (2) must submit to the
minister, on the minister's request, a report respecting the prescribed
undertaking.
![Page 56: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/56.jpg)
- 4 -
(5) A report to be submitted under subsection (4) must include the
information the minister specifies and be submitted in the form and by
the time the minister specifies.
![Page 57: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/57.jpg)
UTILITIES COMMISSION ACT [RSBC 1996] CHAPTER 473
Copyright (c) Queen's Printer, Victoria, British Columbia, Canada IMPORTANT INFORMATION
Contents 1 Definitions
Part 1 — Utilities Commission
2 Commission continued
3 Commission subject to direction
4 Sittings and divisions
5 Commission's duties
6 Repealed
7 Employees
8 Technical consultants
9 Pensions
10 Secretary's duties
11 Conflict of interest
12 Obligation to keep information confidential
13 Annual report
Part 2
14–20 Repealed
Part 3 — Regulation of Public Utilities
21 Application of this Part
22 Exemptions
23 General supervision of public utilities
24 Commission must make examinations and inquiries
25 Commission may order improved service
26 Commission may set standards
27 Joint use of facilities
28 Utility must provide service if supply line near
29 Commission may order utility to provide service if supply line distant
30 Commission may order extension of existing service
31 Regulation of agreements
32 Use of municipal thoroughfares
33 Dispensing with municipal consent
Page 1 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 58: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/58.jpg)
34 Order to extend service in municipality
35 Other orders to extend service
36 Use of municipal structures
37 Supervisors and inspectors
38 Public utility must provide service
39 No discrimination or delay in service
40 Exemption for part of municipality
41 No discontinuance without permission
42 Duty to obey orders
43 Duty to provide information
44 Duty to keep records
44.1 Long-term resource and conservation planning
44.2 Expenditure schedule
45 Certificate of public convenience and necessity
46 Procedure on application
47 Order to cease work
48 Cancellation or suspension of franchises and permits
49 Accounts and reports
50 Commission approval of issue of securities
51 Restraint on capitalization
52 Restraint on disposition
53 Consolidation, amalgamation and merger
54 Reviewable interests
55 Appraisal of utility property
56 Depreciation accounts and funds
57 Reserve funds
58 Commission may order amendment of schedules
58.1 Rate rebalancing
59 Discrimination in rates
60 Setting of rates
61 Rate schedules to be filed with commission
62 Schedules must be available to public
63 Schedules must be observed
64 Orders respecting contracts
Part 3.1
64.01-64.04 Repealed
Part 4 — Carriers, Purchasers and Processors
64.1 Definition
65 Common carrier
66 Common purchaser
67 Common processor
Part 5 — Electricity Transmission
68 Definitions
Page 2 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 59: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/59.jpg)
69 Repealed
70 Use of electricity transmission facilities
71 Energy supply contracts
71.1 Gas marketers
Part 6 — Commission Jurisdiction
72 Jurisdiction of commission to deal with applications
73 Mandatory and restraining orders
74 Inspections and depositions
75 Commission not bound by precedent
76 Jurisdiction as to liquidators and receivers
77 Power to extend time
78 Evidence
79 Findings of fact conclusive
80 Commission not bound by judicial acts
81 Pending litigation
82 Power to inquire without application
83 Action on complaints
84 General powers not limited
85 Hearings to be held in certain cases
86 Public hearing
86.1 Repealed
86.2 When oral hearings not required
87 Recitals not required in orders
88 Application of orders
88.1 Withdrawal of application
89 Partial relief
90 Commencement of orders
91 Orders without notice
92 Directions
93-94 Repealed
95 Lien on land
96 Substitute to carry out orders
97 Entry, seizure and management
98 Defaulting utility may be dissolved
Part 7 — Decisions and Appeals
99 Reconsideration by commission
100 Requirement for hearing
101 Appeal to Court of Appeal
102 No automatic stay of proceedings while matter appealed
103 Costs of appeal
104 Case stated by commission
105 Jurisdiction of commission exclusive
Part 8 — Offences and Penalties
Page 3 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 60: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/60.jpg)
Definitions
1 In this Act:
"appraisal" means appraisal by the commission;
"authority" means the British Columbia Hydro and Power Authority;
"British Columbia's energy objectives" has the same meaning as in
section 1 (1) of the Clean Energy Act;
"commission" means the British Columbia Utilities Commission
continued under this Act;
"compensation" means a rate, remuneration, gain or reward of any
kind paid, payable, promised, demanded, received or expected, directly
or indirectly, and includes a promise or undertaking by a public utility to
provide service as consideration for, or as part of, a proposal or contract
to dispose of land or any interest in it;
"costs" includes fees, counsel fees and expenses;
106 Offences
107 Restraining orders
108 Revocation of certificates
109 Remedies not mutually exclusive
Part 9 — General
110 Powers of commission in relation to other Acts
111 Substantial compliance
112 Vicarious liability
113 Public utilities may apply
114 Municipalities may apply
115 Certified documents as evidence
116 Class representation
117 Costs of commission
118 Participant costs
119 Tariff of fees
120 No waiver of rights
121 Relationship with Local Government Act
122 Repealed
123 Service of notice
124 Reasons to be given
125 Regulations
125.1 Minister's regulations
125.2 Adoption of reliability standards, rules or codes
126 Intent of Legislature
Page 4 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 61: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/61.jpg)
"demand-side measure" has the same meaning as in section 1 (1) of
the Clean Energy Act;
"distribution equipment" means posts, pipes, wires, transmission
mains, distribution mains and other apparatus of a public utility used to
supply service to the utility customers;
"expenses" includes expenses of the commission;
(a) to encourage public utilities to reduce greenhouse gas
emissions;
(b) to encourage public utilities to take demand-side measures;
(c) to encourage public utilities to produce, generate and acquire
electricity from clean or renewable sources;
(d) to encourage public utilities to develop adequate energy
transmission infrastructure and capacity in the time required to
serve persons who receive or may receive service from the public
utility;
(e) to encourage public utilities to use innovative energy
technologies
(i) that facilitate electricity self-sufficiency or the fulfillment
of their long-term transmission requirements, or
(ii) that support energy conservation or efficiency or the use
of clean or renewable sources of energy;
(f) to encourage public utilities to take prescribed actions in
support of any other goals prescribed by regulation;
"petroleum industry" includes the carrying on within British Columbia
of any of the following industries or businesses:
(a) the distillation, refining or blending of petroleum;
(b) the manufacture, refining, preparation or blending of products
obtained from petroleum;
(c) the storage of petroleum or petroleum products;
(d) the wholesale or retail distribution or sale of petroleum
products;
(e) the retail distribution of liquefied or compressed natural gas;
"petroleum products" includes gasoline, naphtha, benzene, kerosene,
lubricating oils, stove oil, fuel oil, furnace oil, paraffin, aviation fuels,
Page 5 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 62: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/62.jpg)
butane, propane and other liquefied petroleum gas and all derivatives of
petroleum and all products obtained from petroleum, whether or not
blended with or added to other things;
"public hearing" means a hearing of which public notice is given, which
is open to the public, and at which any person whom the commission
determines to have an interest in the matter may be heard;
"public utility" means a person, or the person's lessee, trustee,
receiver or liquidator, who owns or operates in British Columbia,
equipment or facilities for
(a) the production, generation, storage, transmission, sale,
delivery or provision of electricity, natural gas, steam or any other
agent for the production of light, heat, cold or power to or for the
public or a corporation for compensation, or
(b) the conveyance or transmission of information, messages or
communications by guided or unguided electromagnetic waves,
including systems of cable, microwave, optical fibre or
radiocommunications if that service is offered to the public for
compensation,
but does not include
(c) a municipality or regional district in respect of services provided
by the municipality or regional district within its own boundaries,
(d) a person not otherwise a public utility who provides the service
or commodity only to the person or the person's employees or
tenants, if the service or commodity is not resold to or used by
others,
(e) a person not otherwise a public utility who is engaged in the
petroleum industry or in the wellhead production of oil, natural gas
or other natural petroleum substances,
(f) a person not otherwise a public utility who is engaged in the
production of a geothermal resource, as defined in the Geothermal Resources Act, or
(g) a person, other than the authority, who enters into or is
created by, under or in furtherance of an agreement designated
under section 12 (9) of the Hydro and Power Authority Act, in
respect of anything done, owned or operated under or in relation to
that agreement;
Page 6 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 63: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/63.jpg)
"rate" includes
(a) a general, individual or joint rate, fare, toll, charge, rental or
other compensation of a public utility,
(b) a rule, practice, measurement, classification or contract of a
public utility or corporation relating to a rate, and
(c) a schedule or tariff respecting a rate;
"service" includes
(a) the use and accommodation provided by a public utility,
(b) a product or commodity provided by a public utility, and
(c) the plant, equipment, apparatus, appliances, property and
facilities employed by or in connection with a public utility in
providing service or a product or commodity for the purposes in
which the public utility is engaged and for the use and
accommodation of the public;
"tenant" does not include a lessee for a term of more than 5 years;
"value" or "appraised value" means the value determined by the
commission.
Part 1 — Utilities Commission
Commission continued
2 (1) The British Columbia Utilities Commission is continued consisting of
individuals appointed as follows by the Lieutenant Governor in Council after a
merit based process:
(a) one commissioner designated as the chair;
(b) other commissioners appointed after consultation with the
chair.
(2) The Lieutenant Governor in Council, after consultation with the chair,
may designate a commissioner appointed under subsection (1) (b) as a
deputy chair.
(3) The chair may appoint a deputy chair or commissioner to act as chair for
any purpose specified in the appointment.
(4) Sections 1 to 13, 15, 18 to 21, 28 to 30, 32, 34 (3) and (4), 35 to 42,
44, 46.3, 48, 49, 54, 56, 60 (a) and (b) and 61 of the Administrative
Page 7 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 64: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/64.jpg)
Tribunals Act apply to the commission, and for that purpose a reference to a
deputy chair in this Act is a reference to a vice chair under that Act.
(5) The chair is the chief executive officer of the commission and has
supervision over and direction of the work and the staff of the commission.
Commission subject to direction
3 (1) Subject to subsection (3), the Lieutenant Governor in Council, by
regulation, may issue a direction to the commission with respect to the
exercise of the powers and the performance of the duties of the commission,
including, without limitation, a direction requiring the commission to exercise
a power or perform a duty, or to refrain from doing either, as specified in the
regulation.
(2) The commission must comply with a direction issued under subsection
(1), despite
(a) any other provision of
(i) this Act, except subsection (3) of this section, or
(ii) the regulations,
(a.1) any provision of the Clean Energy Act or the regulations
under that Act, or
(b) any previous decision of the commission.
(3) The Lieutenant Governor in Council may not under subsection (1)
specifically and expressly
(a) declare an order or decision of the commission to be of no force
or effect, or
(b) require the commission to rescind an order or a decision.
Sittings and divisions
4 (1) The commission
(a) must sit at the times and conduct its proceedings in a manner it
considers convenient for the proper discharge and speedy dispatch
of its duties under this Act
(b) [Repealed 2004-45-164.]
(2) The chair may organize the commission into divisions.
(3) The commissioners must sit
(a) as the commission, or
Page 8 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 65: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/65.jpg)
(b) as a division of the commission.
(4) If commissioners sit as a division
(a) 2 or more divisions may sit at the same time,
(b) the division has all the jurisdiction of and may exercise and
perform the powers and duties of the commission, and
(c) a decision or action of the division is a decision or action of the
commission.
(5) At a sitting of the commission or of a division of the commission, one
commissioner is a quorum.
(6) The chair may designate a commissioner to serve as chair at any sitting
of the commission or a division of it.
(7) If a proceeding is being held by the commission or by a division and a
sitting commissioner is absent or unable to attend,
(a) that commissioner is thereafter disqualified from continuing to
sit on the proceeding, and
(b) despite subsection (5), the commissioner or commissioners
remaining present and sitting must exercise and perform all the
jurisdiction, powers and duties of the commission.
(8) and (9) [Repealed 2003-46-2.]
(10) In the case of a tie vote at a sitting of the commission or a division of
the commission, the decision of the chair of the commission or the division
governs.
(11) If a division is comprised of one member and that member is unable for
any reason to complete the member's duties, the chair of the commission,
with the consent of all parties to the application, may organize a new division
to continue to hear and determine the matter on terms agreed to by the
parties, and the vacancy does not invalidate the proceeding.
Commission's duties
5 (0.1) [Repealed by 2010-22-61.]
(1) On the request of the Lieutenant Governor in Council, it is the duty of the
commission to advise the Lieutenant Governor in Council on any matter,
whether or not it is a matter in respect of which the commission otherwise
has jurisdiction.
(2) If, under subsection (1), the Lieutenant Governor in Council refers a
Page 9 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 66: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/66.jpg)
matter to the commission, the Lieutenant Governor in Council may specify
terms of reference requiring and empowering the commission to inquire into
the matter.
(3) The commission may carry out a function or perform a duty delegated to
it under an enactment of British Columbia or Canada.
(4)-(9) [Repealed 2010-22-61.]
Repealed
6 [Repealed 2004-45-165.]
Employees
7 Despite the Public Service Act, the commission may employ a secretary and
other officers and other employees it considers necessary and may
determine their duties, conditions of employment and remuneration.
Technical consultants
8 The commission may appoint or engage persons having special or technical
knowledge necessary to assist the commission in carrying out its functions.
Pensions
9 The Lieutenant Governor in Council may, by order, direct that the Public
Service Pension Plan, continued under the Public Sector Pension Plans Act, applies to commissioners, officers and other employees of the commission,
but the commission may, alone or in cooperation with other corporations,
departments, commissions or other agencies of the Crown, establish,
support or participate in any one or more of
(a) a pension or superannuation plan, or
(b) a group insurance plan
for the benefit of commissioners, officers and other employees of the
commission and their dependants.
Secretary's duties
10 (1) The secretary must
(a) keep a record of the proceedings before the commission,
(b) ensure that every rule, regulation and order of the commission
is filed in the records of the commission,
Page 10 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 67: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/67.jpg)
(c) have custody of all rules, regulations and orders made by the
commission and all other records and documents of, or filed with,
the commission, and
(d) carry out the instructions and directions of the commission
under this Act respecting the secretary's duties or office.
(2) On the application of a person who pays a prescribed fee, the secretary
must deliver to the person a certified copy of any rule, regulation or order of
the commission.
(3) In the absence of the secretary, the duties of the secretary under this
Act may be performed by another person appointed by the commission.
(4) A rule, regulation and order of the commission must be signed by the
chair, a deputy chair or an acting chair, and the original or a copy of it must
be delivered to the secretary for filing.
Conflict of interest
11 (1) A commissioner or employee of the commission must not, directly or
indirectly,
(a) hold, acquire or have a beneficial interest in a share, stock,
bond, debenture or other security of a corporation or other person
subject to regulation under Part 3 of this Act,
(b) have a significant beneficial interest in a device, appliance,
machine, article, patent or patented process, or a part of it, that is
required or used by a corporation or other person referred to in
paragraph (a) for the purpose of its equipment or service, or
(c) have a significant beneficial interest in a contract for the
construction of works or the provision of a service for or by a
corporation or other person referred to in paragraph (a).
(2) A commissioner or employee of the commission, in whom a beneficial
interest referred to in subsection (1) is or becomes vested, must divest
himself or herself of the beneficial interest within 3 months after
appointment to the commission or acquisition of the property, as the case
may be.
(3) The use or purchase for personal or domestic purposes, of gas, heat,
light, power, electricity or petroleum products or service from a corporation
or other person subject to regulation under this Act is not a contravention of
this section, and does not disqualify a commissioner or employee from acting
in any matter affecting that corporation or other person.
Page 11 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 68: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/68.jpg)
Obligation to keep information confidential
12 (1) Every commissioner and every officer and employee of the commission
must keep secret all information coming to the person's knowledge during
the course of the administration of this Act, except insofar as disclosure is
necessary for the administration of this Act or insofar as the commission
authorizes the person to release the information.
(2) A commissioner, officer or employee of the commission must not be
required to testify or produce evidence in any proceeding, other than a
criminal proceeding, about records or information obtained in the discharge
of duties under this Act.
(3) Despite subsection (2), the Supreme Court may require the commission
to produce the record of a proceeding that is the subject of an application for
judicial review under the Judicial Review Procedure Act.
Annual report
13 (1) In each year, the commission must make a report to the Lieutenant
Governor in Council for the preceding fiscal year, setting out briefly
(a) all applications and complaints to the commission under this
Act and summaries of the commission's findings on them,
(b) other matters that the commission considers to be of public
interest in connection with the discharge of its duties under this
Act, and
(c) other information the Lieutenant Governor in Council directs.
(2) The report must be laid before the Legislative Assembly as soon as
possible after it is submitted to the Lieutenant Governor in Council.
Part 2
Repealed
14–20 [Repealed 2003-46-5.]
Part 3 — Regulation of Public Utilities
Application of this Part
21 (1) This Part applies only to a public utility that is subject to the legislative
Page 12 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 69: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/69.jpg)
authority of the Province.
(2) The provision by a public utility of a class of service in respect of which
the public utility is not subject to the legislative authority of the Province
does not make this Part inapplicable to that public utility in respect of any
other class of service.
Exemptions
22 (1) In this section:
"eligible person" means a person, or a class of persons, that
(a) generates, produces, transmits, distributes or sells electricity,
(b) for the purpose of heating or cooling any building, structure or
equipment or for any industrial purpose, heats, cools or
refrigerates water, air or any heating medium or coolant, using for
that purpose equipment powered by a fuel, a geothermal resource
or solar energy, or
(c) enters into an energy supply contract, within the meaning of
section 68, for the provision of electricity;
"minister" means the minister responsible for the administration of the
Hydro and Power Authority Act.
(2) The minister, by regulation, may
(a) exempt from any or all of section 71 and the provisions of this
Part
(i) an eligible person, or
(ii) an eligible person in respect of any equipment, facility,
plant, project, activity, contract, service or system of the
eligible person, and
(b) in respect of an exemption made under paragraph (a), impose
any terms and conditions the minister considers to be in the public
interest.
(3) The minister, before making a regulation under subsection (2), may refer
the matter to the commission for a review.
General supervision of public utilities
23 (1) The commission has general supervision of all public utilities and may
make orders about
Page 13 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 70: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/70.jpg)
(a) equipment,
(b) appliances,
(c) safety devices,
(d) extension of works or systems,
(e) filing of rate schedules,
(f) reporting, and
(g) other matters it considers necessary or advisable for
(i) the safety, convenience or service of the public, or
(ii) the proper carrying out of this Act or of a contract,
charter or franchise involving use of public property or rights.
(2) Subject to this Act, the commission may make regulations requiring a
public utility to conduct its operations in a way that does not unnecessarily
interfere with, or cause unnecessary damage or inconvenience to, the public.
Commission must make examinations and inquiries
24 In its supervision of public utilities, the commission must make examinations
and conduct inquiries necessary to keep itself informed about
(a) the conduct of public utility business,
(b) compliance by public utilities with this Act, regulations or any
other law, and
(c) any other matter in the commission's jurisdiction.
Commission may order improved service
25 If the commission, after a hearing held on its own motion or on complaint,
finds that the service of a public utility is unreasonable, unsafe, inadequate
or unreasonably discriminatory, the commission must
(a) determine what is reasonable, safe, adequate and fair service,
and
(b) order the utility to provide it.
Commission may set standards
26 After a hearing held on the commission's own motion or on complaint, the
commission may do one or more of the following:
(a) determine and set just and reasonable standards,
Page 14 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 71: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/71.jpg)
classifications, rules, practices or service to be used by a public
utility;
(b) determine and set adequate and reasonable standards for
measuring quantity, quality, pressure, initial voltage or other
conditions of supplying service;
(c) prescribe reasonable regulations for examining, testing or
measuring a service;
(d) establish or approve reasonable standards for accuracy of
meters and other measurement appliances;
(e) provide for the examination and testing of appliances used to
measure a service of a utility.
Joint use of facilities
27 (1) If the commission, after a hearing, finds that
(a) public convenience and necessity require the use by a public
utility of conduits, subways, poles, wires or other equipment
belonging to another public utility, and
(b) the use will not prevent the owner or other users from
performing their duties or result in any substantial detriment to
their service,
the commission may, if the utilities fail to agree on the use, conditions or
compensation, make an order it considers reasonable, directing that the use
or joint use of the conduits, subways, poles, wires or other equipment be
allowed and prescribing conditions of and compensation for the use.
(2) If the commission, after a hearing, finds that the provision of adequate
service by one public utility or the safety of the persons operating or using
that service requires that wires or cables carrying electricity and run, placed,
erected, maintained or used by another public utility be placed, constructed
or equipped with safety devices, the commission may make an order it
considers reasonable about the placing, construction or equipment.
(3) By the same or a later order, the commission may
(a) direct that the cost of the placing, construction or equipment be
at the expense of the public utility whose wire, cable or apparatus
was most recently placed, or
(b) in the discretion of the commission, apportion the cost between
the utilities.
Page 15 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 72: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/72.jpg)
Utility must provide service if supply line near
28 (1) On being requested by the owner or occupier of the premises to do so, a
public utility must supply its service to premises that are located within 200
metres of its supply line or any lesser distance that the commission
prescribes suitable for that purpose.
(2) Before supplying the service under subsection (1) or making a
connection for the purpose, or as a condition of continuing to supply the
service, the public utility may require the owner or occupier to give
reasonable security for repayment of the costs of making the connection as
set out in the filed schedule of rates.
(2.1) If required to do so by regulation, the commission, in accordance with
the prescribed requirements, must set a rate for the authority respecting the
service provided under subsection (1).
(2.2) A requirement prescribed for the purposes of subsection (2.1) applies
despite
(a) any other provision of this Act or any regulation under this Act,
except for a regulation under section 3, or
(b) any previous decision of the commission.
(3) After a hearing and for proper cause, the commission may relieve a
public utility from the obligation to supply service under this Act on terms
the commission considers proper and in the public interest.
Commission may order utility to provide service if supply line distant
29 On the application of a person whose premises are located more than
200 metres from a supply line suitable for that purpose, the commission may
order a public utility that controls or operates the line
(a) to supply, within the time the commission directs, the service
required by that person, and
(b) to make extensions and install necessary equipment and
apparatus on terms the commission directs, which terms may
include payment of all or part of the cost by the applicant.
Commission may order extension of existing service
30 If the commission, after a hearing, determines that
(a) an extension of the existing services of a public utility, in a
general area that the public utility may properly be considered
Page 16 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 73: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/73.jpg)
responsible for developing, is feasible and required in the public
interest, and
(b) the construction and maintenance of the extension will not
necessitate a substantial increase in rates chargeable, or a
decrease in services provided, by the utility elsewhere,
the commission may order the utility to make the extension on terms the
commission directs, which may include payment of all or part of the cost by
the persons affected.
Regulation of agreements
31 The commission may make rules governing conditions to be contained in
agreements entered into by public utilities for their regulated services or for
a class of regulated service.
Use of municipal thoroughfares
32 (1) This section applies if a public utility
(a) has the right to enter a municipality to place its distribution
equipment on, along, across, over or under a public street, lane,
square, park, public place, bridge, viaduct, subway or watercourse,
and
(b) cannot come to an agreement with the municipality on the use
of the street or other place or on the terms of the use.
(2) On application and after any inquiry it considers advisable, the
commission may, by order, allow the use of the street or other place by the
public utility for that purpose and specify the manner and terms of use.
Dispensing with municipal consent
33 (1) This section applies if a public utility
(a) cannot agree with a municipality respecting placing its
distribution equipment on, along, across, over or under a public
street, lane, square, park, public place, bridge, viaduct, subway or
watercourse in a municipality, and
(b) the public utility is otherwise unable, without expenditures that
the commission considers unreasonable, to extend its system, line
or apparatus from a place where it lawfully does business to
another place where it is authorized to do business.
(2) On application and after a hearing, for the purpose of that extension only
Page 17 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 74: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/74.jpg)
and without unduly preventing the use of the street or other place by other
persons, the commission may, by order,
(a) allow the use of the street or other place by the public utility,
despite any law or contract granting to another person exclusive
rights, and
(b) specify the manner and terms of the use.
Order to extend service in municipality
34 (1) On the complaint of a municipality that a public utility doing business in
the municipality fails to extend its service to a part of the municipality, and
after any hearing the commission considers advisable, the commission may
order the public utility to extend its service in a way that the commission
considers reasonable and proper.
(2) An order under subsection (1) may
(a) in the commission's discretion, impose terms for the extension,
including the expenditure to be incurred for all necessary works,
and
(b) apportion the cost between the public utility, the municipality
and consumers receiving service from the extension.
Other orders to extend service
35 If the commission, after a hearing, concludes that in its opinion an extension
by a public utility of its existing service would provide sufficient business to
justify the construction and maintenance of the extension, and the financial
condition of the public utility reasonably warrants the capital expenditure
required, the commission may order the utility to extend its service to the
extent the commission considers reasonable and proper.
Use of municipal structures
36 Subject to any agreement between a public utility and a municipality and to
the franchise or rights of the public utility, and after any hearing the
commission considers advisable, the commission may, by order, specify the
terms on which the public utility may use for any purpose of its service
(a) a highway in the municipality, or
(b) a public bridge, viaduct or subway constructed or to be
constructed by the municipality alone or jointly with another
municipality, corporation or government.
Page 18 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 75: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/75.jpg)
Supervisors and inspectors
37 (1) If the commission considers that a supervisor or inspector should be
appointed to supervise or inspect, continuously or otherwise, the system,
works, plant, equipment or service of a public utility with a view to
establishing and carrying out measures for
(a) the safety of the public and of the users of the utility's service,
or
(b) adequacy of service,
the commission may appoint a supervisor or inspector for that utility and
may specify the person's duties.
(2) The commission may
(a) set the salary and expenses of a supervisor or inspector
appointed under subsection (1), and
(b) order the amount set
(i) to be borne by the municipality in which the operations of
the public utility are carried on or its service is provided, or
(ii) to be borne or apportioned in a way the commission
considers equitable.
Public utility must provide service
38 A public utility must
(a) provide, and
(b) maintain its property and equipment in a condition to enable it
to provide,
a service to the public that the commission considers is in all respects
adequate, safe, efficient, just and reasonable.
No discrimination or delay in service
39 On reasonable notice, a public utility must provide suitable service without
undue discrimination or undue delay to all persons who
(a) apply for service,
(b) are reasonably entitled to it, and
(c) pay or agree to pay the rates established for that service under
this Act.
Page 19 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 76: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/76.jpg)
Exemption for part of municipality
40 (1) On application, the commission may, by order, exempt a municipality
from section 39 except in a defined area.
(2) On application by any person and after notice to the municipality, the
commission may enlarge or reduce an area defined under subsection (1).
No discontinuance without permission
41 A public utility that has been granted a certificate of public convenience and
necessity or a franchise, or that has been deemed to have been granted a
certificate of public convenience and necessity, and has begun any operation
for which the certificate or franchise is necessary, or in respect of which the
certificate is deemed to have been granted, must not cease the operation or
a part of it without first obtaining the permission of the commission.
Duty to obey orders
42 A public utility must obey the lawful orders of the commission made under
this Act for its business or service, and must do all things necessary to
secure observance of those orders by its officers, agents and employees.
Duty to provide information
43 (1) A public utility must, for the purposes of this Act,
(a) answer specifically all questions of the commission, and
(b) provide to the commission
(i) the information the commission requires, and
(ii) a report, submitted annually and in the manner the
commission requires, regarding the demand-side measures
taken by the public utility during the period addressed by the
report, and the effectiveness of those measures.
(1.1) [Repealed 2010-22-64.]
(2) A public utility that receives from the commission any form of return
must fully and correctly answer each question in the return and deliver it to
the commission.
(3) On request by the commission, a public utility must deliver to the
commission
(a) all profiles, contracts, reports of engineers, accounts and
records in its possession or control relating in any way to its
Page 20 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 77: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/77.jpg)
property or service or affecting its business, or verified copies of
them, and
(b) complete inventories of the utility's property in the form the
commission directs.
(4) On request by the commission, a public utility must file with the
commission a statement in writing setting out the name, title of office, post
office address and the authority, powers and duties of
(a) every member of the board of directors and the executive
committee,
(b) every trustee, superintendent, chief or head of construction or
operation, or of any department, branch, division or line of
construction or operation, and
(c) other officers of the utility.
(5) The statement required under subsection (4) must be filed in a form that
discloses the source and origin of each administrative act, rule, decision,
order or other action of the utility.
Duty to keep records
44 (1) A public utility must have in British Columbia an office in which it must
keep all accounts and records required by the commission to be kept in
British Columbia.
(2) A public utility must not remove or permit to be removed from British
Columbia an account or record required to be kept under subsection (1),
except on conditions specified by the commission.
Long-term resource and conservation planning
44.1 (1) [Repealed 2010-22-65.]
(2) Subject to subsection (4), a public utility must file with the commission,
in the form and at the times the commission requires, a long-term resource
plan including all of the following:
(a) an estimate of the demand for energy the public utility would
expect to serve if the public utility does not take new demand-side
measures during the period addressed by the plan;
(b) a plan of how the public utility intends to reduce the demand
referred to in paragraph (a) by taking cost-effective demand-side
measures;
Page 21 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 78: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/78.jpg)
(c) an estimate of the demand for energy that the public utility
expects to serve after it has taken cost-effective demand-side
measures;
(d) a description of the facilities that the public utility intends to
construct or extend in order to serve the estimated demand
referred to in paragraph (c);
(e) information regarding the energy purchases from other persons
that the public utility intends to make in order to serve the
estimated demand referred to in paragraph (c);
(f) an explanation of why the demand for energy to be served by
the facilities referred to in paragraph (d) and the purchases
referred to in paragraph (e) are not planned to be replaced by
demand-side measures;
(g) any other information required by the commission.
(3) The commission may exempt a public utility from the requirement to
include in a long-term resource plan filed under subsection (2) any of the
information referred to in paragraphs (a) to (f) of that subsection if the
commission is satisfied that the information is not applicable with respect to
the nature of the service provided by the public utility
(4) [Repealed 2010-22-65.]
(5) The commission may establish a process to review long-term resource
plans filed under subsection (2).
(6) After reviewing a long-term resource plan filed under subsection (2), the
commission must
(a) accept the plan, if the commission determines that carrying out
the plan would be in the public interest, or
(b) reject the plan.
(7) The commission may accept or reject, under subsection (6), a part of a
public utility's plan, and, if the commission rejects a part of a plan,
(a) the public utility may resubmit the part within a time specified
by the commission, and
(b) the commission may accept or reject, under subsection (6), the
part resubmitted under paragraph (a) of this subsection.
(8) In determining under subsection (6) whether to accept a long-term
resource plan, the commission must consider
Page 22 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 79: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/79.jpg)
(a) the applicable of British Columbia's energy objectives,
(b) the extent to which the plan is consistent with the applicable
requirements under sections 6 and 19 of the Clean Energy Act,
(c) whether the plan shows that the public utility intends to pursue
adequate, cost-effective demand-side measures, and
(d) the interests of persons in British Columbia who receive or may
receive service from the public utility.
(9) In accepting under subsection (6) a long-term resource plan, or part of a
plan, the commission may do one or both of the following:
(a) order that a proposed utility plant or system, or extension of
either, referred to in the accepted plan or the part is exempt from
the operation of section 45 (1);
(b) order that, despite section 75, a matter the commission
considers to be adequately addressed in the accepted plan or the
part is to be considered as conclusively determined for the
purposes of any hearing or proceeding to be conducted by the
commission under this Act, other than a hearing or proceeding for
the purposes of section 99.
Expenditure schedule
44.2 (1) A public utility may file with the commission an expenditure schedule
containing one or more of the following:
(a) a statement of the expenditures on demand-side measures the
public utility has made or anticipates making during the period
addressed by the schedule;
(b) a statement of capital expenditures the public utility has made
or anticipates making during the period addressed by the schedule;
(c) a statement of expenditures the public utility has made or
anticipates making during the period addressed by the schedule to
acquire energy from other persons.
(2) The commission may not consent under section 61 (2) to an amendment
to or a rescission of a schedule filed under section 61 (1) to the extent that
the amendment or the rescission is for the purpose of recovering
expenditures referred to in subsection (1) (a) of this section, unless
(a) the expenditure is the subject of a schedule filed and accepted
under this section, or
Page 23 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 80: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/80.jpg)
(b) the amendment or rescission is for the purpose of setting an
interim rate.
(3) After reviewing an expenditure schedule submitted under subsection (1),
the commission, subject to subsections (5), (5.1) and (6), must
(a) accept the schedule, if the commission considers that making
the expenditures referred to in the schedule would be in the public
interest, or
(b) reject the schedule.
(4) The commission may accept or reject, under subsection (3), a part of a
schedule.
(5) In considering whether to accept an expenditure schedule filed by a
public utility other than the authority, the commission must consider
(a) the applicable of British Columbia's energy objectives,
(b) the most recent long-term resource plan filed by the public
utility under section 44.1, if any,
(c) the extent to which the schedule is consistent with the
applicable requirements under sections 6 and 19 of the Clean Energy Act,
(d) if the schedule includes expenditures on demand-side
measures, whether the demand-side measures are cost-effective
within the meaning prescribed by regulation, if any, and
(e) the interests of persons in British Columbia who receive or may
receive service from the public utility.
(5.1) In considering whether to accept an expenditure schedule filed by the
authority, the commission, in addition to considering the interests of persons
in British Columbia who receive or may receive service from the authority,
must consider and be guided by
(a) British Columbia's energy objectives,
(b) an applicable integrated resource plan approved under section
4 of the Clean Energy Act,
(c) the extent to which the schedule is consistent with the
requirements under section 19 of the Clean Energy Act, and
(d) if the schedule includes expenditures on demand-side
measures, the extent to which the demand-side measures are cost-
effective within the meaning prescribed by regulation, if any.
Page 24 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 81: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/81.jpg)
(6) If the commission considers that an expenditure in an expenditure
schedule was determined to be in the public interest in the course of
determining that a long-term resource plan was in the public interest under
section 44.1 (6),
(a) subsection (5) of this section does not apply with respect to
that expenditure, and
(b) the commission must accept under subsection (3) the
expenditure in the expenditure schedule.
Certificate of public convenience and necessity
45 (1) Except as otherwise provided, after September 11, 1980, a person must
not begin the construction or operation of a public utility plant or system, or
an extension of either, without first obtaining from the commission a
certificate that public convenience and necessity require or will require the
construction or operation.
(2) For the purposes of subsection (1), a public utility that is operating a
public utility plant or system on September 11, 1980 is deemed to have
received a certificate of public convenience and necessity, authorizing it
(a) to operate the plant or system, and
(b) subject to subsection (5), to construct and operate extensions
to the plant or system.
(3) Nothing in subsection (2) authorizes the construction or operation of an
extension that is a reviewable project under the Environmental Assessment Act.
(4) The commission may, by regulation, exclude utility plant or categories of
utility plant from the operation of subsection (1).
(5) If it appears to the commission that a public utility should, before
constructing or operating an extension to a utility plant or system, apply for
a separate certificate of public convenience and necessity, the commission
may, not later than 30 days after construction of the extension is begun,
order that subsection (2) does not apply in respect of the construction or
operation of the extension.
(6) A public utility must file with the commission at least once each year a
statement in a form prescribed by the commission of the extensions to its
facilities that it plans to construct.
(6.1) and (6.2) [Repealed 2008-13-8.]
Page 25 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 82: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/82.jpg)
(7) Except as otherwise provided, a privilege, concession or franchise
granted to a public utility by a municipality or other public authority after
September 11, 1980 is not valid unless approved by the commission.
(8) The commission must not give its approval unless it determines that the
privilege, concession or franchise proposed is necessary for the public
convenience and properly conserves the public interest.
(9) In giving its approval, the commission
(a) must grant a certificate of public convenience and necessity,
and
(b) may impose conditions about
(i) the duration and termination of the privilege, concession
or franchise, or
(ii) construction, equipment, maintenance, rates or service,
as the public convenience and interest reasonably require.
Procedure on application
46 (1) An applicant for a certificate of public convenience and necessity must file
with the commission information, material, evidence and documents that the
commission prescribes.
(2) The commission has a discretion whether or not to hold any hearing on
the application.
(3) Subject to subsections (3.1) to (3.3), the commission may issue or
refuse to issue the certificate, or may issue a certificate of public
convenience and necessity for the construction or operation of a part only of
the proposed facility, line, plant, system or extension, or for the partial
exercise only of a right or privilege, and may attach to the exercise of the
right or privilege granted by the certificate, terms, including conditions about
the duration of the right or privilege under this Act as, in its judgment, the
public convenience or necessity may require.
(3.1) In deciding whether to issue a certificate under subsection (3) applied
for by a public utility other than the authority, the commission must consider
(a) the applicable of British Columbia's energy objectives,
(b) the most recent long-term resource plan filed by the public
utility under section 44.1, if any, and
(c) the extent to which the application for the certificate is
consistent with the applicable requirements under sections 6 and
Page 26 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 83: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/83.jpg)
19 of the Clean Energy Act,
(3.2) Section (3.1) does not apply if the commission considers that the
matters addressed in the application for the certificate were determined to
be in the public interest in the course of considering a long-term resource
plan under section 44.1.
(3.3) In deciding whether to issue a certificate under subsection (3) to the
authority, the commission, in addition to considering the interests of persons
in British Columbia who receive or may receive service from the authority,
must consider and be guided by
(a) British Columbia's energy objectives,
(b) an applicable integrated resource plan approved under section
4 of the Clean Energy Act, and
(c) the extent to which the application for the certificate is
consistent with the requirements under section 19 of the Clean Energy Act.
(4) If a public utility desires to exercise a right or privilege under a consent,
franchise, licence, permit, vote or other authority that it proposes to obtain
but that has not, at the date of the application, been granted to it, the public
utility may apply to the commission for an order preliminary to the issue of
the certificate.
(5) On application under subsection (4), the commission may make an order
declaring that it will, on application, under rules it specifies, issue the desired
certificate, on the terms it designates in the order, after the public utility has
obtained the proposed consent, franchise, licence, permit, vote or other
authority.
(6) On evidence satisfactory to the commission that the consent, franchise,
licence, permit, vote or other authority has been secured, the commission
must issue a certificate under section 45.
(7) The commission may amend a certificate previously issued, or issue a
new certificate, for the purpose of renewing, extending or consolidating a
certificate previously issued.
(8) A public utility to which a certificate is, or has been, issued, or to which
an exemption is, or has been, granted under section 45 (4), is authorized,
subject to this Act, to construct, maintain and operate the plant, system or
extension authorized in the certificate or exemption.
Order to cease work
Page 27 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 84: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/84.jpg)
47 (1) If a public utility
(a) is engaged, or is about to engage, in the construction or
operation of a plant or system, and
(b) has not secured or has not been exempted from the
requirement for, or is not deemed to have received a certificate of
public convenience and necessity required under this Act,
any interested person may file a complaint with the commission.
(2) The commission may, with or without notice, make an order requiring
the public utility complained of to cease the construction or operation until
the commission makes and files its decision on the complaint, or until further
order of the commission.
(3) The commission may, after a hearing, make the order and specify the
terms under this Act that it considers advisable.
(4) If the commission considers it necessary to determine whether a person
is engaged or is about to engage in construction or operation of any plant or
system, the commission may request that person to provide information
required by it and to answer specifically all questions of the commission, and
the person must comply.
Cancellation or suspension of franchises and permits
48 (1) If the commission, after a hearing, determines that a public utility
holding a franchise, licence or permit has failed to exercise or has not
continued to exercise or use the right and privilege granted by the franchise,
licence or permit, the commission may
(a) cancel the franchise, licence or permit, or
(b) suspend for a time the commission considers advisable the
rights, or any of them, under the franchise, licence or permit.
(2) If a franchise, licence or permit is cancelled, the utility must cease to
operate.
(3) If a right under a franchise, licence or permit is suspended, the utility
must cease to exercise the suspended right during the period of suspension.
Accounts and reports
49 The commission may, by order, require every public utility to do one or more
of the following:
(a) keep the records and accounts of the conduct of the utility's
Page 28 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 85: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/85.jpg)
business that the commission may specify, and for public utilities of
the same class, adopt a uniform system of accounting specified by
the commission;
(b) provide, at the times and in the form and manner the
commission specifies, a detailed report of finances and operations,
verified as specified;
(c) file with the commission, at the times and in the form and
manner the commission specifies, a report of every accident
occurring to or on the plant, equipment or other property of the
utility, if the accident is of such nature as to endanger the safety,
health or property of any person;
(d) obtain from a board, tribunal, municipal or other body or official
having jurisdiction or authority, permission, if necessary, to
undertake or carry on a work or service ordered by the commission
to be undertaken or carried on that is contingent on the
permission.
Commission approval of issue of securities
50 (1) In this section, "security" means any share of any class of shares of a
public utility or any bond, debenture, note or other obligation of a public
utility whether secured or unsecured.
(2) Except in the case of a security evidencing indebtedness payable less
than one year from its date, a public utility must not issue a security without
first obtaining approval of the commission under this section and, if
section 54 applies, under that section.
(3) Without first obtaining the commission's approval, a public utility must
not,
(a) in respect of a security that it has issued,
(i) increase a fixed dividend or fixed interest rate,
(ii) alter a maturity date for the issue,
(ii) restrict the utility's right to redeem the issue,
(iv) increase the premium to be paid on redemption, or
(v) make a material alteration in the characteristics of the
security, or
(b) purchase, redeem or otherwise acquire shares of any class of
the utility except in accordance with any special rights or
restrictions attached to them.
Page 29 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 86: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/86.jpg)
(4) Subsections (2) and (3) do not apply to the issue of shares under a
genuine employee share purchase plan or genuine employee share option
plan that has been filed with the commission.
(5) Without first obtaining the commission's approval, a public utility must
not guarantee the payment of all or part of a loan or all or part of the
interest on a loan made to another person.
(6) A public utility is not liable under a guarantee given by it after
June 29, 1988, in contravention of subsection (5) or of a condition of
approval imposed under subsection (7).
(7) The commission may give its approval under this section subject to
conditions and requirements considered necessary or desirable in the public
interest.
(8) A municipality is not a utility for the purpose of this section.
Restraint on capitalization
51 A public utility must not do any of the following:
(a) capitalize a franchise or right to be a corporation;
(b) capitalize a franchise, licence, permit or concession in excess of
the amount that, exclusive of tax or annual charge, is paid to the
government, a municipality or other public authority as
consideration for the franchise, licence, permit or concession;
(c) issue a security or evidence of indebtedness against a contract
for consolidation, amalgamation, merger or lease.
Restraint on disposition
52 (1) Except for a disposition of its property in the ordinary course of business,
a public utility must not, without first obtaining the commission's approval,
(a) dispose of or encumber the whole or a part of its property,
franchises, licences, permits, concessions, privileges or rights, or
(b) by any means, direct or indirect, merge, amalgamate or
consolidate in whole or in part its property, franchises, licences,
permits, concessions, privileges or rights with those of another
person.
(2) The commission may give its approval under this section subject to
conditions and requirements considered necessary or desirable in the public
interest.
Page 30 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 87: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/87.jpg)
Consolidation, amalgamation and merger
53 (1) A public utility must not consolidate, amalgamate or merge with another
person
(a) unless the Lieutenant Governor in Council
(i) has first received from the commission a report under
this section including an opinion that the consolidation,
amalgamation or merger would be beneficial in the public
interest, and
(ii) has, by order, consented to the consolidation,
amalgamation or merger, and
(b) except in accordance with an order made under paragraph (a).
(2) The Lieutenant Governor in Council may, in an order under
subsection (1) (a), include conditions and requirements that the Lieutenant
Governor in Council considers necessary or advisable.
(3) An application for consent of the Lieutenant Governor in Council under
subsection (1) must be made to the commission by the public utility.
(4) The commission must inquire into the application and may for that
purpose hold a hearing.
(5) On conclusion of its inquiry, the commission must,
(a) if it is of the opinion that the consolidation, amalgamation or
merger would be beneficial in the public interest, submit its report
and findings to the Lieutenant Governor in Council, or
(b) dismiss the application.
(6) If a public utility gives notice to its shareholders of a meeting of
shareholders in connection with a consolidation, amalgamation or merger, it
must
(a) set out in the notice the provisions of this section, and
(b) file a copy of the notice with the commission at the time of
mailing to the shareholders.
Reviewable interests
54 (1) In this section:
"child" includes a child in respect of whom a person referred to in the
definition of "spouse" stands in the place of a parent;
Page 31 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 88: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/88.jpg)
"offeree" means a person to whom a take over bid is made;
"offeror" means a person, other than an agent, who makes a take over
bid and includes 2 or more persons
(a) whose bids are made jointly or in concert, or
(b) who intend to exercise jointly or in concert any voting rights
attaching to the shares for which a take over bid is made;
"spouse" means a person who
(a) is married to another person, or
(b) is living and cohabiting with another person in a marriage-like
relationship, including a marriage-like relationship between persons
of the same gender, and has lived and cohabited in that
relationship for a period of at least 2 years;
"take over bid" has the same meaning as in section 92 of the Securities Act;
"voting share" means a share that has, or may under any special rights
or restrictions attached to the share have, the right to vote for the
election of directors, and for this purpose "share" includes
(a) a security convertible into such a share, and
(b) options and rights to acquire such a share or such a convertible
security.
(2) For the purposes of this section, persons are associates if any of the
following apply:
(a) one of the persons is a corporation
(i) of which more than 10% of the shares outstanding of any
class of the corporation are beneficially owned or controlled,
directly or indirectly, by the other person, or
(ii) of which the other is a director or officer;
(b) each of the persons is a corporation and
(i) more than 10% of the shares outstanding of any class of
shares of one are beneficially owned or controlled, directly or
indirectly, by the other, or
(ii) more than 10% of the shares outstanding of any class of
shares of each are beneficially owned or controlled, directly
or indirectly, by the same person;
Page 32 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 89: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/89.jpg)
(c) they are partners or one is a partnership of which the other is a
partner;
(d) one is a trust in which the other has a substantial beneficial
interest or for which the other serves as trustee or in a similar
capacity;
(e) they are obligated to act in concert in exercising a voting right
in respect of shares of the utility;
(f) one is the spouse or child of the other;
(g) one is a relative of the other or of the other's spouse and has
the same home as the other.
(3) For the purpose of subsection (2), if a person has more than one
associate, those associates are associates of each other.
(4) For the purpose of this section, a person has a reviewable interest in a
public utility if
(a) the person owns or controls, or
(b) the person and the person's associates own or control,
in the aggregate more than 20% of the voting shares outstanding of any
class of shares of the utility.
(5) A public utility must not, without the approval of the commission,
(a) issue, sell, purchase or register on its books a transfer of
shares in the capital of the utility or create, or
(b) attach to any shares, whether issued or unissued, any special
rights or restrictions,
if the issue, sale, purchase or registration or the creation or attachment of
the special rights or restrictions would
(c) cause any person to have a reviewable interest,
(d) increase the percentage of voting shares owned by a person
who has a reviewable interest,
(e) be a registration of a transfer of shares, the acquisition of
which was contrary to subsection (7) or (8), or
(f) increase the voting rights attached to any shares owned by a
person who has a reviewable interest.
(6) Failure of a public utility to comply with subsection (5) does not give rise
to an offence if the public utility acts in the genuine belief based on an
Page 33 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 90: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/90.jpg)
enquiry made with reasonable care, that the issue, sale, purchase or
registration, or the creation or attachment of the special rights or
restrictions, would not have the effects referred to in subsection (5) (c)
to (f).
(7) A person must not acquire or acquire control of such numbers of any
class of shares of a public utility as
(a) in themselves, or
(b) together with shares already owned or controlled by the person
and the person's associates,
cause the person to have a reviewable interest in a public utility unless the
person has obtained the commission's approval.
(8) Except if the acquisition or acquisition of control does not increase the
percentage of voting shares held, owned or controlled by the person or by
the person and the person's associates, a person having a reviewable
interest in a public utility and any associate of that person must not acquire
or acquire control of any voting shares in the public utility unless the person
or associate has obtained the commission's approval.
(9) The commission may give its approval under this section subject to
conditions and requirements it considers necessary or desirable in the public
interest, but the commission must not give its approval under this section
unless it considers that the public utility and the users of the service of the
public utility will not be detrimentally affected.
(10) If the commission determines that there has been a contravention of
subsection (5), (7) or (8), the commission may, on notice to the public utility
and after a hearing, make an order imposing on the public utility conditions
and requirements respecting the management and operation of the utility.
(11) A proceeding must not be brought against the commission or the
government by reason of the exercise by the commission of its powers under
subsection (9) or (10).
(12) An offeror who makes a take over bid for shares of a public utility must
(a) file with the commission a copy of the take over bid and all
supporting or supplementary material within 5 days after the date
the material is first sent to offerees, and
(b) include in or attach to the take over bid a notice setting out the
provisions of this section and stating the number, without
duplication, and designation of any shares of the public utility held
by the offeror and the offeror's associates.
Page 34 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 91: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/91.jpg)
(13) Nothing in subsection (12) relieves a person from any requirement
under the Securities Act.
Appraisal of utility property
55 (1) The commission may
(a) ascertain by appraisal the value of the property of a public
utility, and
(b) inquire into every fact that, in its judgment, has a bearing on
that value, including the amount of money actually and reasonably
expended in the undertaking to provide service reasonably
adequate to the requirements of the community served by the
utility as that community exists at the time of the appraisal.
(2) In making its appraisal, the commission must have access to all records
in the possession of a municipality or any ministry or board of the
government.
(3) In making its appraisal under this section, the commission may order
(a) that all or part of the costs and expenses of the commission in
making the appraisal must be paid by the public utility, and
(b) that the utility pay an amount as the work of appraisal
proceeds.
(4) The certificate of the chair of the commission is conclusive evidence of
the amounts payable under subsection (3).
(5) Expenses approved by the commission in connection with an appraisal,
including expenses incurred by the public utility whose property is appraised,
must be charged by the utility to the cost of operating the property as a
current item of expense, and the commission may, by order, authorize or
require the utility to amortize this charge over a period and in the manner
the commission specifies.
Depreciation accounts and funds
56 (1) If the commission, after inquiry, considers that it is necessary and
reasonable that a depreciation account should be carried by a public utility,
the commission may, by order, require the utility to keep an adequate
depreciation account under rules and forms of account specified by the
commission.
(2) The commission must determine and, by order after a hearing, set
Page 35 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 92: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/92.jpg)
proper and adequate rates of depreciation.
(3) The rates must be set so as to provide, in addition to the expense of
maintenance, the amounts required to keep the public utility's property in a
state of efficiency in accordance with technical and engineering progress in
that industry of the utility.
(4) A public utility must adjust its depreciation accounts to conform to the
rates fixed by the commission and, if ordered by the commission, must set
aside out of earnings whatever money is required and carry it in a
depreciation fund.
(5) Without the consent of the commission, the depreciation fund must not
be expended other than for replacement, improvement, new construction,
extension or addition to the property of the utility.
Reserve funds
57 (1) The commission may, by order, require a public utility to create and
maintain a reserve fund for any purpose the commission considers proper,
and may fix the amount or rate to be charged each year in the accounts of
the utility for the purpose of creating the reserve fund.
(2) The commission may order that no reserve fund other than that created
and maintained as directed by the commission may be created by a public
utility.
Commission may order amendment of schedules
58 (1) The commission may,
(a) on its own motion, or
(b) on complaint by a public utility or other interested person that
the existing rates in effect and collected or any rates charged or
attempted to be charged for service by a public utility are unjust,
unreasonable, insufficient, unduly discriminatory or in
contravention of this Act, the regulations or any other law,
after a hearing, determine the just, reasonable and sufficient rates to be
observed and in force.
(2) If the commission makes a determination under subsection (1), it must,
by order, set the rates.
(2.1) The commission must set rates for the authority in accordance with
(a) [Repealed RS1996-473-58 (2.3).]
Page 36 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 93: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/93.jpg)
(b) the prescribed factors and guidelines, if any.
(2.2) [Repealed RS1996-473-58 (2.3).]
(2.3) Subsections (2.1) (a) and (2.2) are repealed on March 31, 2010.
(2.4) Despite subsection (2.3), a requirement prescribed for the purposes of
subsection (2.1) (a) that is in effect immediately before March 31, 2010,
continues to apply after that date as though subsection (2.2) were still in
force, unless the prescribed requirement is amended or repealed after that
date.
(3) The public utility affected by an order under this section must
(a) amend its schedules in conformity with the order, and
(b) file amended schedules with the commission.
Rate rebalancing
58.1 (1) In this section, "revenue-cost ratio" means the amount determined by
dividing the authority's revenues from a class of customers during a period of
time by the authority's costs to serve that class of customers during the
same period of time.
(2) This section applies despite
(a) any other provision of
(i) this Act, or
(ii) the regulations, except a regulation under section 3, or
(b) any previous decision of the commission.
(3) The following decision and orders of the commission are of no force or
effect to the extent that they require the authority to do anything for the
purpose of changing revenue-cost ratios:
(a) 2007 RDA Phase 1 Decision, issued October 26, 2007;
(b) order G-111-07, issued September 7, 2007;
(c) order G-130-07, issued October 26, 2007;
(d) order G-10-08, issued January 21, 2008,
and the rates of the authority that applied immediately before this section
comes into force continue to apply and are deemed to be just, reasonable
and not unduly discriminatory.
(4) [Repealed RS1996-473-58.1 (5).]
(5) Subsection (4) is repealed on March 31, 2010.
Page 37 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 94: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/94.jpg)
(6) Nothing in subsection (3) prevents the commission from setting rates for
the authority, but the commission, after March 31, 2010, may not set rates
for the authority such that the revenue-cost ratio, expressed as a
percentage, for any class of customers increases by more than 2 percentage
points per year compared to the revenue-cost ratio for that class
immediately before the increase.
Discrimination in rates
59 (1) A public utility must not make, demand or receive
(a) an unjust, unreasonable, unduly discriminatory or unduly
preferential rate for a service provided by it in British Columbia, or
(b) a rate that otherwise contravenes this Act, the regulations,
orders of the commission or any other law.
(2) A public utility must not
(a) as to rate or service, subject any person or locality, or a
particular description of traffic, to an undue prejudice or
disadvantage, or
(b) extend to any person a form of agreement, a rule or a facility
or privilege, unless the agreement, rule, facility or privilege is
regularly and uniformly extended to all persons under substantially
similar circumstances and conditions for service of the same
description.
(3) The commission may, by regulation, declare the circumstances and
conditions that are substantially similar for the purpose of subsection (2) (b).
(4) It is a question of fact, of which the commission is the sole judge,
(a) whether a rate is unjust or unreasonable,
(b) whether, in any case, there is undue discrimination, preference,
prejudice or disadvantage in respect of a rate or service, or
(c) whether a service is offered or provided under substantially
similar circumstances and conditions.
(5) In this section, a rate is "unjust" or "unreasonable" if the rate is
(a) more than a fair and reasonable charge for service of the
nature and quality provided by the utility,
(b) insufficient to yield a fair and reasonable compensation for the
service provided by the utility, or a fair and reasonable return on
the appraised value of its property, or
Page 38 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 95: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/95.jpg)
(c) unjust and unreasonable for any other reason.
Setting of rates
60 (1) In setting a rate under this Act
(a) the commission must consider all matters that it considers
proper and relevant affecting the rate,
(b) the commission must have due regard to the setting of a rate
that
(i) is not unjust or unreasonable within the meaning of
section 59,
(ii) provides to the public utility for which the rate is set a
fair and reasonable return on any expenditure made by it to
reduce energy demands, and
(iii) encourages public utilities to increase efficiency, reduce
costs and enhance performance,
(b.1) the commission may use any mechanism, formula or other
method of setting the rate that it considers advisable, and may
order that the rate derived from such a mechanism, formula or
other method is to remain in effect for a specified period, and
(c) if the public utility provides more than one class of service, the
commission must
(i) segregate the various kinds of service into distinct classes
of service,
(ii) in setting a rate to be charged for the particular service
provided, consider each distinct class of service as a self
contained unit, and
(iii) set a rate for each unit that it considers to be just and
reasonable for that unit, without regard to the rates fixed for
any other unit.
(2) In setting a rate under this Act, the commission may take into account a
distinct or special area served by a public utility with a view to ensuring, so
far as the commission considers it advisable, that the rate applicable in each
area is adequate to yield a fair and reasonable return on the appraised value
of the plant or system of the public utility used, or prudently and reasonably
acquired, for the purpose of providing the service in that special area.
(3) If the commission takes a special area into account under subsection (2),
it must have regard to the special considerations applicable to an area that is
Page 39 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 96: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/96.jpg)
sparsely settled or has other distinctive characteristics.
(4) For this section, the commission must exclude from the appraised value
of the property of the public utility any franchise, licence, permit or
concession obtained or held by the utility from a municipal or other public
authority beyond the money, if any, paid to the municipality or public
authority as consideration for that franchise, licence, permit or concession,
together with necessary and reasonable expenses in procuring the franchise,
licence, permit or concession.
Rate schedules to be filed with commission
61 (1) A public utility must file with the commission, under rules the commission
specifies and within the time and in the form required by the commission,
schedules showing all rates established by it and collected, charged or
enforced or to be collected or enforced.
(2) A schedule filed under subsection (1) must not be rescinded or amended
without the commission's consent.
(3) The rates in schedules as filed and as amended in accordance with this
Act and the regulations are the only lawful, enforceable and collectable rates
of the public utility filing them, and no other rate may be collected, charged
or enforced.
(4) A public utility may file with the commission a new schedule of rates that
the utility considers to be made necessary by a rise in the price, over which
the utility has no effective control, required to be paid by the public utility for
its gas supplies, other energy supplied to it, or expenses and taxes, and the
new schedule may be put into effect by the public utility on receiving the
approval of the commission.
(5) Within 60 days after the date it approves a new schedule under
subsection (4), the commission may,
(a) on complaint of a person whose interests are affected, or
(b) on its own motion,
direct an inquiry into the new schedule of rates having regard to the fixing of
a rate that is not unjust or unreasonable.
(6) After an inquiry under subsection (5), the commission may
(a) rescind or vary the increase and order a refund or customer
credit by the utility of all or part of the money received by way of
increase, or
Page 40 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 97: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/97.jpg)
(b) confirm the increase or part of it.
Schedules must be available to public
62 A public utility must keep a copy of the schedules filed open to and available
for public inspection under commission rules.
Schedules must be observed
63 A public utility must not, without the consent of the commission, directly or
indirectly, in any way charge, demand, collect or receive from any person for
a regulated service provided by it, or to be provided by it, compensation that
is greater than, less than or other than that specified in the subsisting
schedules of the utility applicable to that service and filed under this Act.
Orders respecting contracts
64 (1) If the commission, after a hearing, finds that under a contract entered
into by a public utility a person receives a regulated service at rates that are
unduly preferential or discriminatory, the commission may
(a) declare the contract unenforceable, either wholly or to the
extent the commission considers proper, and the contract is then
unenforceable to the extent specified, or
(b) make any other order it considers advisable in the
circumstances.
(2) If a contract is declared unenforceable either wholly or in part, the
commission may order that rights accrued before the date of the order be
preserved, and those rights may then be enforced as fully as if no
proceedings had been taken under this section.
Part 3.1
Repealed
64.01-64.04 [Repealed 2010-22-69.]
Part 4 — Carriers, Purchasers and Processors
Definition
64.1 In this Part, "sufficient notice" means notice in the manner and form,
Page 41 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 98: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/98.jpg)
within the period, with the content and by the person required by the commission.
Common carrier
65 (1) In this section, "common carrier" means a person declared to be a
common carrier by the commission under subsection (2) (a).
(2) On application by an interested person and after a hearing, sufficient
notice of which has been given to all persons the commission believes may
be affected, the commission may
(a) issue an order, to be effective on a date determined by it,
declaring a person who owns or operates a pipeline for the
transportation of
(i) one or more of crude oil, natural gas and natural gas
liquids, or
(ii) any other type of energy resource prescribed by the
Lieutenant Governor in Council,
to be a common carrier with respect to the operation of the
pipeline, and
(b) in the order establish the conditions under which the common
carrier must accept and carry energy resources.
(3) On application by a person that uses or seeks to use facilities operated
by a common carrier, the commission, by order and after a hearing,
sufficient notice of which has been given to all persons the commission
believes may be affected, may establish the conditions under which the
common carrier must accept and carry crude oil, natural gas, natural gas
liquids or prescribed energy resources referred to in subsection (2) (a).
(3.1) Without limiting subsection (2) (b) or (3), the commission may
establish conditions with respect to a common carrier in relation to any of
the following matters:
(a) a toll that may be charged by the common carrier;
(b) extensions, improvements or abandonment of service.
(3.2) The commission may order that section 43 applies with respect to a
common carrier as though the common carrier were a public utility referred
to in that section.
(4) A common carrier must not unreasonably discriminate
(a) between itself and persons who apply to the common carrier to
transport, in its pipeline, crude oil, natural gas, natural gas liquids
Page 42 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 99: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/99.jpg)
or prescribed energy resources referred to in
subsection (2) (a) (ii), or
(b) among the persons who so apply.
(5) A common carrier must comply with the conditions in any order
applicable to the common carrier that is made under this section.
(6) The commission may, by order and after a hearing, sufficient notice of
which has been given to all persons the commission believes may be
affected, vary an order made under this section.
(7) If an agreement between a common carrier and another person
(a) is made before an order is made under this section, and
(b) is inconsistent with the conditions established by the
commission in an order made under this section,
the commission may, in the order or in a subsequent order, after a hearing,
sufficient notice of which has been given to all persons the commission
believes may be affected, vary the agreement between the parties to
eliminate the inconsistency.
(8) Subject to subsection (9), if an agreement is varied under subsection
(7), the common carrier and the commission are not liable for damages
suffered as a result of that variation by the other party to the agreement.
(9) Subsection (8) does not apply to a common carrier referred to in that
subsection in relation to anything done or omitted by that person in bad
faith.
Common purchaser
66 (1) In this section, "common purchaser" means a person declared to be a
common purchaser by the commission under subsection (2).
(2) On application by an interested person and after a hearing, sufficient
notice of which has been given to persons the commission believes may be
affected, the commission may issue an order, to be effective on a date
determined by it, declaring a person who purchases or otherwise acquires,
from a pool designated by the commission, crude oil, natural gas or natural
gas liquids to be a common purchaser of the crude oil, natural gas or natural
gas liquids.
(3) On application by a person whose crude oil, natural gas or natural gas
liquids is or will be purchased by a common purchaser, the commission, by
order and after a hearing, sufficient notice of which has been given to all
Page 43 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 100: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/100.jpg)
persons the commission believes may be affected, may establish the
conditions under which the common purchaser must purchase crude oil,
natural gas or natural gas liquid.
(4) A common purchaser must not unreasonably discriminate
(a) between itself and persons who apply for the services offered
by the common purchaser, or
(b) among the persons who so apply.
(5) A common purchaser must comply with the conditions in any order
applicable to the common purchaser that is made under this section.
(6) The commission may, by order and after a hearing, sufficient notice of
which has been given to all persons the commission believes may be
affected, vary an order made under this section.
(7) If an agreement between a common purchaser and another person
(a) is made before an order is made under this section, and
(b) is inconsistent with the conditions established by the
commission in an order made under this section,
the commission may, in the order or in a subsequent order, after a hearing,
sufficient notice of which has been given to all persons the commission
believes may be affected, vary the agreement between the parties to
eliminate the inconsistency.
(8) Subject to subsection (9), if an agreement is varied under
subsection (7), the common purchaser and the commission are not liable for
damages suffered as a result of that variation by the other party to the
agreement.
(9) Subsection (8) does not apply to a common purchaser referred to in that
subsection in relation to anything done or omitted by that person in bad
faith.
Common processor
67 (1) In this section, "common processor" means a person declared to be a
common processor by the commission under subsection (2).
(2) On application by an interested person and after a hearing, sufficient
notice of which has been given to all persons the commission believes may
be affected, the commission may issue an order, to be effective on a date
determined by it, declaring the person that owns or operates a plant for
processing natural gas to be a common processor of natural gas.
Page 44 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 101: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/101.jpg)
(3) On application by a person that uses or seeks to use facilities operated
by a common processor, the commission, by order and after a hearing,
sufficient notice of which has been given to all persons the commission
believes may be affected, may establish the conditions under which the
common processor must accept and process natural gas.
(4) A common processor must not unreasonably discriminate
(a) between itself and persons who apply for the services offered
by the common processor, or
(b) among the persons who so apply.
(5) A common processor must comply with the conditions in any order
applicable to the common processor made under this section.
(6) The commission may, by order and after a hearing, sufficient notice of
which has been given to all persons the commission believes may be
affected, vary an order made under this section.
(7) If an agreement between a common processor and another person
(a) is made before an order is made under this section, and
(b) is inconsistent with the conditions established by the
commission in an order made under this section,
the commission may, in the order or a subsequent order, after a hearing,
sufficient notice of which has been given to all persons the commission
believes may be affected, vary the agreement between the parties to
eliminate the inconsistency.
(8) Subject to subsection (9), if an agreement is varied under subsection
(7), the common processor and the commission are not liable for damages
suffered as a result of that variation by the other party to the agreement.
(9) Subsection (8) does not apply to a common processor referred to in that
subsection in relation to anything done or omitted by that person in bad
faith.
Part 5 — Electricity Transmission
Definitions
68 In this Part:
"electricity transmission facilities" means conductors, circuits,
transmission towers, substations, switching stations, transformers and
Page 45 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 102: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/102.jpg)
any other equipment or facilities that are necessary for the purpose of
transmitting electricity;
"energy" means electricity or natural gas;
"energy supply contract" means a contract under which energy is sold
by a seller to a public utility or another buyer, and includes an
amendment of that contract, but does not include a contract in respect of
which a schedule is approved under section 61 of this Act;
"gas marketer" means a person who holds a gas marketer licence
issued under section 71.1 (6) (a);
"low-volume consumer" has the meaning ascribed to it under rules
made by the commission under section 71.1 (10);
"natural gas" means any methane, propane or butane that is sold for
consumption as a domestic, commercial or industrial fuel or as an
industrial raw material;
"public utility" means a public utility to which Part 3 applies;
"seller" means a person who sells or trades in energy.
Repealed
69 [Repealed 2003-46-10.]
Use of electricity transmission facilities
70 (1) On application and after a hearing, the commission may make an order
directing a public utility to allow a person, other than a public utility, to use
the electricity transmission facilities of the public utility if the commission
finds that
(a) the person and the public utility have failed to agree on the use
of the facilities or on the conditions or compensation for their use,
(b) the use of the facilities will not prevent the public utility or
other users from performing their duties or result in any substantial
detriment to their service, and
(c) the public interest requires the use of the facilities by the
person.
(2) An order under subsection (1) may contain terms and conditions the
commission considers advisable, including terms and conditions respecting
the rates payable to the public utility for the use of its electricity
Page 46 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 103: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/103.jpg)
transmission facilities.
(3) After a hearing, the commission may, by order, vary or rescind an order
made under this section.
(4) Any interested person may apply to the commission for an order under
this section, and the application must contain the information the
commission specifies.
Energy supply contracts
71 (1) Subject to subsection (1.1), a person who, after this section comes into
force, enters into an energy supply contract must
(a) file a copy of the contract with the commission under rules and
within the time it specifies, and
(b) provide to the commission any information it considers
necessary to determine whether the contract is in the public
interest.
(1.1) Subsection (1) does not apply to an energy supply contract for the sale
of natural gas unless the sale is to a public utility.
(2) The commission may make an order under subsection (3) if the
commission, after a hearing, determines that an energy supply contract to
which subsection (1) applies is not in the public interest.
(2.1) In determining under subsection (2) whether an energy supply contract
filed by a public utility other than the authority is in the public interest, the
commission must consider
(a) the applicable of British Columbia's energy objectives,
(b) the most recent long-term resource plan filed by the public
utility under section 44.1, if any,
(c) the extent to which the energy supply contract is consistent
with the applicable requirements under sections 6 and 19 of the
Clean Energy Act,
(d) the interests of persons in British Columbia who receive or may
receive service from the public utility,
(e) the quantity of the energy to be supplied under the contract,
(f) the availability of supplies of the energy referred to in
paragraph (e),
(g) the price and availability of any other form of energy that could
Page 47 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 104: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/104.jpg)
be used instead of the energy referred to in paragraph (e), and
(h) in the case only of an energy supply contract that is entered
into by a public utility, the price of the energy referred to in
paragraph (e).
(2.2) Subsection (2.1) (a) to (c) does not apply if the commission considers
that the matters addressed in the energy supply contract filed under
subsection (1) were determined to be in the public interest in the course of
considering a long-term resource plan under section 44.1.
(2.21) In determining under subsection (2) whether an energy supply
contract filed by the authority is in the public interest, the commission, in
addition to considering the interests of persons in British Columbia who
receive or may receive service from the authority, must consider and be
guided by
(a) British Columbia's energy objectives,
(b) an applicable integrated resource plan approved under section
4 of the Clean Energy Act,
(c) the extent to which the energy supply contract is consistent
with the requirements under section 19 of the Clean Energy Act,
(d) the quantity of the energy to be supplied under the contract,
(e) the availability of supplies of the energy referred to in
paragraph (d),
(f) the price and availability of any other form of energy that could
be used instead of the energy referred to in paragraph (d), and
(g) in the case only of an energy supply contract that is entered
into by a public utility, the price of the energy referred to in
paragraph (d).
(2.3) A public utility may submit to the commission a proposed energy
supply contract setting out the terms and conditions of the contract and a
process the public utility intends to use to acquire power from other persons
in accordance with those terms and conditions.
(2.4) If satisfied that it is in the public interest to do so, the commission, by
order, may approve a proposed contract submitted under subsection (2.3)
and a process referred to in that subsection.
(2.5) In considering the public interest under subsection (2.4) with respect
to a submission by a public utility other than the authority, the commission
must consider
Page 48 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 105: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/105.jpg)
(a) the applicable of British Columbia's energy objectives,
(b) the most recent long-term resource plan filed by the public
utility under section 44.1,
(c) the extent to which the application for the proposed contract is
consistent with the applicable requirements under sections 6 and
19 of the Clean Energy Act, and
(d) the interests of persons in British Columbia who receive or may
receive service from the public utility.
(2.51) In considering the public interest under subsection (2.4) with respect
to a submission by the authority, the commission, in addition to considering
the interests of persons in British Columbia who receive or may receive
service from the authority, must consider and be guided by
(a) British Columbia's energy objectives,
(b) an applicable integrated resource plan approved under section
4 of the Clean Energy Act, and
(c) the extent to which the application for the proposed contract is
consistent with the requirements under section 19 of the Clean Energy Act.
(2.6) If the commission issues an order under subsection (2.4), the
commission may not issue an order under subsection (3) with respect to a
contract
(a) entered into exclusively on the terms and conditions, and
(b) as a result of the process
referred to in subsection (2.3).
(3) If subsection (2) applies, the commission may
(a) by order, declare the contract unenforceable, either wholly or
to the extent the commission considers proper, and the contract is
then unenforceable to the extent specified, or
(b) make any other order it considers advisable in the
circumstances.
(4) If an energy supply contract is, under subsection (3) (a), declared
unenforceable either wholly or in part, the commission may order that rights
accrued before the date of the order under that subsection be preserved,
and those rights may then be enforced as fully as if no proceedings had been
taken under this section.
Page 49 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 106: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/106.jpg)
(5) An energy supply contract or other information filed with the commission
under this section must be made available to the public unless the
commission considers that disclosure is not in the public interest.
Gas marketers
71.1 (1) A person must not perform a gas marketing activity within the meaning
of subsection (2) unless
(a) the person is a public utility and the public utility performs the
gas marketing activity within any area in which it is authorized to
provide service, or
(b) the person holds a gas marketer licence issued to the person
under subsection (6) (a).
(2) For the purposes of subsection (1), a person performs a gas marketing
activity if the person
(a) sells or offers to sell natural gas to a low-volume consumer,
(b) acts as the agent or broker for a seller in a sale of natural gas
to a low-volume consumer, or
(c) acts or offers to act as the agent or broker of a low-volume
consumer in a purchase of natural gas.
(3) A gas marketer must comply with the commission rules issued under
subsection (10) and the terms and conditions, if any, attached to the gas
marketer licence held by the gas marketer.
(4) A gas marketer must not carry on or offer to carry on business as a gas
marketer in a name other than the name in which it is licensed unless
authorized to do so in the licence.
(5) If a person is not in compliance with subsection (1), (3) or (4), the
commission may do one or more of
(a) declare an energy supply contract between the person and a
low-volume consumer unenforceable, either wholly or to the extent
the commission considers proper, in which event the contract is
enforceable to the extent specified, and
(b) if the person is a gas marketer,
(i) amend the terms and conditions of, or impose new terms
and conditions on, the gas marketer licence, and
(ii) suspend or cancel the gas marketer licence.
(6) The commission may
Page 50 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 107: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/107.jpg)
(a) on application, issue a gas marketer licence to any person who
is not a public utility,
(b) impose, in respect of any gas marketer licence issued by the
commission, terms and conditions that the commission considers
appropriate,
(c) amend any of the terms and conditions imposed in respect of a
gas marketer licence, and
(d) suspend or cancel a gas marketer licence.
(7) The commission may require, as a condition of granting a gas marketer
licence, that the gas marketer post security in a form, and in accordance
with such terms and conditions, as the commission considers appropriate.
(8) The commission may order that some or all of the security posted by a
gas marketer in accordance with a requirement imposed under
subsection (7) be paid out to those persons who the commission considers
have been or may be affected by an act or omission of the gas marketer.
(9) Section 43 applies to each gas marketer as if that gas marketer were a
public utility.
(10) The commission may make the following rules:
(a) defining "low-volume consumer";
(b) respecting the process by which application may be made for a
gas marketer licence and specifying the form and content of
applications for that licence;
(c) respecting the imposition of terms and conditions on gas
marketer licences;
(d) requiring an applicant for a gas marketer licence to obtain a
bond, letter of credit or other specified security and requiring the
filing with the commission of proof, satisfactory to the commission,
of that security;
(e) respecting the form and content of security that may be
required under paragraph (d) and the person by whom and the
terms on which it is to be held;
(f) respecting the circumstances in which and the persons to whom
disbursement of some or all of the security required under
paragraph (d) is to be made.
Page 51 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 108: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/108.jpg)
Part 6 — Commission Jurisdiction
Jurisdiction of commission to deal with applications
72 (1) The commission has jurisdiction to inquire into, hear and determine an
application by or on behalf of any party interested, complaining that a person
constructing, maintaining, operating or controlling a public utility service or
charged with a duty or power relating to that service, has done, is doing or
has failed to do anything required by this Act or another general or special
Act, or by a regulation, order, bylaw or direction made under any of them.
(2) The commission has jurisdiction to inquire into, hear and determine an
application by or on behalf of any party interested, requesting the
commission to
(a) give a direction or approval which by law it may give, or
(b) approve, prohibit or require anything to which by any general
or special Act, the commission's jurisdiction extends.
Mandatory and restraining orders
73 (1) The commission may order and require a person to do immediately or by
a specified time and in the way ordered, so far as is not inconsistent with this
Act, the regulations or another Act, anything that the person is or may be
required or authorized to do under this Act or any other general or special
Act and to which the commission's jurisdiction extends.
(2) The commission may forbid and restrain the doing or continuing of
anything contrary to or which may be forbidden or restrained under any Act,
general or special, to which the commission's jurisdiction extends.
Inspections and depositions
74 For the purposes of this Act, the commission may
(a) enter on and inspect property, and
(b) require the taking of depositions inside or outside of British
Columbia.
Commission not bound by precedent
75 The commission must make its decision on the merits and justice of the
case, and is not bound to follow its own decisions.
Page 52 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 109: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/109.jpg)
Jurisdiction as to liquidators and receivers
76 (1) The fact that a liquidator, receiver, manager or other official of a public
utility, or other person engaged in the petroleum industry, or a person
seizing a public utility's property has been appointed by a court in British
Columbia, or is acting under the authority of a court, does not prevent the
exercise by the commission of any jurisdiction conferred by this Act.
(2) A liquidator, receiver, manager, official or person seizing must act in
accordance with this Act and the orders and directions of the commission,
whether the orders are general or particular.
(3) The liquidator or other person referred to in subsection (1), and any
person acting under that person, must obey the orders of the commission,
within its jurisdiction, and the commission may enforce its orders against the
person even though the person is appointed by or acts under the authority of
a court.
Power to extend time
77 If a work, act, matter or thing is, by order or decision of the commission,
required to be performed or completed within a specified time, the
commission may, if the circumstances of the case in its opinion so require,
extend the time so specified
(a) on notice and hearing, or
(b) in its discretion, on application, without notice to any person.
Evidence
78 (1) [Repealed 2004-45-169.]
(2) An inquiry that the commission considers necessary may be made by a
member or officer or by a person appointed by the commission to make the
inquiry, and the commission may act on that person's report.
(3) Each member, officer and person appointed has, for the purpose of the
inquiry, the powers conferred on the commission by section 74 of this Act
and section 34 (3) and (4) of the Administrative Tribunals Act.
(4) If a person is appointed to inquire and report on a matter, the
commission may order by whom, and in what proportion, the costs incurred
must be paid, and may set the amount of the costs.
Findings of fact conclusive
Page 53 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 110: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/110.jpg)
79 The determination of the commission on a question of fact in its jurisdiction,
or whether a person is or is not a party interested within the meaning of this
Act, is binding and conclusive on all persons and all courts.
Commission not bound by judicial acts
80 In determining a question of fact, the commission is not bound by the finding
or order of a court in a proceeding involving the determination of that fact,
and the finding or order is, before the commission, evidence only.
Pending litigation
81 The fact that a suit, prosecution or other proceeding in a court involving
questions of fact is pending does not deprive the commission of jurisdiction
to hear and determine the same questions of fact.
Power to inquire without application
82 (1) The commission
(a) may, on its own motion, and
(b) must, on the request of the Lieutenant Governor in Council,
inquire into, hear and determine a matter that under this Act it may inquire
into, hear or determine on application or complaint.
(2) For the purpose of subsection (1), the commission has the same powers
as are vested in it by this Act in respect of an application or complaint.
Action on complaints
83 If a complaint is made to the commission, the commission has powers to
determine whether a hearing or inquiry is to be had, and generally whether
any action on its part is or is not to be taken.
General powers not limited
84 The enumeration in this Act of a specific commission power or authority does
not exclude or limit other powers or authorities given to the commission.
Hearings to be held in certain cases
85 (1) Except in case of urgency, of which the commission is sole judge, the
commission must not, without a hearing, make an order involving an outlay,
loss or deprivation to a public utility.
(2) If an order is made in case of urgency without a hearing, on the
Page 54 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 111: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/111.jpg)
application of a person interested, the commission must as soon as
practicable hear and reconsider the matter and make any further order it
considers advisable.
Public hearing
86 If this Act requires that a hearing be held, it must be a public hearing
whenever, in the opinion of the commission or the Lieutenant Governor in
Council, a public hearing is in the public interest.
Repealed
86.1 [Repealed 2004-45-170.]
When oral hearings not required
86.2 (1) Despite any other provision of this Act, in any circumstance in which,
under this Act, a hearing may or must be held, the commission may conduct
a written hearing.
(2) The commission may make rules respecting the circumstances in which
and the process by which written hearings may be conducted and specifying
the form and content of materials to be provided for written hearings.
Recitals not required in orders
87 In making an order, the commission is not required to recite or show on the
face of the order the taking of any proceeding, the giving of any notice or the
existence of any circumstance necessary to give the commission jurisdiction.
Application of orders
88 (1) In making an order, rule or regulation, the commission may make it
apply to all cases, or to a particular case or class of cases, or to a particular
person.
(2) The commission may exempt a person from the operation of an order,
rule or regulation made under this Act for a time the commission considers
advisable.
(3) The commission may, on conditions it considers advisable, with the
advance approval of the Lieutenant Governor in Council, exempt a person,
equipment or facilities from the application of all or any of the provisions of
this Act or may limit or vary the application of this Act.
(4) The commission has no power under this section to make an order
Page 55 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 112: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/112.jpg)
respecting a person, or a person in respect of a matter, who has been
exempted under section 22.
Withdrawal of application
88.1 If an applicant withdraws all or part of an application or the parties advise
the commission that they have reached a settlement of all or part of an
application, the commission may order that the application or part of it is
dismissed.
Partial relief
89 On an application under this Act, the commission may make an order
granting the whole or part of the relief applied for or may grant further or
other relief, as the commission considers advisable.
Commencement of orders
90 (1) In an order or regulation, the commission may direct that the order or
regulation or part of it comes into operation
(a) at a future time,
(b) on the happening of an event specified in the order or
regulation, or
(c) on the performance, to the satisfaction of the commission, by a
person named by it of a term imposed by the order.
(2) The commission may, in the first instance, make an interim order, and
reserve further direction for an adjourned hearing or further application.
Orders without notice
91 (1) If the special circumstance of a case so requires, the commission may,
without notice, make an interim order authorizing, requiring or forbidding
anything to be done that the commission is empowered to authorize, require
or forbid on application, notice or hearing.
(2) The commission must not make an interim order under subsection (1) for
a longer time than it considers necessary for a hearing and decision.
(3) A person interested may, before final decision, apply to modify or set
aside an interim order made without notice.
Directions
92 If, in the exercise of a commission power under an Act, the commission
Page 56 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 113: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/113.jpg)
directs that a structure, appliance, equipment or works be provided, constructed,
reconstructed, removed, altered, installed, operated, used or maintained, the
commission may, except as otherwise provided in the Act conferring the
power, order
(a) by what person interested at or within what time,
(b) at whose cost and expense,
(c) on what terms including payment of compensation, and
(d) under what supervision,
the structure, appliance, equipment or works must be carried out.
Repealed
93-94 [Repealed 2004-45-170.]
Lien on land
95 (1) If the commission makes an order for payment of money, costs or a
penalty, the commission may register a copy of the order certified by the
commission's secretary in a land title office.
(2) On registration in a land title office, an order is a lien and charge on all
the land of the person ordered to make the payment that is in the land title
district in which the order is registered, to the same extent and with the
same effect and realizable in the same way as a judgment of the Supreme
Court under the Court Order Enforcement Act.
Substitute to carry out orders
96 (1) If a person defaults in doing anything directed by an order of the
commission under this Act,
(a) the commission may authorize a person it considers suitable to
do the thing, and
(b) the person authorized may do the thing authorized and may
recover from the person in default the expense incurred in doing
the thing, as money paid for and at the request of that person.
(2) The certificate of the commission of the amount expended is conclusive
evidence of the amount of the expense.
Entry, seizure and management
97 (1) The commission may take the steps and employ the persons it considers
Page 57 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 114: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/114.jpg)
necessary to enforce an order made by it, and, for that purpose, may forcibly or
otherwise enter on, seize and take possession of the whole or part of the
business and the property of a public utility affected by the order, together
with the records, offices and facilities of the utility.
(2) The commission may, until the order has been enforced or until the
Lieutenant Governor in Council otherwise orders, assume, take over and
continue the management of the business and property of the utility in the
interest of its shareholders, creditors and the public.
(3) While the commission continues to manage or direct the management of
the utility, the commission may exercise, for the business and property, the
powers, duties, rights and functions of the directors, officers or managers of
the utility in all respects, including the employment and dismissal of officers
or employees and the employment of others.
(4) On the commission taking possession of the business and property of the
utility, each officer and employee of the utility must obey the lawful orders
and instructions of the commission for that business and property, and of
any person placed by the commission in authority in the management of the
utility or a department of its undertaking or service.
(5) On taking possession of the business and property of a public utility, the
commission may determine, receive or pay out all money due to or owing by
the utility, and give cheques and receipts for money to the same extent and
to the same effect as the utility or its officers or employees could do.
(6) The costs incurred by the commission under this section are in the
discretion of the commission, and the commission may order by whom and
in what amount or proportion costs are to be paid.
Defaulting utility may be dissolved
98 (1) If a public utility incorporated under an Act of the Legislature fails to
comply with a commission order, and the commission believes that no
effective means exist to compel the utility to comply, the commission, in its
discretion, may transmit to the Attorney General a certificate, signed by its
chair and secretary, setting out the nature of the order and the default of the
public utility.
(2) Ten days after publication in the Gazette of a notice of receipt of the
certificate by the Attorney General, the Lieutenant Governor in Council may,
by order, dissolve the public utility.
Page 58 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 115: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/115.jpg)
Part 7 — Decisions and Appeals
Reconsideration by commission
99 The commission may reconsider, vary or rescind a decision, order, rule or
regulation made by it, and may rehear an application before deciding it.
Requirement for hearing
100 If a hearing is held or required under this Act before a rule or regulation is
made, the rule or regulation must not be altered, suspended or revoked
without a hearing.
Appeal to Court of Appeal
101 (1) An appeal lies from a decision or order of the commission to the Court of
Appeal with leave of a justice of that court.
(2) The party appealing must give notice of the application for leave to
appeal, stating the grounds of appeal, to the commission, to the Attorney
General and to any party adverse in interest, at least 2 clear days before the
hearing of the application.
(3) If leave is granted, within 15 days from the granting, the appellant must
give notice of appeal to the commission, to the Attorney General, and to any
party adverse in interest.
(4) The commission and the Attorney General may be heard by counsel on
the appeal.
(5) On the determination of the questions involved in the appeal, the Court
of Appeal must certify its opinion to the commission, and an order of the
commission must conform to that opinion.
No automatic stay of proceedings while matter appealed
102 (1) An appeal to the Court of Appeal does not of itself stay or suspend the
operation of the decision, order, rule or regulation appealed from, but the
Court of Appeal may grant a suspension, in whole or in part, until the appeal
is decided, on the terms the court considers advisable.
(2) The commission may, in its discretion, suspend the operation of its
decision, order, rule or regulation from which an appeal is taken until the
decision of the Court of Appeal is given.
Page 59 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 116: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/116.jpg)
Costs of appeal
103 (1) Payment of the costs incurred for an application or appeal to the Court of
Appeal may be enforced in the same way as payment of costs ordered by the
commission.
(2) Neither the commission nor an officer, employee or agent of the
commission is liable for costs in respect of an application or appeal referred
to in subsection (1).
Case stated by commission
104 (1) The commission may, on its own motion or on the application of a party
who gives the security the commission directs, and must, on the request of
the Attorney General, state a case in writing for the opinion of the Court of
Appeal on a question that, in the opinion of the commission or of the
Attorney General, is a question of law.
(2) The Court of Appeal must hear and determine all questions of law arising
on the stated case and must remit the matter to the commission with the
court's opinion.
(3) The court's opinion is binding on the commission and on all parties.
Jurisdiction of commission exclusive
105 (1) The commission has exclusive jurisdiction in all cases and for all matters
in which jurisdiction is conferred on it by this or any other Act.
(2) Unless otherwise provided in this Act, an order, decision or proceeding of
the commission must not be questioned, reviewed or restrained by or on an
application for judicial review or other process or proceeding in any court.
Part 8 — Offences and Penalties
Offences
106 (1) The following persons commit an offence:
(a) a person who fails or refuses to obey an order of the
commission made under this Act;
(b) a person who does, causes or permits to be done an act,
matter or thing contrary to this Act or omits to do an act, matter or
thing required to be done by this Act;
Page 60 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 117: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/117.jpg)
(c) a public utility
(i) that fails or refuses to prepare and provide to the
commission in the time, manner and form, and with the
particulars and verification required under this Act, an
information return, the answer to a question submitted by
the commission or information required by the commission
under this Act,
(ii) that willfully or negligently makes a return or provides
information to the commission that is false in any particular,
(iii) that gives, or an officer of which gives, to an officer,
agent, manager or employee of the utility a direction,
instruction or request to do or refrain from doing an act
referred to in paragraph (d) (i) to (vii) and in respect of
which the officer, agent, manager or employee is convicted
under paragraph (d) (i) to (vii), or
(iv) an officer, agent, manager or employee of which is
convicted of an offence under paragraph (d) (viii);
(d) an officer, agent, manager or employee of a public utility
(i) who fails or refuses to complete and provide to the
commission a report or form of return required under this
Act,
(ii) who fails or refuses to answer a question contained in a
report or form of return required under this Act,
(iii) who willfully gives a false answer to a question
contained in a report or form of return required under this
Act,
(iv) who evades a question or gives an evasive answer to a
question contained in a report or form of return required
under this Act, if the person has the means to ascertain the
facts,
(v) who, after proper demand under this Act, fails or refuses
to exhibit to the commission or a person authorized by it an
account, record or memorandum of the public utility that is in
the person's possession or under the person's control,
(vi) who fails to properly use and keep the system of
accounting of the public utility specified by the commission
under this Act,
(vii) who refuses to do any act or thing in that system of
Page 61 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 118: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/118.jpg)
accounting when directed by the commission or its
representative,
(viii) on whom the commission serves notice directing the
person to provide to the commission information or a return
that the utility may be required to provide under this Act and
who willfully refuses or fails to provide the information or
return to the best of the person's knowledge, or means of
knowledge, in the manner and time directed by the
commission, or
(ix) who knowingly registers or causes to be registered on
the books of the public utility any issue or transfer of shares
that has been made contrary to section 54 (5), (7) or (8);
(e) the president, and each vice president, director, managing
director, superintendent and manager of a public utility that fails or
refuses to obey an order of the commission made under this Act;
(f) the mayor and each councillor or member of the ruling body of
a municipality that fails or refuses to obey an order of the
commission made under this Act;
(g) [Repealed 2003-46-15.]
(h) a person who obstructs or interferes with a commissioner,
officer or person in the exercise of rights conferred or duties
imposed under this Act;
(i) a person who knowingly solicits, accepts or receives, directly or
indirectly, a rebate, concession or discrimination for service of a
public utility, if the service is provided or received in violation of
this Act;
(j) except so far as the person's public duty requires the person to
report on or take official action, an officer or employee of the
commission, or person having access to or knowledge of a return
made to the commission or of information procured or evidence
taken under this Act, other than a public inquiry or public hearing,
who, without first obtaining the authority of the commission,
publishes or makes known information, having obtained or knowing
it to have been derived from the return, information or evidence;
(k) a person who applies to a public utility to register on its books
any issue or transfer of shares that has been made contrary to
section 54 (5), (7) or (8).
Page 62 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 119: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/119.jpg)
(2) Subsection (1) (e) and (f) does not apply if the person proves
(a) that, according to the person's position and authority, the
person took all necessary and proper means in the person's power
to obey and carry out, and to procure obedience to and the
carrying out of the order, and
(b) that the person was not at fault for the failure or refusal.
(3) Subsection (1) (h) does not apply if the commissioner, officer or person
does not, on request at the time, produce a certificate of his or her
appointment or authority.
(4) A person convicted of an offence under this section is liable to a penalty
not greater than $10 000.
(5) If this Act makes anything an offence, each day the offence continues
constitutes a separate offence.
(6) Nothing in or done under this section affects the liability of a public utility
otherwise existing or prejudices enforcement of an order of the commission
in any way otherwise available.
Restraining orders
107 (1) If a person, to or in respect of whom
(a) [Repealed 2003-46-16.]
(b) a certificate of public convenience and necessity,
(c) an order under section 22, 53 or 54 (10), or
(d) an approval given under section 50 or 54 (5), (7) or (8),
is issued, contravenes a condition or requirement of the certificate, order or
approval, the contravention may be restrained in a proceeding brought by
the minister in the Supreme Court.
(2) [Repealed 2003-46-16.]
Revocation of certificates
108 If a person contravenes a condition or requirement of an order made under
section 22,
(a) the Lieutenant Governor in Council may revoke
(i) the energy project certificate or energy operation
certificate in respect of which the contravention occurred,
and
Page 63 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 120: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/120.jpg)
(ii) any approval, licence or permit given or issued, in
association with the certificate, or
(b) the minister responsible for the administration of the Hydro and Power Authority Act may revoke the order.
Remedies not mutually exclusive
109 If a person contravenes
(a) [Repealed 2003-46-18.]
(b) a condition or requirement of an order made under section 22,
53 or 54 (10),
(c) the conditions of an approval given under section 50 or 54 (5),
(7) or (8), or
(d) a condition or requirement of a certificate of public convenience
and necessity,
the penalties for the contravention provided for in section 106, the remedies
for the contravention provided for in section 107 and, if applicable, the
remedies provided for in section 108 are not mutually exclusive, and any or
all of them may be applied in the one case.
Part 9 — General
Powers of commission in relation to other Acts
110 The powers given to the commission by this Act apply
(a) even though the subject matter about which the powers are
exercisable is the subject matter of an agreement or another Act,
(b) in respect of service and rates, whether fixed by or the subject
of an agreement or other Act, or otherwise, and
(c) if the service or rates are governed by an agreement, whether
the agreement is incorporated in, or ratified, or made binding by a
general or special Act, or otherwise.
Substantial compliance
111 Substantial compliance with this Act is sufficient to give effect to the orders,
rules, regulations and acts of the commission, and they must not be declared
inoperative, illegal or void for want of form or an error or omission of a
Page 64 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 121: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/121.jpg)
technical or clerical nature.
Vicarious liability
112 In construing and enforcing this Act, or a rule, regulation, order or direction
of the commission, an act, omission or failure of an officer, agent or other
person acting for or employed by a public utility, if within the scope of the
person's employment, is deemed in every case to be the act, omission or
failure of the utility.
Public utilities may apply
113 A person who is subject to regulation under this Act may make application or
complaint to the commission about a matter affecting a public utility, as if
made by another party interested.
Municipalities may apply
114 (1) In this section, "municipality" includes a regional district.
(2) If a municipality believes that the interests of the public in the
municipality or a part of it are sufficiently concerned, the municipality may,
by resolution, become an applicant, complainant or intervenant in a matter
within the commission's jurisdiction.
(3) The municipality may, for subsection (2), take a proceeding or incur
expense necessary
(a) to submit the matter to the commission,
(b) to oppose an application or complaint before the commission,
or
(c) if necessary, to become a party to a proceeding or appeal under
this Act.
Certified documents as evidence
115 (1) A copy of a rule, regulation, order or other document in the commission
secretary's custody, purporting to be certified by the secretary to be a true
copy, is evidence of the document without proof of the signature.
(2) A certificate purporting to be signed by the commission secretary stating
that no rule, regulation or order on a specified matter has been made by the
commission, is evidence of the fact stated without proof of the signature.
Class representation
Page 65 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 122: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/122.jpg)
116 (1) With the approval of the Attorney General, the commission may appoint
counsel to represent a class of persons interested in a matter for the purpose
of instituting or attending on an application or hearing before the commission
or another tribunal or authority.
(2) The commission may fix the costs of the counsel and may order by
whom and in what amount or proportion they be paid.
Costs of commission
117 (1) In this section, "costs of the commission" includes costs incurred by
the commission for the services of consultants and experts engaged in
connection with the proceeding.
(2) The commission may order that the costs of the commission incidental to
a proceeding before it are to be paid by one or more participants in the
proceeding in such amounts and proportions as the commission may
determine.
Participant costs
118 (1) The commission may order a participant in a proceeding before the
commission to pay all or part of the costs of another participant in the
proceeding.
(2) If the commission considers it to be in the public interest, the
commission may pay all or part of the costs of participants in proceedings
before the commission that were commenced on or after April 1, 1993 or
that are commenced after June 18, 1993.
(3) Amounts paid for costs under subsection (2) must not exceed the limits
prescribed for the purposes of this section.
Tariff of fees
119 With the advance approval of the Lieutenant Governor in Council, the
commission may prescribe a tariff of fees for a matter within the
commission's jurisdiction.
No waiver of rights
120 (1) Nothing in this Act releases or waives a right of action by the commission
or a person for a right, penalty or forfeiture that arises under a law of British
Columbia.
(2) No penalty enforceable under this Act is a bar to or affects recovery for a
Page 66 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 123: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/123.jpg)
right, or affects or bars a proceeding against or prosecution of a public
utility, its directors, officers, agents or employees.
Relationship with Local Government Act
121 (1) Nothing in or done under the Community Charter or the Local Government Act
(a) supersedes or impairs a power conferred on the commission or
an authorization granted to a public utility, or
(b) relieves a person of an obligation imposed under this Act or the
Gas Utility Act.
(2) In this section, "authorization" means
(a) a certificate of public convenience and necessity issued under
section 46,
(b) an exemption from the application of section 45 granted, with
the advance approval of the Lieutenant Governor in Council, by the
commission under section 88, and
(c) an exemption from section 45 granted under section 22, only if
the public utility meets the conditions prescribed by the Lieutenant
Governor in Council.
(3) For the purposes of subsection (2) (c), the Lieutenant Governor in
Council may prescribe different conditions for different public utilities or
categories of public utilities.
Repealed
122 [Repealed 2004-45-172.]
Service of notice
123 (1) A notice that the commission is empowered or required to give to a
person under this Act must be in writing and may be served either personally
or by mailing it to the person's address.
(2) If a notice is mailed, service of the notice is deemed to be effected at the
time at which the letter containing the notice, properly addressed, postage
prepaid and mailed, would be delivered in the ordinary course of post.
Reasons to be given
124 (1) If an application to the commission is opposed, the commission must
Page 67 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 124: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/124.jpg)
prepare written reasons for its decision.
(2) If an application is unopposed, the commission may, and at the request
of the applicant must, prepare written reasons for its decision.
(3) Written reasons must be made available by the secretary to any person
on payment of the fee set by the commission.
(4) [Repealed 2003-46-20.]
Regulations
125 (1) The Lieutenant Governor in Council may make regulations as referred to
in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may,
for the purpose of recovering the expenses arising out of the administration
of this Act in a fiscal year, make regulations as follows:
(a) setting, or authorizing the commission to set, by order of the
commission, and to collect fees, levies or other charges from
(i) public utilities, a class of public utility or a particular
public utility, and
(ii) other persons to whom a provision of this Act applies or
a class of those persons;
(b) setting, or authorizing the commission to set, the fees, levies or
other charges payable by the members of the different classes
referred to in paragraph (a) in different amounts;
(c) exempting, or authorizing the commission to exempt, a public
utility or other person, or a class of either of them, from the
payment of a fee, levy or other charge;
(d) authorizing the commission to retain all or part of any fees,
levies or other charges collected by the commission under a
regulation;
(e) requiring the commission to set a rate for the purposes of
section 28 (2.1) and prescribing requirements for the purposes of
that section.
(3) The commission may make regulations on a matter for which it is
empowered by this Act to make regulations.
Minister's regulations
125.1 (1) In this section, "minister" means the minister responsible for the
Page 68 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 125: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/125.jpg)
administration of the Hydro and Power Authority Act.
(2)-(3) [Repealed 2010-22-72.]
(4) The minister may make regulations as follows:
(a) [Repealed 2010-22-72.]
(b) respecting exemptions under section 22;
(c) [Repealed 2010-22-72.]
(d) [Repealed 2010-22-72.]
(e) for the purposes of sections 44.1 and 44.2,
(i) prescribing rules for determining whether a demand-side
measure, or a class of demand-side measures, is adequate,
cost-effective or both,
(ii) declaring a demand-side measure, or a class of demand-
side measures, to be cost effective and necessary for
adequacy, and
(iii) prescribing rules or factors a public utility must use in
making the estimate referred to in section 44.1 (2) (a);
(iv) [Repealed 2010-22-72.]
(f) [Repealed 2010-22-72.]
(g) prescribing factors and guidelines for the purposes of section
58 (2.1) (b), including, without limitation, factors and guidelines to
encourage
(i) energy conservation or efficiency,
(ii) the use of energy during periods of lower demand,
(iii) the development and use of energy from clean or
renewable resources, or
(iv) the reduction of the energy demand a public utility must
serve;
(h) defining a term or phrase used in section 58.1 and not defined
in this Act;
(i) identifying facts that must be used in interpreting the definition
in section 58.1;
(j)-(n) [Repealed 2010-22-72.]
(o) prescribing standard-making bodies for the purposes of section
125.2 (1) and matters for the purposes of section 125.2 (3) (d);
Page 69 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 126: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/126.jpg)
(p) prescribing owners, operators, direct users, generators and
distributors, or classes of any of them, for the purposes of section
125.2 (8).
(5) In making a regulation under this section, the minister may
(a) make regulations of specific or general application, and
(b) make different regulations for different persons, places, things,
measures, transactions or activities.
Adoption of reliability standards, rules or codes
125.2 (1) In this section:
"reliability standard" means a reliability standard, rule or code
established by a standard-making body for the purpose of being a
mandatory reliability standard for planning and operating the North
American bulk power system, and includes any substantial change to any
of those standards, rules or codes;
"standard-making body" means
(a) the North American Electric Reliability Corporation,
(b) the Western Electricity Coordinating Council, and
(c) a prescribed standard-making body.
(2) For greater certainty, the commission has exclusive jurisdiction to
determine whether a reliability standard is in the public interest and should
be adopted in British Columbia.
(3) The authority must review each reliability standard and provide to the
commission, in accordance with the regulations, a report assessing
(a) any adverse impact of the reliability standard on the reliability
of electricity transmission in British Columbia if the reliability
standard were adopted under subsection (6),
(b) the suitability of the reliability standard for British Columbia,
(c) the potential cost of the reliability standard if it were adopted
under subsection (6), and
(d) any other matter prescribed by regulation or identified by order
of the commission for the purposes of this section.
(4) The commission may make an order for the purposes of subsection (3)
(d).
Page 70 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 127: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/127.jpg)
(5) If the commission receives a report under subsection (3), the
commission must
(a) make the report available to the public in a reasonable manner,
which may include by electronic means, and for a reasonable
period of time, and
(b) consider any comments the commission receives in reply to the
publication referred to in paragraph (a).
(6) After complying with subsection (5), the commission, subject to
subsection (7), must adopt the reliability standards addressed in the report if
the commission considers that the reliability standards are required to
maintain or achieve consistency in British Columbia with other jurisdictions
that have adopted the reliability standards.
(7) The commission is not required to adopt a reliability standard under
subsection (6) if the commission determines, after a hearing, that the
reliability standard is not in the public interest.
(8) A reliability standard adopted under subsection (6) applies to every
(a) prescribed owner, operator and direct user of the bulk power
system, and
(b) prescribed generator and distributor of electricity.
(9) Subsection (8) applies to a person prescribed for the purposes of that
subsection despite any exemption issued to the person under section 22 or
88 (3).
(10) The commission may make orders providing for the administration of
adopted reliability standards.
(11) The commission, on its own motion or on complaint, may
(a) rescind an adoption made under subsection (6), or
(b) adopt a reliability standard previously rejected under
subsection (7)
if the commission determines, after a hearing, that the rescission or adoption
is in the public interest.
(12) The commission, without the approval of the minister responsible for
the administration of the Hydro and Power Authority Act, may not set a
standard or rule under section 26 of this Act with respect to a matter
addressed by a reliability standard assessed in a report submitted to the
commission under subsection (3) of this section.
Page 71 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 128: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/128.jpg)
Intent of Legislature
126 If a provision of this Act is held to be beyond the powers of British Columbia,
that provision must be severed from the remainder of the Act, and the
remaining provisions of the Act have the same effect as if they had been
originally enacted as a separate enactment and as the only provisions of this
Act.
Copyright (c) Queen's Printer, Victoria, British Columbia, Canada
Page 72 of 72Utilities Commission Act
07/06/2011http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96473_01
![Page 129: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/129.jpg)
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, B.C. V6Z 2N3 CANADA
web site: http://www.bcuc.com
TELEPHONE: (604) 660‐4700 BC TOLL FREE: 1‐800‐663‐1385 FACSIMILE: (604) 660‐1102
…/2
BRIT ISH COLUMBIA
UTIL IT IES COMMISSION ORDER NUMBER G‐194‐08
IN THE MATTER OF
the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. and Terasen Gas (Whistler) Inc.
2008 Resource Plan
BEFORE: A.W.K. Anderson, Commissioner A.A. Rhodes, Commissioner December 15, 2008
O R D E R
WHEREAS: A. On June 27, 2008, Terasen Gas Inc., Terasen Gas (Vancouver Island) Inc. and Terasen Gas (Whistler) Inc.
(collectively “Terasen” or “the Companies”) jointly filed a consolidated 2008 Resource Plan (“Resource Plan”) for acceptance by the British Columbia Utilities Commission (“Commission”) in accordance with Section 44.1 of the Utilities Commission Act; and
B. On May 28, 2008, Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. (collectively “TGI and TGVI”) filed
an Energy Efficiency and Conservation Programs Application (“EEC Application”); and
C. The Resource Plan includes five‐year capital plans and statements of facilities expansion, although the
Companies note that they are not requesting approval of these capital plans; and
D. By Order G‐120‐08 the Commission established a written proceeding to review the Resource Plan; and
E. The Rental Owners and Managers Society of BC, British Columbia Hydro and Power Authority (“BC Hydro”), the Ministry of Energy Mines and Petroleum Resources (“MEMPR”), and the British Columbia Old Age Pensioners’ Organization et. al. (“BCOAPO”) registered as Intervenors in the proceeding; and
![Page 130: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/130.jpg)
2
…/3
BRIT ISH COLUMBIA
UTIL IT IES COMMISSION ORDER NUMBER G‐194‐08
F. In a letter dated September 9, 2008, BC Hydro submitted that the fuel switching expenditures proposed by TGI and TGVI in the EEC Application are not in the public interest and requested Commission determinations that issues related to the EEC Application would be dealt with exclusively in the EEC Application and that a decision on the Resource Plan would be withheld until the Commission had properly considered the EEC Application; and
G. In a letter dated September 11, 2008, BCOAPO stated that it shared the concerns of BC Hydro and requested
that the regulatory process for the Resource Plan be delayed until after the Commission’s decision with respect to the EEC Application was released; and
H. In a letter dated September 12, 2008, Terasen submitted that the Companies supported a Commission
direction confirming that EEC‐related issues, including the issue of fuel switching, would be dealt with exclusively in the EEC proceeding. The Companies further submitted that such a direction would be adequate to ensure the EEC Application and the Resource Plan would be reviewed efficiently and fairly and that there was no basis to delay the regulatory timetable established for the Resource Plan; and
I. By letter L‐45‐08 dated September 26, 2008, the Commission directed that all issues related to the EEC
Application, including fuel switching, would be dealt with exclusively in the EEC proceeding and declined to make any adjustment to the regulatory timetable for the 2008 Resource Plan; and
J. On September 30, 2008, Terasen responded to Information Requests from the Commission, BC Hydro and
BCOAPO; and
K. On October 7, 2008, Terasen filed its final submissions regarding the Resource Plan; and
L. BC Hydro and BCOAPO filed their final submissions on October 14, 2008 and October 16, 2008 respectively;
and
M. On October 24, 2008 Terasen filed its reply submissions; and
N. The Commission Panel determines that acceptance of the 2008 Resource Plan for filing is in the public
interest, subject to the comments in the Reasons for Decision attached as Appendix A to this Order.
![Page 131: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/131.jpg)
3
Orders/G‐194‐08_TGVI‐TGW‐2008 Resource Plan‐Reasons for Decisions
BRIT ISH COLUMBIA
UTIL IT IES COMMISSION ORDER NUMBER G‐194‐08
NOW THEREFORE the Commission Panel orders that the Resource Plan is accepted for filing by the Commission subject to the comments in the Reasons for Decision attached as Appendix A to this Order. DATED at the City of Vancouver, in the Province of British Columbia, this 15th day of December 2008. BY ORDER Original signed by: A.A. Rhodes Commissioner Attachment
![Page 132: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/132.jpg)
APPENDIX A
to Order G‐194‐08 Page 1 of 3
Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. and Terasen Gas (Whistler) Inc.
2008 Resource Plan
REASONS FOR DECISION
On June 27, 2008, Terasen Gas Inc., Terasen Gas (Vancouver Island) Inc., and Terasen Gas (Whistler) Inc. (collectively “Terasen”) filed their consolidated 2008 Resource Plan (“Resource Plan”) with the British Columbia Utilities Commission (the “Commission”). Terasen’s Resource Plan includes five‐year capital plans and statements of facilities expansion, but does not include a request for approval of these capital plans. Rather, Terasen will file separate applications for Certificates of Public Convenience and Necessity, if required, for any of those projects consistent with the Commission’s guidelines. The Action Plan identifies seven action items (Exhibit B‐1, section 9). Only one of those action items, “Implement the new EEC program and continue research and planning for future EEC programming”, requires significant new funding, and that funding is the subject of a separate application as discussed below. Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. had previously filed, on May 28, 2008, their Energy Efficiency and Conservation Programs Application (the “EEC Application”). On June 20, 2008 by Order G‐102‐08 the Commission established a preliminary regulatory timetable to review the EEC Application. Subsequently, on September 18, 2008, by Order G‐130‐08, the Commission established a written hearing process (“EEC Proceeding”) and regulatory timetable to review the EEC Application. Order G‐120‐08 established a written hearing and regulatory timetable to review the Resource Plan. The Rental Owners and Managers Society of BC, British Columbia Hydro and Power Authority (“BC Hydro”), the Ministry of Energy Mines and Petroleum Resources, and the British Columbia Old Age Pensioners’ Organization et. al. (“BCOAPO”) registered as Intervenors in the proceeding. On September 26, 2008, the Commission issued letter L‐45‐08 which stated that “…because the issues in the Resource Plan and the EEC Application are sufficiently distinct, it could approve the Resource Plan, except for EEC issues, subject to and in advance of a decision with respect to the EEC Application.” (Exhibit A‐3, p. 2) The Commission Panel therefore directed that all issues related to the EEC Application, including fuel switching, are to be dealt with exclusively in the EEC proceeding, and declined any adjustment to the regulatory timetable for the 2008 Resource Plan. Consistent with the timetable established by Order G‐120‐08, Terasen filed responses to information requests from the Commission, BC Hydro and BCOAPO on September 30, 2008. Terasen filed its final submission on October 7, 2008. Intervenors, specifically BCOAPO and BC Hydro, filed their final submissions on October 16, 2008 and October 14, 2008, respectively. Terasen filed its reply submission on October 24, 2008. BC Hydro’s submission notes that it had filed intervenor evidence in the EEC proceeding supporting its view that the portion of the EEC expenditure targeting fuel switching from electricity to natural gas is not in the public interest at this time. BC Hydro also noted Commission letter L‐45‐08, which determined that Terasen’s asserted regional approach to Greenhouse Gas (“GHG”) emissions would be dealt with exclusively in the EEC proceeding. BC Hydro took no position on the remainder of the Resource Plan.
![Page 133: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/133.jpg)
APPENDIX A
to Order G‐194‐08 Page 2 of 3
BCOAPO noted that Terasen’s Resource Plan does not seek approval of any of the specific actions described in the Application. By way of comment BCOAPO suggested that it is “…inadvisable for a fossil fuel provider to file a long‐term planning tool that ignores we now live in a country where aggressive conservation programs are or soon will be the norm and where non‐GHG emitting fuel sources are preferred going forward.” BCOAPO stated that it shares BC Hydro’s concerns over Terasen’s reliance on a solely regional analysis when evaluating GHG emissions. BCOAPO further submitted that since Terasen filed its Resource Plan in June 2008, global economic circumstances have changed to an extent sufficient to require that the growth scenarios presented in the Resource Plan be reconsidered. BCOAPO submitted that, as opposed to the Reference Case presented in the Terasen Resource Plan, its “Low Growth” scenario is now a more appropriate reference case. In addition, BCOAPO submitted that Terasen’s reference case forecast projects an average annual growth rate of 0.7 percent due largely to increased population and economic growth, but that in response to information requests, Terasen indicated it has assumed population growth of 1.03 percent and customer growth that is 25 percent of population growth, which implies that population growth is responsible for an average annual increase of 0.258 percent. BCOAPO submitted that “…this discrepancy, combined with a likely low economic growth scenario and increased conservation efforts are cause to revisit the forecast projections and methodology.” (BCOAPO Final Submission, p. 5) BCOAPO also expressed concerns about the ability of the regional gas transmission systems in the Pacific Northwest to meet peak day demand, and commented that the Regional Infrastructure Conclusions and Recommendations do not appear to address the issue, should it arise before “the longer term”. Finally, BCOAPO expressed concerns about Terasen’s Design Day Demand Methodology and, in particular, about the R‐squared statistics reported for each of the separate regression equations and Terasen’s multicollinear equation. BCOAPO submits that Terasen appears to have submitted “unadjusted R‐squares” and requested that Terasen submit the adjusted R‐squared statistics. BCOAPO also submitted that Terasen should be required to provide the variances of the parameter estimates and review the statistical methodology prior to filing its next resource plans. In its Reply Submission, Terasen stated that the issues raised by BC Hydro are matters that must be addressed in the context of Terasen’s EEC Application, and will be addressed there. Regarding the BCOAPO comments, Terasen submitted in its Reply Submissions that it has examined GHG emissions from a provincial policy perspective as well as a regional perspective and that both of these perspectives are consistent and necessary. Terasen further argued that it is not a foregone conclusion that the low growth scenario for forecast gas demand is the most appropriate over the long term, and stated that it will continue to review and update its long‐range forecast as new information becomes available “…primarily within the timeframes of its annual planning cycles.” Terasen further submitted that Action Plan items within the Resource Plan address the issue of regional infrastructure capacity and identify specific solutions to alleviate the problem. Finally, Terasen submitted that it did use adjusted R‐squared values, and that its current methodology is a reasonable way to estimate future design day demand.
![Page 134: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/134.jpg)
APPENDIX A
to Order G‐194‐08 Page 2 of 3
Commission Panel Conclusions Since Terasen is not requesting approval of any specific actions in its resource plan, it needs only to be accepted under section 44. 1 of the amended Utilities Commission Act RSBC 1996 c.473 (“UCA”). Section 44.1(2)(b) establishes that a long‐term resource plan must include “(b) a plan of how the public utility intends to reduce the demand referred to in paragraph (a) by taking cost‐effective demand‐side measures.” The Resource Plan addresses that requirement of the UCA in section 4, in large measure by reference to the EEC Application, which has been ordered to be heard separately. With regard to the issues related to fuel switching and GHG emissions, both these issues have been made part of the EEC Application and will be considered then. The forecasting issue raised by BCOAPO is not significant now because there are no actions required by the reference case forecast presented by Terasen, and a forecast lower than the reference case implies more time before system reinforcements are required. Finally Terasen’s design day forecast methodology has not been demonstrated to be incorrect in this proceeding nor has a superior method been proposed and, consequently, the Commission Panel is not prepared to direct any changes to it. However, if BCOAPO continues to have concerns about its accuracy, the Commission Panel is of the view that intervenors should be allowed the opportunity to raise the issue in the next Resource Plan filing or any other application where it is a factor, and would encourage them to submit evidence advocating an alternative approach they feel would be more appropriate.
Section 44.1(7) of the UCA states that the Commission may accept or reject a part of the public utility’s plan. Because the EEC issues are to be dealt with in the proceeding to review Terasen’s EEC Application, the Commission Panel accepts the Resource Plan for filing, except for Section 4 and those other parts of the Resource Plan that relate to the issue of Energy Efficiency and Conservation, including fuel switching and GHG emissions. A determination on those remaining issues will be made following the EEC Proceeding.
![Page 135: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/135.jpg)
IN THE MATTER OF
TERASEN GAS INC. TERASEN GAS (VANCOUVER ISLAND) INC.
AND
ENERGY EFFICIENCY AND CONSERVATION APPLICATION
DECISION
April 16, 2009
Before:
A.W.K. Anderson, Commissioner A.A. Rhodes, Commissioner
![Page 136: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/136.jpg)
TABLE OF CONTENTS
Page No.
1.0 BACKGROUND AND REGULATORY PROCESS 1
1.1 The Application 1
1.2 Legal and Regulatory 3
1.2.1 The Utilities Commission Act 3
1.2.2 The Long Term Resource Plan 4
1.2.3 ‘Cost effectiveness’ and the Demand Side Measures (DSM) Regulation 4
1.2.4 BC Government’s Energy Objectives 5
2.0 TERASEN’S PROPOSED EEC EXPENDITURES 6
2.1 Residential and Commercial Energy Efficiency 7
2.1.1 Residential Energy Efficiency 8
2.1.1.1 New Construction 9
2.1.1.2 Retrofit 9
2.1.1.3 Commercial Energy Efficiency 10
2.1.1.4 New Construction 11
2.1.2.5 Retrofit 12
2.2 Residential Fuel Switching 14
2.3 Conservation Education and Outreach 18
2.4 Joint Initiatives, Trade Relations, 2009 CPR, and Innovative Technologies, NGV and Measurement 21
2.4.1 Joint Initiatives 21
2.4.1.1 Audits 22
2.4.1.2 Affordable Housing 22
2.4.1.3 Labeling 22
2.4.1.4 Community Action 22
2.4.2 Trade Relations 24
2.4.3 Innovative Technologies, NGV and Measurement 25
![Page 137: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/137.jpg)
TABLE OF CONTENTS
Page No.
2.5 Conservation Potential Review Update 27
2.6 The Industrial Sector 28
3.0 ASSESSMENT CRITERIA AND ACCOUNTABILITY 31
3.1 Portfolio Approach 31
3.2 Free Riders 35
3.3 Attribution to Regulatory Changes 37
3.4 Carbon Pricing 40
3.5 Accountability Mechanisms 41
4.0 CAPITALISATION OF INCREMENTAL EEC EXPENDITURES 43
5.0 AMORTISATION OF EEC EXPENDITURES 45
ORDER NO. G‐36‐09
APPENDIX 1 – LIST OF EXHIBITS
![Page 138: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/138.jpg)
1.0 BACKGROUND AND REGULATORY PROCESS
1.1 The Application
On May 28, 2008 Terasen Gas Inc. (“TGI”) and Terasen Gas (Vancouver Island) Inc. (“TGVI”)
(collectively “Terasen”) filed its Energy Efficiency and Conservation (“EEC”) Programs Application
(“Application”) with the British Columbia Utilities Commission (“the Commission”).
In the Application, Terasen requested an order or orders approving the following:
• Increases of EEC expenditures in the period 2008‐2010 to $46.944 million for TGI and $9.667 million for TGVI, a combined total of $56.6 million;
• Capitalisation of incremental EEC expenditures as a regulatory asset deferral account on an after tax basis and amortisation of the account over 20 years;
• An increase in the amortisation period to 20 years for incentive amounts that are added to deferral accounts for 2008 and 2009 as part of the 2008‐2009 extension of the 2004‐2007 TGI PBR Settlement Agreement (“TGI PBR Extended Settlement”) approved by Order G‐33‐07 and the 2008‐2009 extension of the 2006‐2007 TGVI Revenue Requirements Settlement Agreement (“TGVI RR Extended Settlement”) approved by Order G‐34‐07;
• Changes to the benefit‐cost analysis undertaken to evaluate EEC measures as outlined below:
o Implementation of a portfolio approach to benefit‐cost analysis such that the Total Resource Cost (“TRC”) test for all programs combined must return an overall combined result of one or more;
o Elimination of the requirement to include free‐riders in benefit‐cost tests;
o Inclusion of the benefits of savings associated with implementation of a regulation as a result of EEC programs aimed at preparing the marketplace for the introduction of regulation of minimum efficiency levels in equipment, buildings or energy systems
o Inclusion of the impact of carbon‐pricing as one of the inputs to the benefit‐cost tests;
![Page 139: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/139.jpg)
2
• A requirement that Terasen submit annually to the Commission, by the end of the first quarter following year‐end, for each year of the funding period, a report on all EEC initiatives and activities, expenditures and results for TGI and TGVI.
The Commission directed that the Application would follow a written hearing process after hearing
submissions from intervenors and interested parties.
Intervenors registered for the hearing were:
• British Columbia Hydro and Power Authority (“BC Hydro”),
• British Columbia Old Age Pensioners’ Organization et. al. (“BCOAPO”),
• B.C. Sustainable Energy Association and the Sierra Club of Canada (British Columbia Chapter) (collectively, “BCSEA‐SCBC”),
• The Ministry of Energy, Mines and Petroleum Resources (“MEMPR”),
• The Rental Owners and Managers Society of B.C. (“ROMS”),
• FortisBC Inc.,
• Pacific Northern Gas Ltd. (“PNG”),
• The Commercial Energy Consumers Association of BC (“CEC”) and
• Direct Energy Marketing Limited
In addition to parties registering as intervenors, numerous letters of comment were received.
Two rounds of Information Requests were conducted.
Intervenors BC Hydro and BCSEA‐SCBC also filed evidence.
The process was complete on December 5, 2008 with the filing of Terasen’s reply submission.
![Page 140: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/140.jpg)
3
1.2 Legal and Regulatory
1.2.1 The Utilities Commission Act
The Application is made pursuant to Section 44.2 of the Act, which states, in part:
“(1) A public utility may file with the commission an expenditure schedule containing one or more of the following:
(a) a statement of the expenditures on demand‐side measures the public utility has made or anticipates making during the period addressed by the schedule;…”
and:
“(3) After reviewing an expenditure schedule submitted under subsection (1), the commission, subject to subsections (5) and (6), must
(a) accept the schedule, if the commission considers that making the expenditures referred to in the schedule would be in the public interest, or
(b) reject the schedule.
(4) The commission may accept or reject, under subsection (3), a part of a schedule.
(5) In considering whether to accept an expenditure schedule, the commission must consider
(a) the government's energy objectives,
(b) the most recent long‐term resource plan filed by the public utility under section 44.1, if any,
(c) whether the schedule is consistent with the requirements under section 64.01 or 64.02, if applicable,
(d) if the schedule includes expenditures on demand‐side measures, whether the demand‐side measures are cost‐effective within the meaning prescribed by regulation, if any, and
(e) the interests of persons in British Columbia who receive or may receive service from the public utility.
(6) If the commission considers that an expenditure in an expenditure schedule was determined to be in the public interest in the course of determining that a long‐term resource plan was in the public interest under section 44.1 (6),
![Page 141: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/141.jpg)
4
(a) subsection (5) of this section does not apply with respect to that expenditure, and
(b) the commission must accept under subsection (3) the expenditure in the expenditure schedule.”
1.2.2 The Long Term Resource Plan
The Commission Panel notes that, with respect to subsection 44.2 (5) (b) and subsection 44.2(6),
Terasen filed its consolidated 2008 Resource Plan (on behalf of TGI, TGVI and Terasen Gas
(Whistler) Inc.) on June 27, 2008, which was accepted as described in Order G‐194‐08 and its
accompanying Reasons. As noted in the Reasons, the Commission Panel specifically excluded any
consideration or determination with respect to whether the EEC expenditures included in the
instant Application were in the public interest. Accordingly, the Commission Panel considers that
subsection 5 of s. 44.2 is applicable to the Application, whereas subsection 44.2(6) is not.
1.2.3 ‘Cost effectiveness’ and the Demand Side Measures (DSM) Regulation
Subsection 44.2 (5)(d) requires the Commission to consider whether the EEC expenditures are “. . .
cost‐effective within the meaning prescribed by regulation, if any, . . .”.
On November 7, 2008, the Government issued Ministerial Order M271/2008 which attached B.C.
Reg. 326/2008 ‐ Demand‐Side Measures Regulation. Section 3 of the DSM Regulation deals with
the “adequacy” of a demand‐side measures “plan portfolio” and section 4 of the DSM Regulation
sets forth certain requirements with respect to the determination of whether such expenditures
are “cost effective”. Section 2 of the DSM Regulation provides that the regulation applies only to
‘the authority’ (BC Hydro) until June 1, 2009, at which time the regulation will become more
generally applicable. Accordingly the requirements of sections 3 and 4 are not applicable to
Terasen’s current EEC Application.
![Page 142: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/142.jpg)
5
1.2.4 BC Government’s Energy Objectives
Subsection 44.2 (5)(a) of the Act requires the Commission to consider the “government’s energy
objectives” in considering whether to accept an expenditure schedule. The “government’s energy
objectives” are defined in section 1 of the Act as follows:
“(a) to encourage public utilities to reduce greenhouse gas emissions;
(b) to encourage public utilities to take demand‐side measures;
(c) to encourage public utilities to produce, generate and acquire electricity from clean or renewable sources;
(d) to encourage public utilities to develop adequate energy transmission infrastructure and capacity in the time required to serve persons who receive or may receive service from the public utility;
(e) to encourage public utilities to use innovative energy technologies
(i) that facilitate electricity self‐sufficiency or the fulfillment of their long‐term transmission requirements, or
(ii) that support energy conservation or efficiency or the use of clean or renewable sources of energy;
(f) to encourage public utilities to take prescribed actions in support of any other goals prescribed by regulation…”
![Page 143: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/143.jpg)
6
2.0 TERASEN’S PROPOSED EEC EXPENDITURES
Terasen is applying for approval of an increase in allowed expenditures for EEC activity for TGI and
TGVI to a total of approximately $56.6 million over the three year Program Period 2008 to 2010, an
increment of $48.062 million over currently approved DSM spending for the two utilities.
(Exhibit B‐1, p. 8)
The proposed EEC Expenditures, by Program Area, by Utility, are set out in the table below.
Table 1
($000)
Spend by Program Area 2008 ‐2010 TGI TGVI Total
Residential Energy Efficiency 8,552 734 9,286
Commercial Energy Efficiency 19,592 2,199 21,791
Residential Fuel Switching 1,332 2,367 3,699
Conservation Education and Outreach 11,068 2,767 13,835
Joint Initiatives 2,400 600 3,000
Trade Relations 1,200 300 1,500
Conservation Potential Review 400 100 500
Innovative Technologies, NGV and
Measurement
2,400 600 3,000
Total 46,944 9,667 56,611
(Source: Exhibit B‐1, p. 9)
Terasen states that it is most efficient for the Commission to approve the overall expenditure level,
by utility, for the funding period rather than by approving the funding by program area or by
individual program initiative. Terasen submits that this approach will allow it to respond quickly to
changes within initiatives and to new opportunities that might arise, and will reduce the
administrative burden related to EEC activity. (Exhibit B‐1, pp. 50‐51)
![Page 144: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/144.jpg)
7
Terasen also submits that the energy savings from the EEC expenditures will result in savings with a
present value of almost 10 million gigajoules (“GJs”) over the lives of the various measures
proposed, while fuel switching activity is estimated to result in approximately 2.3 million GJs of
additional load. The anticipated present value of net energy savings is approximately 7.7 million
GJs, not including potential savings arising from Conservation Education and Outreach, Joint
Initiatives or Innovative Technologies, NGV and Measurement program areas. (Exhibit B‐1, p. 10)
Terasen further states that DSM expenditures at current levels would result in cumulative annual
savings of 1.3 million (nominal, rather than present value) GJs by 2016, whereas the proposed
expenditures would result in cumulative annual savings of approximately 6.4 million nominal GJs in
the same time period. (Exhibit B‐1, p. 11)
2.1 Residential and Commercial Energy Efficiency
Terasen developed its budget estimates for Residential Energy Efficiency, Commercial Energy
Efficiency and Residential Fuel Switching based on work done in 2006 in its Conservation Potential
Review (“CPR”). Those estimates were refined by Habart and Associates Consulting Inc. (“Habart”)
as described in Habart’s September 2007 Report (“Habart Report”) provided in Appendix 9 of the
Application. (Exhibit B‐1, p. 52) The Habart Report concluded that total DSM funding of
approximately $35 million over the three‐year period would be required. (Exhibit B‐1, Appendix 9,
p. 23)
Terasen states that “[t]he key finding of the CPR was the Achievable Potential” which is a measure
of savings which could realistically be achieved within the study period. (Exhibit B‐1, p. 45) The
Achievable Potential from the CPR is outlined in the table below:
![Page 145: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/145.jpg)
8
Table 2
CPR Findings
(Exhibit B‐1, Table 4.1, p. 45)
Terasen states that “[t]he strategies outlined in this Application, and the expenditures for which
approval is being sought, are based to a significant degree on the findings of the CPR and the
subsequent work undertaken with Habart.” (Exhibit B‐1, p. E‐3)
In discussing estimation of new dwelling heating loads, the 2006 CPR states that: “[d]iscussions
with provincial government staff indicated that a number of changes to residential buildings are
under consideration that could affect the thermal performance of British Columbia’s new housing
over the study period.” The changes being considered include targets for new construction,
including residential buildings and all commercial buildings (including apartments) and strategies to
achieve improved thermal performance in related residential equipment and products, including
furnaces, fireplaces, and windows. (Exhibit B‐1, Appendix 1, p. 33)
2.1.1 Residential Energy Efficiency
Terasen proposes spending $9.286 million on Residential Energy Efficiency for both TGI and TGVI
over the Program Period (Exhibit B‐1, p. 55, Table 6.2b). The Residential Energy Efficiency program
area includes both new construction and retrofit initiatives.
![Page 146: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/146.jpg)
9
2.1.1.1 New Construction
For new construction, Terasen is proposing EnerChoice Fireplace and Energy Star Appliance
initiatives. The EnerChoice Fireplace program will provide an incentive to customers who purchase
and install an EnerChoice rated fireplace, insert or free‐standing stove. The Energy Star Appliance
program provides incentives for customers who use natural gas for domestic hot water (“DHW”)
heating to install Energy Star clothes washers and/or dishwashers. (Exhibit B‐1, p. 59)
Terasen states “[t]he key decision makers in this market for the [new construction] programs . . .
are builders and developers who build single family homes and row‐houses” and “. . . new
construction EEC portfolio in the residential market will include programs that encourage
customers, whether they be individuals building a new home, or builders and developers, to install
energy efficient appliances.” (Exhibit B‐1, p. 58) (emphasis in original)
2.1.1.2 Retrofit
For the residential retrofit market Terasen is proposing an Energy Star Heating System Upgrade
program that will reprise earlier versions of this program, and will provide customers who install an
Energy Star heating system a credit on their Terasen bill for gas service. Terasen’s Application is
based on funding for incentives for gas furnace upgrades in single family dwellings (“SFDs”) and
duplexes in the Terasen service territory. Terasen estimates upgrades to 5.3 percent of the stock of
pre‐1976 SFDs and duplexes or 8,180 furnace upgrades to the end of 2009. Terasen notes that due
to expected new Federal government regulations requiring all furnaces sold in Canada to meet a
minimum standard of 90 percent efficiency after December 31, 2009, this program will conclude
prior to that date. (Exhibit B‐1, pp. 59‐60)
Terasen is also proposing EnerChoice Fireplace and Energy Star Appliance programs for the retrofit
market as for the new construction market. The Hearth, Patio & Barbeque Association of Canada
will provide assistance in promotional and educational aspects of the EnerChoice Fireplace
program. (Exhibit B‐1, p. 60)
![Page 147: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/147.jpg)
10
The residential sector expenditures proposed by Terasen, by utility and program area are as
follows:
Table 3
TGI and TGVI Energy Efficiency ($000) 2008 2009 2010 Total
TGI New Construction 411 566 1,056 2,033
Retrofit 2,495 2,658 1,367 6,520
Sub total, TGI 2,906 3,224 2,423 8,553
TGVI New Construction 130 156 232 518
Retrofit 53 66 97 216
Sub total, TGVI 183 222 329 734
Total 3,089 3,446 2,752 9,287
Source: BCUC IR No. 1 Attach 56.2A
2.1.1.3 Commercial Energy Efficiency
Terasen is proposing to spend $21.7 million on commercial sector new construction and retrofit
programs (Exhibit B‐1, p. 60). The expenditure proposals were based on refinements of the
following initial recommendations from the Habart report:
![Page 148: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/148.jpg)
11
Table 4
TGI and TGVI Commercial Programs
Spending 2008‐2010 ($000)
TGI TGVI
New Construction
Efficient New Construction 5,297 727
Boilers 1,928 224
Water Heating 1,118 103
Subtotal ‐ New Construction 8,343 1,055
Retrofit
Boilers 7,395 1,074
Building Recommissioning 3,095 354
Next Generation Building Automation Systems 968 95
Demand Control Ventilation 1,795 ‐
High Efficiency Rooftop Units 239 17
Water Heat 2,032 254
Subtotal ‐ Retrofit 15,524 1,794
Total Commercial Energy Efficiency 23,867 2,849
Source: Exhibit B‐2, Attachment 56 2A TGVI and 56 2A TGI
2.1.1.4 New Construction
The commercial new construction program is aimed at all new construction “…which might use
natural gas space and water heating.” Terasen states that “…the immediate opportunities are
likely to be Multifamily Dwellings (“MFDs”) and Commercial office space” and may also include
some institutional buildings. (Exhibit B‐1, p. 61) Terasen lists some potential areas for activity in
the commercial new construction sector, and notes that program design in this sector is complex,
so the program activities listed in the Application are merely summaries.
![Page 149: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/149.jpg)
12
Terasen states “[t]he key decision makers in this market are owners including: governments;
builders/developers; architects; engineers; interior designers; mechanical consultants; and
contractors.” (Exhibit B‐1, p. 61)
The new construction energy efficiency program areas include initiatives aimed at:
• Efficient New Construction Design and High Insulation Technology for windows;
• Condensing and near condensing boilers; and
• Instantaneous and condensing DHW heaters and drain water heat recovery.
(Exhibit B‐1, Table 6.3.2, p. 61)
2.1.2.5 Retrofit
Terasen’s commercial retrofit program is aimed at all commercial and industrial buildings with
existing natural gas space and water heating equipment. Terasen again notes that, due to the
complexity of programs in this sector, it has merely summarized areas of program activity and
states “[m]ore detailed program development work must be completed by [Terasen] in conjunction
with industry groups before these programs are rolled out.” (Exhibit B‐1, p. 62)
Commercial retrofit energy efficiency program area activity includes initiatives for:
• Condensing and near condensing boilers
• Building Recommissioning
• Next Generation Building Automation Systems (“BAS”)
• High Efficiency (“HE”) Rooftop Units
• Instantaneous and condensing DHW boilers and heaters
• For TGI only, Terasen is proposing to add: demand control ventilation for large and medium commercial buildings and drainwater heat recovery.
(Exhibit B‐1, p. 62, Table 6.3.2a)
![Page 150: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/150.jpg)
13
Terasen states that commercial sector programs are intended to offer qualified customers a menu
of programs from which to choose and that Terasen staff will work with participants in selecting
the most appropriate program and/or component. (Exhibit B‐1, p. 63)
Intervenor Positions
BCOAPO takes issue with the relative allocation of spending as between proposed residential and
commercial customer groups. BCOAPO notes that residential customers make up 90 percent of
Terasen’s total customers and 38 percent of its total volume, whereas commercial customers
represent only 9.7 percent of its customer base and 26 percent of its total volume. (BCOAPO
Argument, p. 12)
Commission Determination
The Commission Panel notes BCOAPO’s comments as well as the CPR evidence indicating that some
70 percent of the Achievable Potential savings are associated with the residential sector. Terasen
has included residential market MFDs in its Commercial EE program, which, in the view of the
Commission Panel, may also have significant potential for low income housing initiatives. Terasen
indicates that it will re‐direct funding amongst programs based on customer response, thus
enabling funding balancing between Residential and Commercial programs as appropriate.
The Commission Panel finds the design of Terasen’s Residential and Commercial EE programs to be
reasonable, flexible and in the public interest, and accepts the expenditure proposals for these
program areas.
![Page 151: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/151.jpg)
14
2.2 Residential Fuel Switching
Reduction in Greenhouse Gas (“GHG”) emissions is advanced by Terasen as a benefit in support of
residential fuel switching for TGI. The stated premise is that the substitution of natural gas for
electricity will reduce overall GHG emissions in the short term, by increasing the amount of
electricity available to BC Hydro to meet domestic load, thereby reducing its dependence on
imported power or, alternatively, allowing it to increase exports of clean power, thus enabling a
reduction in the regional use of gas or coal‐fired power. Terasen submits, over the longer term, to
the extent BC Hydro is able to meet its load requirements, excess clean generation could be
exported, displacing the use of gas and/or coal‐fired generation in the region (Western
Interconnection). (Exhibit B‐1, p. 63; Terasen Reply, p. 5)
Terasen states that “[t]he primary objective of the fuel‐switching offers is to promote the most
optimal balance in energy share between electricity and natural gas, preserving BC Hydro’s
generation and transmission systems for its [sic] highest value – in running lights, computers and
other technology.” (Exhibit B‐1, p. 64)
Terasen proposes to spend $3.7 million in the residential fuel switching program area. It is
proposing that only new construction fuel switching programs be offered in the TGI service area
but that both new construction and retrofit fuel switching programs be offered in the TGVI service
area.
Terasen proposes to spend the following amounts on fuel switching programs annually, over the
Funding Period.
![Page 152: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/152.jpg)
15
Table 5
Residential Fuel Switching Programs
Program Initiatives TGI TGVI
New Construction
Natural Gas Water Heating NG DHW 319 693
NG Range 1,013 50
Sub Total 1,332 743
Natural Gas Appliances
Retrofits NG Dryer 38
Natural Gas Appliances FS Range ‐ 247
FS Dryer ‐ 247
Furnace Fuel Substitution Furnace ‐ 766
Fireplace Fuel Substitution EnerChoice Fireplace ‐ 326
Sub‐total 1624
Totals 1332 2367
Source: Exhibit B‐2, Attachments 56.2A 2 (TGI) and 56.2A 4 TGVI
New Construction
All new construction expenditures involve fuel switching from electricity. Only the Retrofit
programs, which are limited to Vancouver Island, involve potential fuel switching from propane, oil
or wood in addition to electricity. Terasen states: “[i]t is very challenging to separate out proposed
expenditures for fuel switching from electricity to natural gas from vs. [sic] proposed expenditures
for fuel switching from non‐electric sources to natural gas, as there are a number of potential
energy sources for the proposed TGVI residential retrofit program, and …[it] cannot predict the
proportion of participants switching from each energy source.” (Exhibit B‐5, BC Hydro 1.1.1)
![Page 153: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/153.jpg)
16
Terasen proposes fuel substitution incentive programs to encourage the use of natural gas in new
construction projects for installation of natural gas domestic hot water heaters in the TGVI service
area and to install a natural gas range and/or dryer in both the TGI and TGVI service areas.
(Exhibit B‐1, p. 64)
Retrofit
Incentive funding for fuel substitution retrofits is only contemplated for TGVI, as many households
in its service territory still use wood, propane or fuel oil for space heating and fireplaces.
The proposed programs include incentive payments for:
• Switching to natural gas for space heating and for installing Energy Star equipment. Terasen states that “the current regulatory regime for TGVI does not allow Terasen to offer customers who switch to natural gas an incentive to install Energy Star equipment.” (Terasen proposes that it be able to offer both, but also advises that it would restrict the incentive to furnaces and boilers rated Energy Star.);
• Installation of an EnerChoice‐rated fireplace, insert or free‐standing stove; and
• Replacement of existing electric or propane ranges and dryers with gas appliances.
(Exhibit B‐1, p. 65)
Intervenor Positions
BCOAPO strongly opposes the inclusion of any expenditures associated with fuel switching away
from electricity to natural gas in Terasen’s EEC portfolio. BCOAPO argues that there is no evidence
as to an “optimal balance” as between electricity and natural gas and suggests that a movement
away from (clean) electricity to a fossil fuel would not be part of such optimal balance. (BCOAPO
Argument, p. 10)
![Page 154: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/154.jpg)
17
BC Hydro filed the evidence of Randy Reimann, P. Eng., its manager of Resource Planning, wherein
he contradicted Terasen’s assertion that fuel switching away from electricity to natural gas would
reduce the need for BC Hydro to import electricity from other jurisdictions which rely on coal or
natural gas for generation. Mr. Reimann stated: “[t]here is no medium to long term linkage
between fuel switching from electricity to natural gas and a change in BC Hydro’s need for
importing electric energy or ability to export such energy.” (Exhibit C2‐6, Direct Testimony of
Randy Reimann, p. 2, Q.7)
BC Hydro also filed the evidence of Patrice Rother, its manager of Environmental Strategy in the
Safety, Health and Environmental group. Ms. Rother reviewed recent GHG‐related legislative and
policy developments including the B.C. Greenhouse Gas Reduction Targets Act (“GGRTA”), the B.C.
Climate Action Plan and the joinder of British Columbia into the Western Climate Initiative and
highlighted a number of areas of uncertainty surrounding how the WCI GHG trading scheme will
align with the GGRTA legislated targets and other Chinook Action Plan action items on a regional
basis. (Exhibit C2‐6, Direct Testimony of Patrice Rother pp. 2‐3, Q. 8, 11)
Commission Determination
While the Commission Panel notes the comments of Terasen regarding potential GHG benefits of
fuel switching, particularly away from fossil fuels with a higher carbon content than natural gas, the
Commission Panel is not convinced that expenditures on fuel switching and load building away
from electricity can be properly considered in a portfolio of EEC programs at this time. The
Commission Panel agrees with the comments of the BCOAPO that the “optimal balance” as
between natural gas and electricity has not been established. The Commission Panel also finds that
the efficiency of other energy sources over and above that of electricity has not been adequately
established.
The Commission Panel also notes that natural gas does have a GHG impact which is not present in
clean domestic electricity and that one of the government’s energy objectives is “to encourage
public utilities to reduce GHG emissions.” The Commission Panel accepts the evidence of
![Page 155: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/155.jpg)
18
Ms. Rother that there is considerable uncertainty, at this time, surrounding how various
government initiatives will align on a regional basis. The Commission Panel finds that Terasen has
not provided sufficient evidence to persuade the Panel, on a balance of probabilities, that a
regional approach should be adopted as a justification for EEC expenditures aimed at substituting
natural gas as a fuel to replace electricity.
The Commission Panel accepts EEC expenditures directed at fuel switching from fossil fuels with a
higher carbon content than that of natural gas. Expenditure programs specifically directed at
encouraging fuel switching away from electricity are rejected, as are Incentive payments for
appliances for which an Energy Star rating is not available. However, expenditures are accepted for
incentives to install Energy Star and EnerChoice equipment and appliances for customers who, at
their own initiative, wish to switch to natural gas as the fuel of choice.
2.3 Conservation Education and Outreach
This proposal is in addition to program‐specific education and outreach funding, and relates to non‐
program‐specific activities, as set out below.
• Terasen’s proposed budget for Conservation Education and Outreach (CEO) was developed in consultation with Wasserman + Partners Advertising (“Wasserman”). Terasen proposes a total CEO expenditure of $13.835 million in the 2008 to 2010 period which is 24 percent of the total EEC proposed expenditures of $56.611 million. The Wasserman proposal states that the planned messaging will educate the public about Terasen’s EEC program and related activities.
(Exhibit B‐1, Appendix 8)
Terasen was requested to describe the specifics of the CEO programs and responded that these
initiatives “. . . have not yet been fully developed, however, as outlined on page 65 of the
Application, they are projected to include:
![Page 156: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/156.jpg)
19
• Stakeholder industry group activities, such as first time homebuyers seminars
• Public outreach by “Team Terasen”
• Support for conservation education within the school system
• Energy Forum
• Conservation communications, as outlined in Appendix 8 in the Application.”
(Exhibit B‐2, BCUC 1.28.1)
The entire proposed $13.835 expenditure for the CEO Program Area is taken by the Conservation
communications initiative of the CEO Program. $11.550 million or 83 percent of the $13.835
million is allocated to Mass Media Advertising and Production over the three year expenditure
period. (Exhibit B‐1, Appendix 8)
Terasen did not submit any details or expenditure estimates for the first four program initiatives
described above.
Terasen proposes to attribute the CEO expenditures in each year equally between the Residential
and Commercial Energy Efficiency programs, with none of the CEO expenditures being attributed to
other Program Areas such as Fuel Switching or Trade Relations. (Exhibit B‐1, p. 54)
Terasen states: “EEC expenditures will be efficient, with non‐incentive costs not exceeding 50% of
the expenditure in a given year.” (Exhibit B‐1, p. 47, #3) Terasen does not provide any further
evidence supporting the implication that, merely by not exceeding 50 percent of the total, non‐
incentive, expenditures, the balance represents efficiency in expenditures.
Intervenor Positions
BCOAPO submitted that “The Application’s education and outreach component is
disproportionately large, and inappropriately treated as an asset to be amorti[s]ed over 20 years.”
(BCOAPO Argument, p. 14)
![Page 157: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/157.jpg)
20
BCSEA‐SCBC submitted the evidence of John J. Plunkett of Green Energy Economics Group, Inc. The
Commission Panel reviewed Mr. Plunkett’s qualifications and experience and accepts him as an
expert with respect to the matters his testimony addresses in this Application.
Mr. Plunkett proposes that the CEO should be reduced by 50 percent, and the amount by which the
funding is reduced be redirected to the residential and commercial efficiency programs.
Mr. Plunkett notes that while building a conservation ‘ethic’ in British Columbia is laudable, the
primary purpose of the CEO expenditures should be to support the efficiency programs.
(Exhibit C5‐5, pp. 18, 19)
Commission Determination
The Commission Panel finds that Terasen has not provided sufficient evidence to support either the
$13.835 million total proposed EEC expenditures, or the allocation of some 84 percent of that
amount to mass media advertising and production. The Commission Panel notes that the
Commercial component comprises some 70 percent of the total expenditures in the combined
Residential and Commercial Energy Efficiency program areas, to which the CEO costs have been
attributed equally. The Commission Panel also notes Terasen’s comments, quoted above, with
respect to the key decision makers in both the new and retrofit commercial markets. The
Commission Panel considers both these markets to be significantly more narrow and focused than
markets which may warrant the use of mass media approaches to communication.
The Commission Panel also notes that Terasen’s evidence did not include any discussion of bill
stuffers or other communication methods.
The Commission Panel agrees in part with Mr. Plunkett’s proposal, and considers that, while public
education is an appropriate activity in support of the EEC objectives, the evidence is not sufficient
to support either the full amount proposed or the allocation of the proposed CEO expenditures.
The Commission panel does not agree with Mr. Plunkett’s suggestion that the funding reduction of
![Page 158: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/158.jpg)
21
the CEO expenditures be redirected to the energy efficiency programs. The Commission Panel
finds the evidence sufficient to establish that there is a benefit to some CEO expenditures and
accepts 50 percent, $6.918 million, as reasonable.
Terasen is directed to review the CEO program with a view to:
• altering the program to allocate funds away from the mass media campaign and to include other initiatives, with particular attention paid to conservation education within the school system and affordable housing initiatives;
• addressing the apparent imbalance of the residential to commercial expenditure ratio, approximately 30:70, in comparison to the ratio of residential to commercial Achievable Potential GJ impact of approximately 77:23 (Exhibit B‐1, p. 45);
• reconsidering the apparent lack of communication expenditures directed in a focused manner to the Commercial Energy Efficiency program,
• reconsidering appropriate attribution of CEO costs to Program Areas and initiatives, and any related impact on Total Resource Cost calculations and rate impacts.
2.4 Joint Initiatives, Trade Relations, 2009 CPR, and Innovative Technologies, NGV and
Measurement
2.4.1 Joint Initiatives
Terasen is requesting that $1.0 million per year be approved for the development of Joint
Initiatives as they arise. Initiatives that Terasen states it will, or may pursue if the funding is
approved, include: support for audits for a Provincial Home Retrofit Program, DSM for affordable
housing, building labeling, and community action on energy efficiency. (Exhibit B‐1, pp. 66‐68)
![Page 159: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/159.jpg)
22
2.4.1.1 Audits
The “audit” joint initiative involves providing financial assistance to customers by paying for the
cost of a pre or post upgrade audit, both of which are necessary for participation in the federal
government’s “Eco‐Energy” program. This initiative would support the provincial government’s
expressed intention to implement a province‐wide home retrofit program, “LiveSmartBC”, to
complement the federal government initiative. The provincial program does not contemplate
paying the cost of post‐retrofit audits, and Terasen sees an opportunity to provide full or partial
funding to enable more of its customers to participate in the programs. (Exhibit B‐1, pp. 43, 67)
2.4.1.2 Affordable Housing
Terasen states that “[t]he Ministry of Energy Mines and Petroleum Resources has asked that the
Terasen Utilities lead a working group on DSM for Affordable Housing, the goal of which is to find
ways and means to deliver Energy Efficiency to the Affordable Housing sector in B.C. and that such
group has been convened. Terasen proposes to fund its participation in any resulting DSM
incentive program from the Joint Initiatives Program allocation. (Exhibit B‐1, p. 67)
2.4.1.3 Labeling
A further joint initiative which Terasen proposes is to co‐fund a pilot project to label homes and
buildings with an energy consumption/efficiency rating. Terasen states that this will assist in
informing the public and promoting energy conservation and will enable comparisons as between
different gas‐heated homes.
2.4.1.4 Community Action
Terasen also proposes to make a financial contribution to the pool of funds to which municipalities
can apply under the “Community Action on Energy Efficiency” initiative for financial and research
support to advance energy conservation and efficiency in their areas, through policy action and
![Page 160: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/160.jpg)
23
public outreach. (Exhibit B‐1, p. 68; The BC Energy Plan 2007‐ Policy Action #9)
Intervenor Positions
BC Hydro supports the Joint Initiatives funding requested. (BC Hydro Argument, p. 5)
BCOAPO argues that this area of the EEC is “drastically under‐funded if any meaningful [low‐
income energy efficiency program (“LIEEP”)…is to be developed.” (BCOAPO Argument, p. 7)
BCSEA‐SCBC argues: “. . . while the four initiatives under the Join Initiatives program area may be
worthwhile” they do not satisfactorily address the need for better integration of Terasen’s
programs with electrical DSM programs as identified by the BCSEA‐SCBC expert, Mr. Plunkett.
(BCSEA‐SCBC Argument, pp. 12‐13) Mr. Plunkett recommends that Terasen should be directed to
redesign programs by streamlining them and better integrating them with electric efficiency
programs. (Exhibit C5‐5, p. 5)
Commission Determination
The Commission Panel accepts the expenditures requested for the Joint Initiatives Program area.
The Commission Panel notes the comments of the BCOAPO and agrees that the Affordable Housing
Initiative appears to be under‐funded, particularly given that no portion of the requested global
amount for Joint Initiatives is specifically dedicated to Affordable Housing. The Commission Panel
also notes that the DSM Regulation which does not yet, but will, apply to Terasen requires that a
public utility’s plan portfolio include “a demand‐side measure intended specifically to assist
residents of low‐income households to reduce their energy consumption”. The Commission Panel
therefore directs Terasen to proceed with its Joint Initiative relating to Affordable Housing and
encourages Terasen to consider re‐allocating funding from other approved areas of its overall
spending as may be suitable.
![Page 161: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/161.jpg)
24
The Commission Panel concurs with Mr. Plunkett’s recommendation, and considers the Joint
Initiatives Program to be an appropriate area from which funds should be used to aggressively
pursue integrating Terasen’s EEC programs with those of the electric utilities in British Columbia.
The Commission Panel’s view is that integrating the efforts of gas and electric utilities will better
encourage customers to take advantage of the programs by eliminating unnecessary duplication in
communication, applications, audits and similar time consuming activities.
2.4.2 Trade Relations
The Trade Relations program area is aimed at the support and education of skilled trades,
equipment manufacturers, distributors, suppliers and retailers, appliance and equipment
salespeople and Realtors. The $1.5 million in funding being requested for Trade Relations with this
Application is to support the activities of a Terasen Utilities staff member focused on Trade
Relations as it relates to energy efficiency.
Commission Determination
The Commission Panel takes note of Terasen’s descriptions of the key decision makers in each of
the Residential and Commercial EE programs, referred to previously, as well as the references to
the complexity of the commercial new construction and retrofit sector programs and resulting
paucity of detail for those program areas. (Exhibit B‐1, p. 61)
The Commission Panel considers that the Trade Relations program area expenditures represent a
significant duplication of the Residential and Commercial Energy Efficiency programs’ non‐incentive
costs. As noted in the Application, the Energy Efficiency programs will significantly increase the
interactions as between Terasen and its customers, and therefore increase “the opportunities for
[Terasen] to communicate general conservation information in addition to program‐specific
information...” (Exhibit B‐1, p. 46) The Commission Panel finds the evidence with respect to the
details of the Trade Relations program area to be insufficient, and accordingly, this area of
expenditure is rejected.
![Page 162: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/162.jpg)
25
2.4.3 Innovative Technologies, NGV and Measurement
Terasen states that it is in a unique position to foster and further the deployment of forward‐
looking low carbon technologies, including measurement technologies, and is therefore seeking
funding with this Application, specific to this arena. (Exhibit B‐1, p. 69)
Terasen states that “[t]he amount for Innovative Technologies, NGV and measurement will need to
be refined – if an effective program in Innovative Technologies, NGV and Measurement can be
developed over the funding timeframe, the Companies wish to have the ability to fund such a
program over the funding timeframe.” (Exhibit B‐1, pp. 53, 69) Terasen states that the activity in
this area would be in the nature of pilot programs, with limited time frames, geographic areas and
numbers of installations. The Companies indicate that they would pursue technologies with the
same underlying characteristics:
• Each promotes the efficient use of natural gas through sustainable design;
• None are currently a mainstream technology;
• Each offers the potential for at least a 10 percent GHG benefit.
Energy efficiency technologies the Companies would intend to pursue include:
• Residential
o hydronic based heating systems;
o Integrated energy systems providing both space heat and DHW;
o Solar thermal assisted space or DHW systems;
![Page 163: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/163.jpg)
26
• Commercial
o hydronic based heating systems;
o Solar thermal assisted space or DHW systems.
(Exhibit B‐1, p. 73)
Terasen states that it would aim fuel‐substitution initiatives at both new construction and retrofit
markets in both the TGI and TGVI service areas, and notes that fuel‐substitution in this category
refers to the displacement of natural gas using cleaner renewable technologies. The Companies
state that more detailed program development work must be completed by Terasen in conjunction
with industry groups before programs are rolled out or funding is allocated. (Exhibit B‐1, p. 74)
Commission Determination
The Commission Panel considers that Innovative Technologies, NGV and Measurement programs
can be appropriate vehicles for encouraging commercial development of technologies to reduce or
replace natural gas consumption and related GHG emissions.
However, as noted above, Terasen acknowledges that further refinement of this program is
required and indicates uncertainty as to whether an effective program can be developed over the
funding timeframe. The Commission Panel finds that there is insufficient evidence with respect to
the nature and scope of the proposed program, and accordingly rejects the Innovative
Technologies, NGV and Measurement program expenditures at this time. Terasen may wish to
bring forward projects in this program area for consideration as they become more fully developed.
![Page 164: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/164.jpg)
27
2.5 Conservation Potential Review Update
The Terasen Gas April 2006 Conservation Potential Review (CPR) was a comprehensive planning
document prepared for TGI to use for:
• Developing a long range energy efficiency and fuel choice strategy;
• Designing and implementing energy efficiency and fuel choice programs;
• Assessing the impact of energy efficiency and fuel choice programs on both peak and annual loads; and
• Setting annual efficiency and fuel choice targets and budgets.
(Exhibit B‐1, Appendix 1, page E‐1)
The 2009 CPR estimate of $0.5 million is based on the cost to perform the previous CPR,
approximately $300,000, plus an allowance for the kind of work done by Habart to refine the CPR
results into a DSM program. (Exhibit B‐1, p. 53) The updated CPR would be received in 2010 and
would form the basis for an application to the Commission for EEC funding for the period 2011 to
2014. (Exhibit B‐1, p. 69) It also includes an allowance of $100,000 for cost inflation from the last
CPR. (Exhibit B‐2, BCUC 1.21.1)
The CPR Program is discussed at Section 4 of the Application, including an illustration of the CPR
Process Flow, and a table summarising the potential annual impact identified by the 2006 CPR. The
2006 CPR identifies a gross impact [consumption reduction] by 2015/2016 of 11.615 million GJs,
and a Potential Annual Impact of 10.163 million GJs after adding back 1.453 million GJs of
additional load attributed to the residential fuel switching program. The gross impact number
includes 1.890 million GJs for Industrial Energy Efficiency (EE). Separate programs for Industrial EE
are not specifically included as part of the Application. (Exhibit B‐2, pp. 44‐46)
The detailed 2006 CPR report is included in the Application. (Exhibit B‐2, Appendix 1)
![Page 165: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/165.jpg)
28
Intervenor Positions
BCSEA‐SCBC supports Terasen’s proposal for approval of expenditures for an update of the CPR to
form the basis for Terasen’s “next tranche of EEC funding for the period 2011 to 2014.” (BCSEA‐
SCBC Argument, p. 15)
BC Hydro supports Terasen’s evidence with respect to the CPR and also the program element in the
Application for additional funding for a 2009 update of the CPR. (BC Hydro Argument, p. 5)
Commission Determination
The Commission Panel considers the CPR to be an important tool for use in developing, supporting
and assessing this and future EEC/DSM expenditure Applications. The Commission Panel accepts
the Application’s CPR update expenditure proposal.
The Commission Panel anticipates that Terasen will be able to develop a stronger and more
transparent linkage between the CPR, the development of programs arising from the CPR and their
proposed costs in any future EEC/DSM Applications.
2.6 The Industrial Sector
Terasen has not included energy efficiency (EE) initiatives for industrial customers in the
Application. Terasen discusses its rationale for not planning for EE programs specifically for the
industrial sector at Section 6.10 of its Application, Exhibit B‐1, p. 78.
The CPR study conducted by Marbek Resource Consultants Ltd. and Willis Energy Services Ltd.
(Marbek) concluded that:
![Page 166: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/166.jpg)
29
“The study findings confirm the existence of significant potential cost‐effective natural gas efficiency improvements in B.C.’s manufacturing sector. In the “most likely” and “upper” achievable scenarios those energy efficiency improvements would provide between about 1,900 and 2,600 thousand GJ/yr. of savings in FY 2015/16. The same energy efficiency improvements would also provide reduced GHG emissions of approximately 80,000 to 112,000 tonnes per year as well as peak day load reductions of approximately 20 to 20.5 thousand GJ. Two particularly significant opportunities are identified in the study results:
• Energy efficient boilers for the greenhouse and food processing facilities in the Lower Mainland.
• Energy efficient kilns for sawmills and planer mills in the Interior.”
(Exhibit B‐1, Appendix 1, p. 75)
Intervenor Positions
MEMPR provided a Letter of Comment stating: “. . .the Ministry has an interest in seeing Terasen
Gas Inc. and Terasen Gas (Vancouver Island) Inc. (“the Companies”) expand their demand‐side
management activities. The Ministry notes the absence of specific demand‐side measures for the
industrial sector in the Application. The Companies may be missing significant conservation and
efficiency gains.” (MEMPR Letter of Comment, Exhibit C1‐4, p. 1)
The Ministry also submitted that the Commission should include a number of determinations in its
Decision with respect to the processes and timing of development of DSM measures for the
manufacturing sector.
BCSEA‐SCBC concurs with MEMPR’s recommendation. (BCSEA‐SCBC Argument, p. 16)
Terasen submits that “a cautious approach is warranted in considering delivering incentives to
industrial customers at a high enough dollar level to spur participation adequate to ensure a
positive TRC. Both of these options expose customers to risk. The Terasen Utilities will continue to
![Page 167: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/167.jpg)
30
explore opportunities for industrial DSM and will bring forward a proposal if they regard
expenditures as being warranted and in the interests of customers.” (Terasen Reply, p. 17)
Commission Determination
The Commission Panel considers that the omission of an industrial sector program in Terasen’s EEC
Application is a significant and unfortunate shortcoming in Terasen’s stated efforts to support the
BC Energy Plan (“Energy Plan”) Policy Actions (Exhibit B‐1, Appendix 6) with respect to Energy
Efficiency in the industrial sector. The Commission Panel takes particular note of Terasen’s specific
exclusion of EEC Policy Action 8, which addresses the development of an “Industrial Energy
Efficiency Program”. (Exhibit B‐1, p. 40; Energy Plan, p. 39)
The Commission Panel takes note of the MEMPR Letter of Comment, and directs Terasen to
commence the planning process for the development of an industrial EE program and to file a
report outlining the process contemplated and scheduling of the development plan with the
Commission for review within 90 days of this Decision. The matters addressed in the report should
include those raised by MEMPR in Exhibit C4‐1.
![Page 168: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/168.jpg)
31
3.0 ASSESSMENT CRITERIA AND ACCOUNTABILITY
Terasen believes that the benefit‐cost “. . . results for the proposed EEC expenditure in this
Application are under‐stated, because the benefits used in the calculations include free‐riders,
effectively reducing the net energy savings, and exclude attribution effects, as well as excluding
savings from the proposed expenditure on Joint Initiatives, Trade Relations, Conservation
Education and Outreach and Innovative Technologies, Measurement and NGV. However, even
with this approach, which could be considered conservative, the Total Resource Cost test result for
the EEC portfolio as a whole is positive, with a ratio of 2.9., and a net financial benefit of $139.4
million. If free rider effects are excluded, as the Companies are proposing, the EEC portfolio has a
TRC ratio of 3.1 and a net financial benefit of $165.1 million.” (Exhibit B‐1, pp. 87, 88)
3.1 Portfolio Approach
Terasen proposes a “portfolio approach” to the benefit‐cost analysis which involves assessing the
cost effectiveness of the EEC portfolio as a whole, “on an overall combined basis, rather than on
individual initiatives or program areas.” (Exhibit B‐1, p. 82) Terasen proposes that the portfolio as a
whole maintain a TRC ratio of 1.0 or better to allow it to include programs which, on an individual
basis, may not have such a ratio in the short term, but have longer term potential to achieve the
ratio. This approach would also allow Terasen to offer programs to customers in service areas
which would otherwise not have sufficient customer usage to support the necessary TRC ratio.
(Exhibit B‐1, pp. 11‐12)
Intervenor Positions
Mr. Plunkett indicates that judging economic performance at the portfolio level only is
“problematic”. (Exhibit C5‐5, p. 14) He recommends that Terasen establish the cost‐effectiveness
of each measure and project. (Exhibit C5‐5, p. 15)
![Page 169: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/169.jpg)
32
Terasen states in reply that it is not proposing that economic performance be judged only at the
portfolio level and that Mr. Plunkett has mischaracterized its proposal.
Terasen states that “[t]he energy efficiency and fuel switching programs would be planned and
evaluated on the TRC, the RIM test, the Utility Cost (“UC”) test and the Participant test, and the
overall portfolio TRC test results would have to be greater than 1.0 to proceed.” (Exhibit B‐1, p. 83)
However, Terasen also states that it is “not proposing any thresholds with respect to the RIM test,
the UC test and the Participant test. In the absence of such thresholds, [it is] not comfortable
stating that an activity would proceed or not based on RIM, UC and Participant test results.”
Rather, Terasen proposes that “the overall portfolio level TRC must be maintained at 1.0 or
greater.” (Exhibit B‐4, BCUC 2.19.1)
Commission Determination
The Commission Panel accepts the portfolio level approach based on achieving a portfolio TRC
level, discussed below, of 1.0 or greater provided that program areas, initiatives or measures with
an individual TRC of less than 1.0 are proactively designed and sufficiently support social or
environmental objectives. Consequently, it is important for the components of any portfolio to be
capable of analysis on an individual basis. The Commission Panel directs that Terasen include in its
annual EEC Report to the Commission the results of the RIM, UC, TRC and Participant tests for each
proposed DSM in its portfolio, and provide justification for continuing with any measures or groups
of measures which have a TRC of less than 1.0.
![Page 170: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/170.jpg)
33
Total Resource Cost Test
Terasen proposes that the benefit‐cost tests be used to evaluate its programs as outlined in the
“California Standard Practice Manual: Economic Analysis of Demand‐Side Programs and Projects”,
which is included in Exhibit B‐1 as Appendix 12 (“the California Standard Practice Manual”).
(Exhibit B‐1, p. 82)
The California Standard Practice Manual describes the Total Resource Cost Test as a cost‐
effectiveness test which “measures the net cost of a demand‐side management program as a
resource option based on the total costs of the program, including both the participants’ and the
utility’s costs.” (Exhibit B‐1, Appendix 12, p. 18)
The “benefits” portion of the TRC test is made up of the avoided supply costs, valued at their
marginal cost, for periods when a load reduction results. These costs are “calculated using net
program savings, savings net of changes in energy use that would have happened in the absence of
the program. For fuel substitution programs, benefits include the avoided device costs and avoided
supply costs for the energy, using equipment not chosen by the program participant.” (Exhibit B‐1,
Appendix 12, p. 18)
The “costs” portion of the TRC test is made up of the program costs paid by the utility and the
participants plus any increase in supply costs for periods when load is increased. This is a broad
category, and includes all equipment costs, installation, operation and maintenance costs, cost of
removal (less any salvage value), and administration costs, regardless of who pays, less any tax
credits. For fuel substitution programs, costs also include any increase in the supply costs of the
utility providing the chosen fuel. (Exhibit B‐1, Appendix 12, p. 18)
The benefit‐cost ratio is the ratio of discounted total program benefits to discounted total program
costs over a specified period of time. A benefit‐cost ratio greater than one indicates the program is
beneficial, on the basis of the TRC test. (Exhibit B‐1, Appendix 12, p. 19)
![Page 171: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/171.jpg)
34
Intervenor Positions
BCOAPO prefers the “Societal test” over other cost‐benefit tests which it argues “do not capture
the non‐economic benefits of DSM programs”. (BCOAPO Argument, p. 4)
According to the California Standard Practice Manual, the “Societal test” is a variant of the TRC
test. It differs in that it looks at society as a whole as opposed to the utility’s service territory and
includes the effects of externalities, such as environmental implications. It also excludes tax credit
benefits and uses a “societal” discount rate.
Mr. Plunkett notes in his evidence that: “[i]ncluding external social and environmental benefits in
calculating DSM cost‐effectiveness would be to apply the societal test, not the total resource cost
(TRC) test. Other jurisdictions such as Vermont and New York apply the societal test as the
threshold determinant of DSM cost‐effectiveness. Explicitly valuing social and environmental
externalities in DSM cost‐effectiveness will lead to more efficient resource allocation – and greater
societal net benefits – than the economically inferior policy of pursuing a portfolio benefit/cost
ratio under the TRC test of 1.0.” (Exhibit C5‐7, BCUC 1.5.2)
Commission Determination
The Commission Panel acknowledges the Societal test as one which addresses a broader spectrum
of factors not included in the TRC test. While recognising that societal factors have significance,
the Commission Panel views many of these factors as being rather subjective and difficult to
measure. The Commission Panel also takes note of the DSM Regulation which will apply to Terasen
as of June 01, 2009 requiring the Commission to use, in addition to any other test it considers
appropriate, the TRC test in determining whether a demand‐side measure is cost‐effective. While
the DSM Regulation is not in effect for the purposes of this Decision, the Commission Panel does
consider the TRC test to be appropriate and adequate for the purposes of this Application and
accepts it as such.
![Page 172: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/172.jpg)
35
3.2 Free Riders
Terasen seeks certain changes to the cost‐benefit analysis undertaken in respect of EEC
expenditures, including a proposal to “. . . eliminate the requirement to include free riders in cost‐
benefit tests, as the energy and emissions reduction goals of the government are absolute goals
and do not consider free ridership effects.” (Exhibit B‐1, p. 16)
The Application defines free riders as “. . . customers who participate in a program, but would have
undertaken the same conservation actions even if the program were not offered”. Terasen’s
proposal with respect to free riders includes two tables illustrating an estimated TRC benefit for the
EEC Portfolio of $165.149 million, excluding the effects of free riders, and of $139.448 million,
including the effects of free riders, a difference of $27.701 million. Terasen’s discussion concludes
with the view that “. . . the inclusion of the effects of free riders in the cost‐benefit test for EEC
programs distorts the value of EEC programs and is counter to the objectives of the energy plan.”
(Exhibit B‐1, pp. 85‐86)
Terasen responded in some detail to Information Requests concerning Free Riders, including the
statements that “[f]ree riders are one of the most‐debated aspects of DSM cost‐benefit tests as
they are challenging to establish” and “[e]stimating free rider rates . . . is more of an art than a
science.” (Exhibit B‐2, BCUC 1.3.1)
It is Terasen’s view that “it should be the outcome [energy consumption reduction] that matters,
not the way in which it was achieved.” (Exhibit B‐1, p. 86) Terasen states: “. . . . [Government] GHG
reduction goals make no mention of net‐to‐gross ratios – in fact they could be considered “gross”
GHG reduction goals, and presumably it is gross energy savings that will be counted towards
achieving those goals. It makes sense to align gross estimations of energy savings from utility DSM
programs with government’s gross GHG reduction goals.” (Exhibit B‐2, BCUC 1.3.1)
![Page 173: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/173.jpg)
36
Terasen notes that “[w]hile it is possible that estimated free rider rates may be higher than
forecast, it is also possible that free rider rates may be lower than forecast.” (Exhibit B‐2,
BCUC 1.46.1)
Intervenor Positions
With respect to the free rider issue, BCSEA‐SCBC’s expert Mr. Plunkett states:
“[Terasen’s] proposal would depart from well‐established Commission practice of accounting for savings from program free riders. This not only distorts economic assessment but is also inconsistent with resource planning, since it will overstate how much Terasen should expect to reduce energy supply requirements. It will also distort program design, especially in appliance and equipment replacement markets where the high‐efficiency market penetration can change rapidly. Ignoring free ridership would tend to prevent adjustments in minimum qualifying efficiency levels due to a higher‐efficiency market baseline.” (Exhibit C5‐5, pp.15, 16)
Mr. Plunkett’s concluding recommendation included directing Terasen to modify its plan to
“[d]evelop market net‐to‐gross ratios for programs based on estimates of free‐ridership and
spillover effects incorporated into program planning and design.” (Exhibit C5‐5, p. 23)
BCSEA‐SCBC does, however, agree with Terasen that “the inclusion or exclusion of free riders from
the analysis makes no practical difference in evaluating the acceptability of this specific EEC plan on
an overall basis” although it notes that “failing to incorporate the free‐rider factor can distort
program design.” (BCSEA‐SCBC Argument, p. 19)
BCOAPO expresses the view that “. . . free ridership has the effect of over‐crediting EEC programs.
BCOAPO agrees that measuring free ridership is difficult, but this difficulty does not mean that it is
appropriate to set it to zero.” BCOAPO concurs with Mr. Plunkett’s views with respect to the free
rider issue. (BCOAPO Argument, p. 13)
![Page 174: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/174.jpg)
37
Commission Determination
The Commission Panel notes the position of Terasen, and the acknowledgements of BCOAPO and
BCSEA‐SCBC that, in the case of the Application, the free rider issue has no immediate practical
impact, as the portfolio level TCR results calculated either with or without inclusion of the free rider
effect is well above the ‘break‐even’ threshold of 1.0. However, the Commission Panel does
consider that this issue is likely to become a factor as the DSM initiatives of Terasen become more
fully developed and refined, and therefore should be addressed in this Decision.
The Commission Panel does not agree with Terasen’s position that “. . . the inclusion of the effects
of free riders in the cost‐benefit test for EEC programs distorts the value of EEC programs and is
counter to the objectives of the energy plan.” (Exhibit B‐1, pp. 85‐86) The Commission Panel
considers that it would be an unacceptable distortion to measure the effectiveness DSM programs
by giving credit to the programs for consumption reductions which, based Terasen’s own definition
(quoted above), would have taken place absent the incentive program.
The Commission Panel rejects Terasen’s proposal to exclude the free rider factor from program
effectiveness (TRC) calculations.
3.3 Attribution to Regulatory Changes
Terasen submits that once a proposed regulation and implementation date for minimum efficiency
standards for an appliance, building or energy system is announced by a regulating body, it be
permitted to attribute savings to market transformation programs for that particular appliance,
building or energy system in its cost benefit tests at that time. The proposal involves attributing
the savings to the program over a five year span, with adjustment for the level of Terasen’s support
for the market transformation and the level of financial contribution by others.
![Page 175: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/175.jpg)
38
Terasen submits that it is reasonable to include attribution savings in a cost‐benefit test,
particularly in light of the newly issued DSM Regulation. The Regulation permits the Commission to
include in the benefit of measures proposed a proportion of the savings resulting from the
increased market share of a regulated item because of the commencement and application of a
specified standard with respect to the regulated item. (Terasen Argument, p. 39; Exhibit B‐1, p. 12;
Exhibit B‐1, p. 16)
The attribution rates proposed by the Company, for which it is seeks approval with this Application,
for any such future regulation are outlined below.
Table 6 Attribution Rates
Regulation Year
Percentage of Savings Attributed to Program
1 50
2 40
3 30
4 20
5 10
Source: Exhibit B‐1, p. 87
Intervenor Positions
BCSEA‐SCBC’s concern with respect to the attribution concept is based on Mr. Plunkett’s evidence
that it can distort program design. As with the free‐rider factor, BCSEA‐SCBC favours the use of net‐
to‐gross ratios. (BCSEA‐SCBC Argument, p. 20)
BC Hydro submits that “Terasen Utilities' position on attribution of savings from codes and
standards to utility DSM programs is arbitrary and will result in an unrepresentative view of the
benefits (higher or lower) associated with some programs.” BC Hydro further submits that
![Page 176: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/176.jpg)
39
“[a]ttribution of savings from codes and standards should be evaluated on a case‐by‐case basis”
and that “the attribution rate should reflect the level of support for market transformation”,
arguing that Terasen’s “position on attribution goes against this approach.” (BC Hydro Argument, p.
17)
BCOAPO states “. . . the DSM regulation 4(7) allows for the Commission to include a proportion of
the benefit that, in the Commission’s opinion (not the Applicant’s) will increase market share only
between the time that a specified standard has been announced, and the time that it commences.
Any attribution beyond that will, predictably, distort program design.” (BCOAPO Argument, p. 13)
(emphasis in original)
In its Reply, Terasen notes that “BCOAPO and BCSEA‐SCBC have made submissions on attribution of
benefits. This issue is not relevant to the assessment of the proposed portfolio, as the assessment
does not include any attribution of benefits. With respect to the assessment of future portfolios,
the Terasen Utilities repeat and rely on the submissions made in paragraphs 109 to 111 of the
Initial Submissions” (which argue for the inclusion of attribution savings.)
(Terasen Reply, p. 20)
Commission Determination
The Commission Panel notes Terasen’s comment that the attribution issue is not relevant to this
Application as the assessment does not include any attribution of benefits. However, as in the case
of free riders, the Commission Panel does consider that this issue is likely to become a factor as the
DSM initiatives of Terasen become more fully developed and refined, and therefore should be
addressed in this Decision.
The Commission Panel accepts the position of BC Hydro that attribution of savings from codes and
standards should be evaluated on a case‐by‐case basis and that the attribution rate should reflect
the level of support for market transformation. The Commission Panel shares the BCSEA‐SCBC’s
![Page 177: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/177.jpg)
40
concern, as detailed in Mr. Plunkett’s evidence, that the attribution concept can distort program
design.
The Commission Panel rejects the Attribution to Regulatory Change proposal made in the
Application and refers this issue back to Terasen to redesign and resubmit with its next annual EEC
report to the Commission, giving consideration to a modified version of the Application’s
attribution proposal reflecting the provisions of the DSM Regulation which come into effect for
Terasen on June 1, 2009. The Commission Panel directs Terasen to address, in the modified
version, the matters raised by BC Hydro and BCSEA‐SCBC, and also to give consideration to factors
such as the length of time a particular program element has been operative at the time any
applicable regulation is introduced and how compatible the program initiative is with the new
regulation (e.g. if a regulation is introduced with a higher or lower threshold or standard than the
program design).
3.4 Carbon Pricing
As part of the Application, Terasen seeks an order approving certain changes to the benefit‐cost
analysis undertaken in respect of EEC expenditures, including recognizing the impact of carbon
pricing as one of the inputs to the benefit‐cost tests. (Exhibit B‐1, pp. 15‐16)
Terasen proposes that additional customer bill savings from the implementation of the tax should
be included in the benefit‐cost analysis for EEC programs. Terasen proposes that the activities
supported by the EEC Application will contribute to consumer education and provide consumers
with tools to help them reduce the impact of the proposed carbon tax on their energy
expenditures. (Exhibit B‐1, p. 41)
Terasen summarises its position with respect to the carbon tax matter in Argument as follows: “The
customers will also enjoy a benefit associated with reduced Carbon Tax costs. Customers that
install an efficient appliance or design a more efficient building as a result of Terasen's EEC
initiatives will use less gas, and will therefore pay less Carbon Tax. Therefore, the avoided Carbon
![Page 178: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/178.jpg)
41
Tax was included in the participant benefits, as noted in Appendices 11A and 11B of the
Application” [Terasen Argument, p. 21)
Commission Determination
The Commission Panel accepts Terasen’s proposal for the carbon tax reduction as an appropriate
factor to be included in computing the EEC cost‐benefit analysis.
3.5 Accountability Mechanisms
Terasen summarises its proposal for accountability mechanisms as follows:
“In this Application the Companies have recognized the need for accountability for the funds approved for EEC programs. First, any funds not spent will not be charged to the regulatory asset deferral account. Second, the Companies intend to monitor the portfolio TRC on a monthly basis, and have proposed to file an Annual EEC Report with the Commission by the end of the first quarter every year. The Report will detail program activity, expenditures, and cost‐benefit results for the previous year, as well as describe program activity and provide forecasts for the upcoming year. Third, in the event that the relief sought is granted, the Companies would form and engage an EEC stakeholder group with membership representing a broad cross section of stakeholders identified in the Application. Fourth, the Companies have indicated their intention to hold annual EEC workshops with stakeholders, at which the Companies would present updates on program progress and obtain stakeholder input on new programs and refinements to existing programs. Fifth, the Companies are proposing to develop many of the programs for the commercial sector and the DSM for Affordable Housing sector in conjunction with stakeholder advisory groups.” (Terasen Argument, p. 39)
Intervenor Positions
BCSEA‐BCSC states that they: “. . . support this [funding] approach, noting that the proposed
accountability mechanisms are designed to be more effective and efficient than having on‐going
Commission involvement in decision‐making within the portfolio during the Funding Period” and
“BCSEA‐SCBC acknowledge and support the additional accountability mechanisms proposed by
Terasen in [Terasen Argument] paragraph 112.” (BCSEA‐SCBC Argument, pp. 5, 20)
![Page 179: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/179.jpg)
42
BCOAPO argues that, should the Application be approved, an independent audit process should be
required with respect particularly to free ridership, attribution and redirection of funds. (BCOAPO
Argument, p. 14)
Commission Determination
The Commission Panel accepts Terasen’s accountability undertakings, and considers that, while the
proposal to evaluate the EEC project using the TRC test at the Portfolio level has been accepted,
TRC calculations for each program area, initiative and measure should also be included in the
accountability reporting as a means of assessing the components of the Project and their ongoing
effectiveness.
Commission Panel directs that the annual EEC Report include the following:
• TRC, RIM, UC, and Participant test calculations of DSM at the Program Area initiative and individual measure levels in addition to the total Portfolio level reporting. Reporting of the Residential & Commercial EE program areas should also be made at the New Construction and Retrofit levels.
• any inter and intra Program Area initiative funding transfers, with supporting rationale, and the impact of such transfers on the transferor and transferee Program areas, initiatives, and measures as the case may be.
• data for fuel switching programs should be tracked in a manner which allows for reporting types of fuels replaced by natural gas, including estimated GHG impacts.
The Commission Panel also directs Terasen to include in its annual EEC Report to the Commission a
discussion of its internal data gathering, monitoring and reporting control processes. The discussion
should include a description of how these processes ensure that funds expended and the statistical
results of the programs implemented are completely and accurately recorded and monitored,
including any related internal check and audit processes. The report should also discuss how
Terasen has measured or estimated the results of the EEC expenditure initiatives.
![Page 180: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/180.jpg)
43
4.0 CAPITALISATION OF INCREMENTAL EEC EXPENDITURES
Terasen’s proposed EEC expenditures are summarised and discussed in Section 2.0. Terasen
proposes to capitalise the approved incremental expenditures as a regulatory deferral account in
the year in which the expenditures are incurred, with amortisation over 20 years commencing the
year after the expenditures are made. The proposed amortisation period is addressed in Section
5.0 of this Decision.
Terasen’s total EEC expenditures for 2008 to 2010 include operating and maintenance (O&M)
expenditures for its previously approved DSM programs for 2008 and 2009. Terasen proposes to
charge those O&M costs to operations in those years, with the balance of the total EEC
expenditures being added to a new EEC deferral account. This method accounts for the impact of
the legacy DSM Operating & Maintenance expenditures having been considered in the PBR and RR
Extended Settlements for TGI and TGVI respectively. The reconciliation of the Total EEC
expenditures and the amounts expensed and deferred is illustrated in the following table.
Table 7
Deferral Reconciliation TGI TGVI
2008 2009 2010 2008 2009 2010
Total EEC
Expenditures
13,996
15,752 17,196
2,830
3,043
3,793
Expensed per Extended
Settlements
1,624
1,624 -
500
500 -
Proposed Deferral Addition
12,372
14,128
17,196
2,330
2,543
3,793
Source: Exhibit B‐1, pp. 49, 95, 97
Terasen points out that its proposed accounting treatment to capitalize the EEC expenditures is
permitted under current Canadian Institute of Chartered Accountants (CICA) accounting standards.
Terasen also notes that, effective 2011, all publicly accountable entities, including it will be
required to comply with International Financial Reporting Standards (IFRS). Terasen is of the view
![Page 181: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/181.jpg)
44
that: “. . . the proposed financial treatment of EEC funding also meets the requirements of IFRS”
and goes on to state that “[i]f, however, after further discussion and closer examination in
conjunction with auditors and other utilities, the EEC funding failed to pass these [IFRS] tests, then
[Terasen] will revisit the program to ensure that it continues in a fashion which maintains an
alignment on interests between customers, investors and government policy.” (Exhibit B‐1, pp. 81‐
82)
Intervenor Positions
BCSEA‐SCBC comments on Terasen’s “. . . proposal to capitalize incremental EEC expenditures
amortised over 20 years. BCSEA‐SCBC supports this concept, including the 20 year amortisation
period due to the life‐expectancy of gas DSM measures.” (BCSEA‐SCBC Argument, p. 17)
Commission Determination
The Commission Panel accepts Terasen’s proposal to capitalize the approved EEC expenditure to a
regulatory deferral account, and to amortitse the deferral account balances over an appropriate
time period. The related issues of the quantum of the expenditures approved and the appropriate
amortisation period(s) for the program areas are addressed in other sections of this Decision.
![Page 182: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/182.jpg)
45
5.0 AMORTISATION OF EEC EXPENDITURES
Terasen proposes to amortise its EEC expenditures, including both program, and incentive and
rebate costs, over a 20 year period, based on a calculation of the 22.5 years as the weighted
average measurable life of the proposed appliance and energy system installations. Terasen’s
weighted average calculation is based on achieving estimated volumes, mix and lives of
installations for the various measures being proposed. (Exhibit B‐1, p. 80, and Appendix 40.2)
FortisBC and BC Hydro each use 10 year amortisation periods. (Exhibit B‐2, p. 95) Terasen states:
“…research failed to uncover any examples where utilities are using or proposing amortisation
periods as long as 20 years” for DSM programs. (Exhibit B‐2, p. 97)
Commission Determination
The Commission Panel rejects the 20 year amortisation period proposed by Terasen. The
Commission panel considers the underlying forecast assumptions on which the Terasen
methodology is based to be inherently uncertain, and deserving little weight. The Commission
Panel does consider that a ten year amortisation period provides a reasonable balance, considering
both the DSM objectives and customer impact. Terasen is directed to base its amortisation of
approved EEC expenditures over periods not to exceed 10 years.
![Page 183: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/183.jpg)
46
DATED at the City of Vancouver, in the Province of British Columbia, this 16th day of April 2009.
Original signed by: A.W. KEITH ANDERSON COMMISSIONER
Original signed by: ALISON A. RHODES COMMISSIONER
![Page 184: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/184.jpg)
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, B.C. V6Z 2N3 CANADA
web site: http://www.bcuc.com
TELEPHONE: (604) 660‐4700 BC TOLL FREE: 1‐800‐663‐1385 FACSIMILE: (604) 660‐1102
BRIT ISH COLUMBIA
UTIL IT IES COMMISSION ORDER NUMBER G‐36‐09
IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. Energy Efficiency and Conservation Programs Application
BEFORE: A.W.K. Anderson, Commissioner April 16, 2009 A.A. Rhodes, Commissioner
O R D E R
WHEREAS: A. On May 28, 2008 Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. (collectively “Terasen”) filed an
application for approval of various concepts and expenditures in support of an expanded energy efficiency and conservation (“EEC”) strategy, and to capitalize incremental EEC expenditures by charging the expenditures to a regulatory asset deferral account and amortising the balance over 20 years (the “Application”); and
B. On June 3, 2008 the British Columbia Utilities Commission (“Commission”) issued a letter requesting that
interested parties register and file comments on Terasen’s proposed timetable before June 11, 2008; and C. By Order G‐102‐08 dated June 19, 2008, the Commission issued a Preliminary Regulatory Timetable which
included two rounds of Commission Information Requests and one round of Intervenor Information Requests, and requested comments from all parties on further process for reviewing the Application; and
D. In response to Order G‐102‐08, the Commission received replies from Terasen and the following Intervenors:
B.C. Ministry of Energy Mines and Petroleum Resources (“MEMPR”), British Columbia Hydro and Power Authority (“BC Hydro”), B.C. Sustainable Energy Association and the Sierra Club of British Columbia (“BCSEA‐SCBC”), the Commercial Energy Consumers Association of British Columbia (“CEC”), B.C. Old Age Pensioners’ Organization et al. (“BCOAPO”); and
E. Following its review of comments from Terasen and Intervenors, the Commission issued Letter L‐39‐08
dated September 8, 2008 ordering a second round of Intervenor Information Requests; and
![Page 185: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/185.jpg)
2
BRITISH COLUMBIA
UTILITIES COMMISSION ORDER NUMBER G‐36‐09
F. By Order G‐130‐08 dated September 18, 2008 the Commission established a Written Hearing Process and Regulatory Timetable for its review of the Application; and
G. The Written Hearing Process concluded on December 5, 2008 with the filing of Terasen’s reply submission;
and H. The Commission has reviewed and considered the evidence and submissions of Terasen and Registered
Intervenors. NOW THEREFORE pursuant to section 44.2 of the Utilities Commission Act, and subject to the specific determinations, qualifications and directions set out in the Decision issued concurrently with this Order, the Commission orders as follows: 1. The following proposed expenditures are accepted:
(a) $31.077 million for the combined Residential Energy Efficiency and Commercial Energy Efficiency programs;
(b) Expenditures for programs or initiatives directed at fuel switching away from fossil fuels with a higher
carbon content than that of natural gas to natural gas;
(c) $6.918 million for the Conservation Education and Outreach program;
(d) $3 million for Joint Initiatives; and
(e) $0.5 million for Conservation Potential Review. 2. Expenditures in the sum of $3 million for Innovative Technologies, Natural Gas Vehicles and Measurement
and $1.5 million for Trade Relations are rejected. 3. The proposed portfolio approach is accepted. 4. The Total Resource Cost test is accepted as the appropriate test for cost effectiveness.
![Page 186: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/186.jpg)
3
BRITISH COLUMBIA
UTILITIES COMMISSION ORDER NUMBER G‐36‐09
5. The proposal to exclude the free rider factor from benefit‐cost analyses is rejected. 6. The proposal for Attribution of Regulatory Changes is rejected. 7. The proposal to include carbon tax reductions in computing benefit‐cost analyses is accepted. 8. Terasen is to commence the planning process for development of an Industrial EEC program and file a report
with the Commission within 90 days of the date of the Decision. 9. The proposal for accountability mechanisms is accepted and Terasen is to file an annual report on its EEC
activities as described in the Commission’s Decision. 10. Subject to paragraph 11 below, the proposal to capitalise the approved EEC expenditure to a regulatory
deferral account and to amortise the deferral account balances is accepted. 11. The proposal to amortise EEC expenditures over a 20 year period is rejected. Terasen is directed to base its
amortisation of approved EEC expenditures over periods not to exceed 10 years. DATED at the City of Vancouver, in the Province of British Columbia, this 16th day of April 2009. BY ORDER Original signed by: A.W.K. Anderson Commissioner
Orders/G‐36‐09_TGI‐TGVI Energy Efficiency Conservation Decision
![Page 187: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/187.jpg)
APPENDIX 1 Page 1 of 6
IN THE MATTER OF
the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. Energy Efficiency and Conservation Programs Application
EXHIBIT LIST
Exhibit No. Description COMMISSION DOCUMENTS A‐1 Letter dated June 3, 2008 issuing request for comments on process and proposed
timetable
A‐2 Letter dated June 19, 2008 issuing Order No. G‐102‐08 establishing the Regulatory Timetable
A‐3 Letter dated June 20, 2008 issuing Commission Information Request No. 1
A‐4 Letter dated July 25, 2008 issuing Commission Information Request No. 2
A‐5 Letter dated September 8, 2008 establishing a Second Round of Information Requests
A‐6 Letter dated September 12, 2008 issuing Commission Information Request No. 3
A‐7 Letter dated September 18, 2008 and Order No. G‐130‐08 establishing a Written Hearing and Regulatory Timetable
A‐8 Letter dated October 22, 2008 issuing Information Request #1 to BC Hydro
A‐9 Letter dated October 24, 2008 filing Information Request No. 1 to BCSEA
APPLICANT DOCUMENTS B‐1 Letter dated May 28, 2008 filing Energy Efficiency and Conservation Programs
Application
B‐2 Letter dated July 11, 2008 filing response to the Commission’s Information Request No. 1
Updated: April 15, 2009
![Page 188: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/188.jpg)
APPENDIX 1 Page 2 of 6
Exhibit No. Description B‐2‐1 CONFIDENTIAL ‐ Letter dated July 11, 2008 filing response to the Commission’s
Information Request No. 1, Questions 9.2 and 22.1
B‐3 Letter dated August 15, 2008 filing response to the Commission’s Information Request No. 2
B‐4 CONFIDENTIAL ‐ Letter dated August 15, 2008 filing response to the Commission’s Information Request No. 2
B‐5 Letter dated August 15, 2008 filing response to BC Hydro’s Information Request No. 1
B‐6 Letter dated August 15, 2008 filing response to BCOAPO’s Information Request No. 1
B‐7 Letter dated August 15, 2008 filing response to BC Sustainable Energy Assoc & Sierra Club of Canada Information Request No. 1
B‐8 Letter dated August 15, 2008 filing response to the Commercial Energy Consumers Association of BC’s Information Request No. 1
B‐9 Letter dated August 15, 2008 filing response to the Ministry of Energy, Mines & Petroleum Resources’ Information Request No. 1
B‐10 Letter dated August 15, 2008 filing response to the Rental Owners & Managers Society of BC’s Information Request No. 1
B‐11 Letter dated August 27, 2008 filing comments on submissions from Intervenor and on the further procedural process
B‐12 WITHDRAWAL ORIGINAL B‐11, AMENDED AND REPOSTED ‐ Letter dated October 6, 2008 filing response to the Commission’s Information Request No. 3
B‐13 WITHDRAWAL ORIGINAL B‐12, AMENDED AND REPOSTED ‐ Letter dated October 6, 2008 filing response to the BCOAPO’s Information Request No. 2
B‐14 WITHDRAWAL ORIGINAL B‐13, AMENDED AND REPOSTED ‐ Letter dated October 6, 2008 filing response to the BCSEA’s Information Request No. 2
B‐15 Letter dated October 24, 2008 issuing Information Request No. 1 to BC Hydro and Power Authority
B‐16 Letter dated October 24, 2008 issuing Information Request No. 1 to BCSEA and SCBC
![Page 189: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/189.jpg)
APPENDIX 1 Page 3 of 6
Exhibit No. Description INTERVENOR DOCUMENTS C1‐1 MINISTRY OF ENERGY, MINES AND PETROLEUM RESOURCES (MEMPR) – Letter dated June 10,
2008 from Duane Chapman, Senior Regulatory Advisor, requesting participation in the proceedings
C1‐2 Letter dated July 24, 2008 filing MEMPR’s Information Request No. 1
C1‐3 Letter dated August 27, 2008 filing comments on further procedural process
C1‐4 Letter dated October 24, 2008 filing comment for consideration
C2‐1 BRITISH COLUMBIA HYDRO & POWER AUTHORITY (BC HYDRO) – Online web registration
received June 10, 2008 filing request for Intervenor status
C2‐2 Letter dated June 11, 2008 filing comments on the regulatory review process and timetable
C2‐3 Letter dated July 25, 2008 filing Information Request No. 1 to Terasen
C2‐4 Letter dated August 27, 2008 filing comments on further procedural process
C2‐5 Letter dated September, 2008 filing request for an extension for filing Intervenor Evidence
C2‐6 Letter dated October 14, 2008 filing BC Hydro’s Evidence
C2‐7 Letter dated November 7, 2008 filing responses to the Commission’s and Terasen Utilities’ Information Request No. 1
C3‐1 RENTAL OWNERS AND MANAGERS SOCIETY OF BC (ROMS) – Letter dated June 10, 2008
from Al Kemp, CEO, requesting Intervenor status
C3‐2 Letter dated July 21, 2008 filing Information Request No. 1 to Terasen
C4‐1 BRITISH COLUMBIA OLD AGE PENSIONERS ORGANIZATION (BCOAPO) ‐ Letter dated June 11,
2008 request for Registered Intervenor status for Leigha Worth, Eugene Kung, and James Wightman of Econalysis Consulting
C4‐2 Letter dated June 11, 2008 filing comments on procedural matters
![Page 190: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/190.jpg)
APPENDIX 1 Page 4 of 6
Exhibit No. Description C4‐3 Letter dated July 25, 2008 filing Information Request No. 1 to Terasen
C4‐4 Letter dated August 27, 2008 filing comments on further procedural process
C4‐5 Letter dated September 15, 2008 filing Information Request No. 2 to Terasen
C5‐1 BC SUSTAINABLE ENERGY ASSOCIATION (BCSEA) AND THE SIERRA CLUB OF CANADA (BRITISH
COLUMBIA CHAPTER) (SCCBC) ‐ Letter dated June 11, 2008 request for Registered Intervenor status
C5‐2 Letter dated July 25, 2008 filing Information Request No. 1 to Terasen
C5‐3 Letter dated August 27, 2008 from William J. Andrews, legal counsel, filing comments on further procedural process
C5‐4 Letter dated September 15, 2008 filing Information Request No. 2 to Terasen
C5‐5 Letter dated October 14, 2008 filing BCSEA et al Evidence
C5‐6 Letter dated October 16, 2008 filing Errata to Evidence (Exhibit C5‐5)
C5‐7 Letter dated November 7, 2008 filing response to the Commission’s Information Request
C5‐8 Letter dated November 7, 2008 filing response to Terasen’s Information Request with worksheet
C6‐1 FORTISBC INC. ‐ Letter dated June 12, 2008 from Joyce Martin, filing request for
Registered Intervenor status
C7‐1 PACIFIC NORTHERN GAS LTD. (PNG) – Online web registration received June 18, 2008 from Craig Donohue filing request for Intervenor status
C8‐1 COMMERCIAL ENERGY CONSUMERS ASSOCIATION OF BC (CECBC) ‐ Letter dated June 18,
2008 from Christopher Weafer, Owen Bird, legal counsel, filing request for Registered Intervenor status and comments
C8‐2 Letter dated July 25, 2008 filing Information Request No. 1 to Terasen
C8‐3 Letter dated August 27, 2008 from Christopher Weafer, Owen Bird, legal counsel, filing comments on further procedural process
![Page 191: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/191.jpg)
APPENDIX 1 Page 5 of 6
Exhibit No. Description C9‐1 DIRECT ENERGY MARKETING LIMITED (DEML) ‐ Online web registration dated June 25,
2008 from Chad Painchaud, filing request for Registered Intervenor status
LETTERS OF COMMENT E‐1 CANADIAN MORTGAGE AND HOUSING CORPORATION (CMHC – SCHL) ‐ Letter of Comment
dated June 16, 2008, faxed from Lance Jakubec, Senior Research Consultant, in support of the application
E‐2 CITY GREEN SOLUTIONS – Letter of Comment received June 17, 2008 from Peter Sundberg, Executive Director
E‐3 LIGHT HOUSE SUSTAINABLE BUILDING CENTRE ‐ Letter of Comment received June 17, 2008 from Helen Goodland
E‐4 CANADIAN HOME BUILDERS’ ASSOCIATION (VICTORIA) (CHBA)‐ Letter of Comment received June 18, 2008 from Casey Edge, Executive Officer
E‐5 HEARTH, PATIO & BARBECUE ASSOCIATION OF CANADA (HPBAC) ‐ Letter of Comment received June 18, 2008 from Tony Gottschalk, Manager
E‐6 FRASER BASIN COUNCIL – Letter of Comment received June 20, 2008 from Bob Purdy, Director, Corporate Development & Communications
E‐7 PACIFIC RESOURCE CONSERVATION SOCIETY – Letter of Comment received June 24, 2008 from Darla Simpson, Executive Director
E‐8 CANADIAN HOME BUILDERS’ ASSOCIATION (KAMLOOPS) (CHBA) ‐ Letter of Comment dated June 25, 2008 from Patsy Bourassa, Executive Officer
E‐9 URBAN DEVELOPMENT INSTITUTE – PACIFIC REGION (UDI) ‐ Letter of Comment dated July 3, 2008 from Jeff Fisher, Deputy Executive Director
E‐10 FRASER VALLEY HOME BUILDERS ASSOCIATION (FVHBA) ‐ Letter of Comment dated July 8, 2008 from Jan Field, Executive Officer
E‐11 CANADIAN MANUFACTURERS & EXPORTERS – BC DIVISION ‐ Letter of Comment dated July 5, 2008 from Craig Williams, Vice President
E‐12 NATURAL RESOURCES CANADA ‐ Letter of Comment dated July 9, 2008 from John Cockburn, Director, Office of Energy Efficiency
![Page 192: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/192.jpg)
APPENDIX 1 Page 6 of 6
Exhibit No. Description E‐13 CANADIAN HOME BUILDERS ASSOCIATION OF BC (CHBA BC) ‐ Letter of Comment dated July
8, 2008 from M.J. Whitemarch, Chief Executive Officer
E‐14 CITY OF NANAIMO ‐ Letter of Comment dated July 10, 2008 from Gary Korpan, Mayor
E‐15 CITY OF VICTORIA ‐ Letter of Comment dated July 15, 2008 from Alan Lowe, Mayor
E‐16 CITY OF LANGFORD ‐ Letter of Comment dated July 22, 2008 from Rob Buchan, Clerk‐Administrator
E‐17 TOWN OF LADYSMITH – Letter of Comment dated July 24, 2008 from Mayor Robert Hutchins
E‐18 CORPORATION OF THE VILLAGE OF CUMBERLAND ‐ Letter of Comment dated July 18, 2008 from Christine Makarowski, Corporate Services Manager
E‐19 THE CORPORATION OF THE CITY OF NORTH VANCOUVER ‐ Letter of Comment dated July 29, 2008 from Darrell Mussatto, Mayor
E‐20 THE CORPORATION OF THE DISTRICT OF WEST VANCOUVER ‐ Letter of Comment dated July 30, 2008 from Clay Nelson, Manager
E‐21 BROOK + ASSOCIATES INC. ‐ Letter of Comment dated July 2, 2008 from Blair Chisholm, Planning Manager
E‐22 CITY OF POWELL RIVER ‐ Letter of Comment dated July 30, 2008 from Mair Claxton, City Clerk
E‐23 CORPORATION OF DELTA ‐ Letter of Comment dated July 30, 2008 from Lois E. Jackson, Mayor
E‐24 BC CHAMBER OF COMMERCE ‐ Letter of Comment dated August 11, 2008 from John R. Winter, President & CEO
E‐25 CANADIAN GAS ASSOCIATION ‐ Letter of Comment dated August 14, 2008 from Michael Cleland, President & CEO
E‐26 CITY OF SURREY ‐ Letter of Comment dated August 11, 2008 from Dianne L. Watts, Mayor
E‐27 BUSINESS COUNCIL OF BRITISH COLUMBIA ‐ Letter of Comment dated August 15, 2008 from Virginia Greene, President & CEO
![Page 193: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/193.jpg)
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, B.C. V6Z 2N3 CANADA
web site: http://www.bcuc.com
BRIT I SH COLUMBIA
UTIL I T I ES COMMISS ION ORDER NUMBER G‐141‐09
TELEPHONE: (604) 660‐4700 BC TOLL FREE: 1‐800‐663‐1385 FACSIMILE: (604) 660‐1102
. . . /2
IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
An Application by Terasen Gas Inc. for Approval of 2010 and 2011 Revenue Requirements and Delivery Rates
BEFORE: A.W.K. Anderson, Panel Chair/Commissioner D.A. Cote, Commissioner November 26, 2009 M.R. Harle, Commissioner
O R D E R
WHEREAS: A. On June 15, 2009 Terasen Gas Inc. (“Terasen Gas”) filed an application for approval of interim and permanent delivery
rates effective January 1, 2010 and January 1, 2011 (the “Application”) pursuant to sections 59 to 61 and 89 of the Utilities Commission Act (the “Act”), representing an increase of 5.3 percent for 2010 and 4.1 percent for 2011; and
B. Terasen Gas sought other approvals in the Application, including Orders pursuant to sections 59 to 61 of the Act, approving Tariff changes effective January 1, 2010 for Compression and Refueling and Transportation Services for Natural Gas Vehicles and economic models for evaluating biogas projects and alternative energy extensions for geo‐exchange, solar thermal and district energy systems to complement its core natural gas business; and
C. The interim and permanent delivery rates sought in the Application are subject to adjustment for any changes in
Terasen Gas’ allowed return on equity and capital structure; and D. Terasen Gas proposed a written hearing process to address the Application but was open to a Negotiated Settlement
Process (“NSP”) addressing all of the issues; and E. In accordance with Commission Order G‐76‐09, a Workshop was held July 6, 2009 for a review of the Application and a
first Procedural Conference was held on July 15, 2009. Commission Order G‐89‐09 established the requirement for a second Procedural Conference, held on September 25, 2009 to address the regulatory process and preliminary timetable; and
F. At the second Procedural Conference, the Commission Panel received submissions on the principal issues arising from
or related to the Application, process options for the review of the Application, location of the proceedings and other matters that would assist the Commission’s efficient review of the Application. The primary issues raised were whether a separate Certificate of Public Convenience and Necessity (“CPCN”) review was required for the Alternative Energy Solutions proposed in the Application and whether the regulatory process should be in the form of an oral or written hearing or NSP; and
![Page 194: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/194.jpg)
2
ORDERS/G‐141‐09_TGI 2010‐2011RR NSP
BRIT I SH COLUMBIA
UTIL IT I ES COMMISS ION ORDER NUMBER G‐141‐09
G. The Intervenors expressed a wish to avoid a separate CPCN process for the Alternative Energy Solutions and all Intervenors supported an NSP for the review of the Application. The Intervenors submitted that, in the event that the NSP is not successful in resolving all issues, an Oral Public Hearing could be ordered by the Commission. Terasen Gas requested that, if an Oral Public Hearing is established, it be limited in scope; and
H. Terasen Gas proposed that its application for interim rate approval be deferred until the end of November 2009; and I. By Order G‐119‐09, the Commission Panel established a regulatory timetable for an NSP commencing October 21,
2009. The settlement discussions concluded on November 3, 2009; and J. On November 13, 2009, the Negotiated Settlement Agreement (“NSA”), together with the Letters of Support received
from the participants in the NSP, the Letter of Comment from Commission Staff and Terasen Gas’ response to the Letter of Comment (“Settlement Package”), was made public and circulated to the Commission Panel; and
K. The Settlement Package was also distributed to Registered Intervenors who did not participate in the NSP (“Other
Intervenors”). The Other Intervenors were requested to provide their comments on the Settlement Package to the Commission by November 20, 2009. The Commission Panel received no comments from Other Intervenors regarding the Settlement Package; and
L. The Commission Panel having reviewed the proposed NSA and the comments related thereto and noting the support of
all parties to the proposed Negotiated Settlement Agreement, in which only sections 12(a) and (b) are severable, subject to the implementation of section 12.2, considers that approval is warranted.
NOW THEREFORE pursuant to sections 59 to 61 and 89 of the Act the Commission orders as follows: 1. The Negotiated Settlement Agreement attached as Appendix A to this Order is approved.
2. TGI is to file an amended Summary of Rates and Bill Comparison schedules based on the Negotiated Settlement
Agreement. 3. The Commission will accept, subject to timely filing by TGI, amended permanent Gas Tariff Rate Schedules in
accordance with the terms of this Order. TGI is to provide notice of the permanent rates to customers via a bill message, to be reviewed in advance by Commission Staff to confirm compliance with this Order.
DATED at the City of Vancouver, In the Province of British Columbia, this 26th day of November 2009. BY ORDER Original signed by: A.W.K. Anderson Panel Chair/Commissioner Attachment
![Page 195: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/195.jpg)
APPENDIX A to Order G-141-09 Page 1 of 110
![Page 196: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/196.jpg)
– 1 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
IN THE MATTER OF
the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
An Application by Terasen Gas Inc. for Approval of 2010 and 2011 Revenue Requirements and Delivery Rates
Negotiated Settlement Process
WHEREAS:
A. On June 15, 2009, Terasen Gas Inc. (“TGI”) filed its 2010 and 2011 Revenue Requirements Application, which was supplemented by a filing on July 9, 2009 and amended by filings on August 14 and September 18, 2009 (the “Application”); and
B. Amongst other things, the Application sought:
1. An order pursuant to sections 59 to 61 of the Utilities Commission Act (the “Act”), approving delivery rates for all non-bypass customers effective January 1, 2010 and January 1, 2011, representing an increase of 5.3 percent for 2010 and an additional 4.1 percent for 2011, subject to changes in TGI’s allowed return on equity (“ROE”) and capital structure; and
2. An order pursuant to section 44.2 of the Act approving an expenditure schedule for the continuation in 2011 of TGI’s residential and commercial Energy Efficiency and Conservation ("EEC") funding, as well as new EEC funding for 2010 and 2011 for interruptible industrial programs and innovative technologies; and
3. New tariff offerings and economic tests for Compression and Refuelling and Transportation Services for Natural Gas Vehicles ("NGV"), geo-exchange, solar thermal and district energy systems and a pilot program for Biogas; and
C. A complete listing of the relief sought by TGI in the Application was included in Section D (pages 513-516)1 of the Application; and
D. In accordance with Commission Order No. G-76-09 issued on June 19, 2009, a Workshop was held on July 6, 2009 for a review of the Application, a procedural conference was held on July 15, 2009, and TGI responded to two rounds of Information Requests; and
E. In accordance with Commission Order No. G-89-09 issued on July 20, 2009, a second procedural conference was held on September 25, 2009; and
1 Page 516 of the Application was amended on September 18, 2009.
APPENDIX A to Order G-141-09 Page 2 of 110
![Page 197: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/197.jpg)
– 2 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
F. On October 2, 2009, the Commission issued Order G-119-09 establishing a Negotiated Settlement Process (“NSP”) for the Application; and
G. The Parties to the NSP were TGI, British Columbia Old Age Pensioners et al. (“BCOAPO”), Commercial Energy Consumers Association of British Columbia (“CEC”), Teck Coal Ltd. (“Teck”), and the Ministry of Energy, Mines and Petroleum Resources (“MEMPR”) (collectively referred to in this Agreement as the “Parties”); and
H. At the outset of the NSP on October 21, 2009, Commission Staff provided the Parties with a document prepared by the Commission Panel titled “Issues of Particular Concern to the Commission Panel”, a copy of which is appended as Appendix 1 to this Agreement; and
I. The NSP was held on October 21-23, 30, and November 3 and 4, 2009; and
J. The Parties have negotiated in good faith to achieve a compromise settlement, reflected in this Agreement, of the issues raised by the Application, and the Commission Panel document referenced in recital H above, and further consider the Agreement reached to be fair, just and reasonable; and
K. This Agreement consists of four Parts:
Part I includes general provisions;
Part II includes the items agreed to that differ from what was requested in the Application;
Part III includes the items agreed to that remain as proposed by TGI in the Application; and
Part IV includes revised financial schedules reflecting all items set out in the Agreement.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS
PART I – GENERAL
1. Agreement a Product of Compromise The Parties recognize and emphasize that this Agreement is the product of compromise on the part of all Parties, yielding an overall package that the Parties consider to be fair, just and reasonable. The Parties agree that any compromises resulting from this Agreement are without prejudice to the Parties’ ability to take different positions after 2011 and without prejudice to the Parties right to intervene in any applications contemplated in or resulting from this Agreement.
APPENDIX A to Order G-141-09 Page 3 of 110
![Page 198: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/198.jpg)
– 3 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
2. Whole Agreement Unless otherwise stated in this Agreement, portions of this Agreement cannot be removed or changed by the Commission without nullifying the whole Agreement.
3. TGI to Manage Business The Parties agree that TGI will have the discretion to manage its business and determine how best to allocate the overall O&M and Capital expenditures stipulated in this Agreement.
4. Final IFRS Rate-regulated Activity Standard The Parties acknowledge that this Agreement is predicated on the Final IFRS Rate-regulated Activity Standard permitting the financial accounting treatment contemplated in this Agreement in the manner outlined in the current Exposure Draft on Rate-regulated Activities. The Parties agree that if, in TGI’s opinion, the Final IFRS Rate-regulated Activity Standard differs from the current Exposure Draft on Rate-regulated Activities so as not to permit the financial accounting treatment contemplated in this Negotiated Settlement Agreement, which among other things anticipates the recognition of regulatory assets and liabilities for external reporting purposes, then TGI is at liberty to apply to the Commission during the period of this Agreement for a determination of that issue, and to seek changes in the regulatory treatment contemplated in this Agreement to accord with the Final IFRS Rate-regulated Activity Standard, with the resulting impacts flowed through into rates commencing in 2011.
PART II – AGREED CHANGES FROM THE APPLICATION
5. Delivery Rates The Delivery rate changes for 2010 and 2011 that would flow from this Agreement would be a decrease of 1.73 per cent in 2010 and an increase of 3.93 per cent in 2011, subject to being updated as contemplated in this Agreement. Issue No. 5 in the Commission Panel’s “Issues of Particular Concern to the Commission Panel” stated:
“2010 Rate Changes – in the event that a 2010 rate reduction were to occur as a result of negotiations, the current rates should remain unchanged and place the revenue surplus into a deferral account to apply against 2011 and future rate increases with a phase in amortization that strives for rate stability.”
Therefore, the Parties agree that this Agreement will not result in a decrease in delivery rates for 2010 and that the 2010 forecast revenue surplus will be recorded in a 2010 Revenue Surplus Deferral Account and be applied to offset any forecast increase in delivery rates in 2011. The forecast 2010 revenue surplus of $9.2 million per Schedule 1 included in Part IV of this Agreement, is recorded in the 2010 Revenue Surplus Deferral Account, which
APPENDIX A to Order G-141-09 Page 4 of 110
![Page 199: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/199.jpg)
– 4 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
will be amortized in 2011 to reduce the 2011 forecast revenue deficit. The 2010 Revenue Surplus Deferral Account will be included in Rate Base. However, the delivery rates for 2010 and 2011 will be updated to reflect changes in TGI’s allowed ROE and capital structure flowing from the Commission’s decision in TGI’s concurrent ROE and Capital Structure Application2, or as adjusted from time to time by the Commission. Nothing in this Agreement precludes TGI from applying to the Commission in 2010 or 2011 for changes to its allowed ROE and capital structure.
6. Service Quality Indicators The Parties agree that TGI will report on the same SQI’s as set out in the 2004-2007 PBR Agreement and the 2008-2009 extension thereof through quarterly postings on TGI’s website.
7. Customer Additions Forecast The Parties agree that TGI’s net Residential customer additions forecast is revised to be 5,952 in 2010 (increase of 352 from Application3) and 6,166 in 2011 (increase of 316 customers from the number specified in the Application), reflecting the updated published CMHC Q3 2009 forecast, and TGI’s year end 2009 number of customers has additionally been updated to be 835,862. Customer additions for the other rate classes remain unchanged from what was specified in the Application4.
8. Use Per Customer Rates The Parties agree that the Residential annual use per customer is revised upward from 89.7 GJ to 91.7 in 2010 and from 88.3 to 90.3 in 2011. Use per customer rates for the other rate classes remain unchanged from what was included in the Application (other than Industrial as set out in item 9).
9. Industrial Demand Forecast The Parties agree that the industrial demand forecast is revised upwards from what was requested in the Application based on responses TGI has since received from the 2009 Industrial Survey and actual year-to-date demand. The revised industrial demand forecast includes forecast demand of 46.5 PJ and 46.5 PJ (compared to 43.4 PJ and 43.3 PJ as presented in the Application) for 2010 and 2011 respectively.
2 Filed jointly by the Terasen Utilities [TGI, Terasen Gas (Vancouver Island) Inc. and Terasen Gas (Whistler) Inc.] on
May 15, 2009. 3 See Application, page 276 4 IBID
APPENDIX A to Order G-141-09 Page 5 of 110
![Page 200: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/200.jpg)
– 5 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
10. Inclusion of SCP Capacity in MCRA The Parties agree that TGI will continue for 2010 and 2011 to include in the MCRA the $3.6 million representing the annual cost of Southern Crossing Pipeline (SCP) capacity, because the benefits and use of the SCP capacity are used by Core Market Customers (Rate Schedules 1-7).
11. Energy Efficiency and Conservation (“EEC”) Funding for 2010
The Parties agree as follows in respect of the EEC funding sought by TGI for 2010:
(a) TGI will reallocate from residential and commercial EEC programs an additional $1.6 million from the amount approved for 2010 in the EEC Decision5 to low income and rental housing programs. This brings the total for low income and rental housing programs to $2.4 million for 2010.
(b) EEC funding for industrial interruptible programs for 2010 will be $435,000, which is the
amount requested by TGI in the Application. (c) EEC funding for innovative technologies will be $2.3 million for 2010, which is the
amount requested by TGI in the Application.
(d) All agreed to EEC expenditures will be considered and evaluated within the existing portfolio, and be subject to the same financial treatment, as per the Commission’s EEC Decision dated April 16, 2009 (Application, page 514, Item 6). However, Innovative Technology programs will be managed by TGI as a separate segment of the overall portfolio to have a weighted average Total Resource Cost (“TRC”) of 1.0 or more. TGI will consult with stakeholders on the practical application of the weighted average TRC through the EEC Advisory Committee.
12. EEC Funding for 2011
12.1 The Parties agree as follows in respect of the EEC funding sought by TGI for 2011:
(a) EEC funding for residential and commercial programs for 2011 will be $23.075 million, which is the amount requested by TGI in the Application.
(b) TGI will reallocate from 2011 residential and commercial EEC funding ($23.075M for 2011) an additional $1.6 million (from the $0.8 million included in the Application) to low income and rental housing programs. This brings the total for low income and rental housing programs to $2.4 million for 2011.
5 Decision and Order No. G-36-09 dated April 16, 2009 in the TGI-TGVI Energy Efficiency and
Conservation Application
APPENDIX A to Order G-141-09 Page 6 of 110
![Page 201: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/201.jpg)
– 6 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
(c) EEC funding for industrial interruptible programs will be $1.875 million for 2011, which is the amount requested by TGI in the Application.
(d) EEC funding for innovative technologies will be $4.669 million for 2011, which is the amount requested by TGI in the Application.
(e) All agreed to EEC expenditures will be considered and evaluated within the existing
EEC portfolio, and will be subject to the same financial treatment, as per the Commission’s EEC Decision dated April 16, 2009 (Application, page 514, Item 6). However, Innovative Technology programs will be managed by TGI as a separate segment of the overall portfolio to have a weighted average TRC of 1.0 or more. TGI will consult with stakeholders on the practical application of the weighted average TRC through the EEC Advisory Committee.
(f) TGI will report to the Commission on industrial interruptible and innovative technology programs as part of TGI’s annual report on EEC activities required under the EEC Decision.
The Parties offer the following rationale for the agreed upon 2011 EEC funding. All Parties agree that it is important to maintain EEC funding levels in 2011 to allow customers to have continued access to EEC programs and incentives. The residential and commercial EEC programs relating to the $23.075 million funding in 2011 on a portfolio basis in aggregate have a TRC of one or more. This means that, from a resource perspective and on a portfolio basis, these programs are expected to yield favourable results for customers. The predictability and continuity of these programs on a sustained basis is critical to their overall success. Issue No. 1 in the Commission Panel’s “Issues of Particular Concern to the Commission Panel” stated:
“EEC Program – TGI is to provide results of programs approved by the EEC Decision and expectations for new programs before the Commission Panel will approve additional EEC program funding.”
There are practical difficulties associated with the approach identified by the Commission Panel. They include the following: • As per the EEC Decision (Order No. G-36-09), TGI will be reporting 2009 activities
and results by no later than March 31, 2010. This report will also outline the forecasted activities and programs for 2010. Recognizing the timing of the recent EEC Decision and its current implementation in the Fall of 2009, the EEC Report for 2009 results will give the Commission and stakeholders another check point to validate the level of spend for 2011. However, there is expected to be very little additional information on the results of programs available in March 2010 than exists presently and is included in the evidentiary record of this proceeding. TGI’s
APPENDIX A to Order G-141-09 Page 7 of 110
![Page 202: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/202.jpg)
– 7 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
EEC programs only completed start up phase in the Fall of 2009. It typically takes longer than 6-8 months to achieve momentum with EEC programs. There will be no information available in March 2010 on results for industrial programs or programs relating to innovative technologies initiated in 2010 as a result of this Agreement. The information that the Commission Panel appears to desire will be more likely included in TGI’s 2010 results report to be filed in March 2011.
• Employees responsible for the programs at TGI, whose salaries are funded from EEC funding, will face the prospect of losing their jobs in 2011. This could lead to employee retention issues. Employee turnover issues may disrupt the program implementation progress and potentially be more costly if EEC activity is ceased and later resumed.
• Programs will need to begin winding down in advance of 2011 if the 2011 funding is not approved. For example, programs will need to have an end date of December 31, 2010 which may not yield positive results since programs will be winding up in the middle of the heating season.
12.2 The Parties agree that the Commission may sever Section 12.1 (a) and (b) above from
this Agreement, with the remainder of this Agreement remaining in force and effect. If the Commission severs Section 12.1 (a) and (b), then the Parties agree that the following provisions take effect:
(a) The Residential and Commercial EEC programs totaling $23.075 million in 2011
will be removed from the EEC expenditure forecast and the revenue requirements for 2011. (If 12.2 takes effect, the financial schedules in Part IV of this Agreement and the revenue requirements resulting from this Agreement will be revised to reflect this).
(b) The Parties agree that the first annual report on EEC Activities, which was due to be filed on March 31, 2010 pursuant to Order No. G-36-09, can be filed on or before June 30, 2010. Concurrent with that report, TGI will file an application with the anticipation of a decision within 120 days after filing. The application will include requests for:
i. approval of the above EEC funding for 2011;
ii. approval of the same financial treatment approved in the EEC Decision; and
iii. approval for the continuation of the portfolio approach and assessment methodology as approved in the EEC Decision.
13. Alternative Energy Solutions Alternative Energy Solutions (“AES”) means Geo-exchange, Solar-thermal and District Energy Systems as those terms are described in the Application.
APPENDIX A to Order G-141-09 Page 8 of 110
![Page 203: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/203.jpg)
– 8 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
Natural Gas service taken in combination with AES will be charged under TGI’s natural gas rates. The Parties agree that the costs incurred by TGI to provide AES should not be recovered as part of natural gas service rates, and visa versa. The Parties agree that TGI’s proposed New Energy Solutions Deferral Account, attracting AFUDC, is an appropriate mechanism to address allocation issues as between TGI’s gas customers and TGI’s AES customers. Therefore, the Parties agree that the new Energy Solutions Deferral Account will remain in effect pending a future rate design application at an unspecified future date after 2011 and will capture and record the following (plus AFUDC) to be recovered from AES customers: (a) Direct costs associated with AES projects as outlined on pages 267-268 of the
Application, including cost of design, equipment, etc. constructing and financing; and
(b) Sales and marketing O&M and other development costs will be directly charged to the deferral account by time sheets or other direct charge (estimated at $1.0 million in 2010 and $1.5 million in 2011, representing a portion of the agreed upon Gross O&M reduction from gas customers of $4.0 million in 2010 and $5.5 million in 2011); and
(c) An appropriate overhead allocation, which the parties have agreed will be $500,000 in each of 2010 and 2011 (representing a portion of the agreed upon Gross O&M reduction from gas customers of $4.0 million in 2010 and $5.5 million in 2011).
Revenues received from customers for all AES projects, which are based on contracts approved by Commission will be recorded in the AES deferral account.
The risk of non-recovery of amounts in the New Energy Solutions Deferral Account will not be borne by natural gas ratepayers. The Parties agree that any debit balance in the New Energy Solutions Deferral Account will not be recovered through natural gas rates and any credit balance will not be applied to reduce natural gas rates. In evaluating AES projects, TGI will apply the economic test outlined in the Application. The Parties agree that the proposed GT&C (Section 12A – Alternative Energy Extensions) are acceptable. Pursuant to the Utilities Commission Act, within the Alternative Energy class of service, project-specific contracts with AES customers will be filed with the Commission for acceptance as a rate, at which time the Commission may review and adjust the economic test and GT&C Section 12A – Alternative Energy Extensions. The CPCN threshold of $5 million applies to AES projects brought forward in 2010 and 2011. The Parties agree that it is premature to address issues relating to the gas load and gas consumption profiles of AES projects that incorporate a natural gas component. Such issues are appropriately addressed in a future rate design application, once TGI has sufficient AES customers that take gas so as to provide reliable information on gas load and gas consumption profiles.
APPENDIX A to Order G-141-09 Page 9 of 110
![Page 204: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/204.jpg)
– 9 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
TGI will capture costs and revenue on a project specific basis and will report on AES projects as part of the next Revenue Requirements application.
14. Natural Gas for Vehicles (“NGV”) The Commission Issue No. 2 in the Commission Panel’s “Issues of Particular Concern to the Commission Panel” stated:
“Natural Gas Vehicles (“NGV”) – if NGV is to proceed why should the natural gas ratepayer fund this initiative rather than Terasen’s non-regulated businesses or the competitive market?”
The Parties agree: (a) NGV Rate Schedule 26 - NGV Transportation Service should be approved as filed.
(b) The marketing costs in support of NGV that are included in the revenue requirements Application are appropriately recoverable in 2010 and 2011 rates.
(c) Upon acceptance of this Agreement by the Commission, TGI withdraws its request in this Application for the following:
i. Rate Schedule 6C NGV Compression and Refueling Service and 6A NGV Refueling Service; and
ii. the Compression Service (“CS”) Test; and
iii. NGV non-rate base deferral account.
The Parties acknowledge that these requests are being withdrawn by TGI to facilitate a settlement on other issues presented in this Application. The Parties agree that TGI’s withdrawal of its requests regarding NGV is without prejudice to TGI’s right to bring forward similar requests in 2010 or 2011 or otherwise in the future. The Parties acknowledge that TGI intends to develop this area of business and that TGI anticipates it will bring forward applications on NGV projects to the Commission on a case-by-case basis during the term of this Agreement and in future years. The Parties agree that TGI is at liberty to do so.
15. Biogas Issue No. 3 in the Commission Panel’s “Issues of Particular Concern to the Commission Panel” stated:
“Biogas – to be reviewed by a CPCN which demonstrates market uptake of customers that are willing to pay the full cost.”
APPENDIX A to Order G-141-09 Page 10 of 110
![Page 205: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/205.jpg)
– 10 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
The Parties agree that, upon acceptance of this Agreement by the Commission, TGI withdraws its requests in this Application related to Biogas. The Parties acknowledge that these requests are being withdrawn to facilitate a settlement on other issues presented in this Application. The Parties agree that TGI will bring forward an application (the “Biogas Application”) during the test period that will: (a) Address the economic assessment model; and
(b) Provide Biogas rates (including green rate, transportation rate, etc.); and
(c) Provide for recovery of costs associated with providing Biogas service. TGI may include in the Biogas Application any Biogas Projects under development at that time. TGI is, however, not precluded from applying for Commission approval in respect of individual Biogas Projects at any time, either prior to the Biogas Application or afterwards.
16. CPCN Threshold Issue No. 6 in the Commission Panel’s “Issues of Particular Concern to the Commission Panel” stated:
“CPCN threshold – stay at $5 million.” The Parties accordingly agree that the CPCN threshold will remain at $5 million for 2010 and 2011. TGI’s Category B Capital Expenditures forecast for the forecast period will be revised to reflect this change (please see item 18 below).
17. Category A Capital The Parties agree that Category A Capital will be $43.3 million for 2010 and $46.0 million for 2011, reflecting the proposed amount updated to reflect the published CMHC Q3 2009 forecast, and TGI’s adjusted re-forecasted year end net customer addition numbers (as set out in item 7).
18. Category B and Category C Capital As a consequence of the CPCN threshold being established at $5 million for 2010 and 2011 (see item 16 above), TGI will file CPCN applications for the Huntingdon and Kootenay Crossing projects identified in TGI’s Application. The Category B Capital will consequently be reduced by $2.2 million in 2010 and $16.0 million in 2011. TGI will seek deferral treatment for 2011 of the capital costs associated with those projects at the time of filing the CPCN Applications. The Parties agree that Category B and C Capital will be reduced by a total of $3 million in each of 2010 and 2011. For the purposes of the determination of revenue requirements
APPENDIX A to Order G-141-09 Page 11 of 110
![Page 206: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/206.jpg)
– 11 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
with this Application, Category B Capital has been reduced by $1 million and Category C IT Capital has been reduced by $2 million. The revised Category B Capital Expenditures, reflecting both the CPCN adjustment and the $1 million reduction in spending, are now $17.4 million in 2010 and $14.9 million in 2011. The revised Category C Capital Expenditures, reflecting the $2 million IT Capital reduction, are now $32.8 million in 2010 and $32.7 million in 2011.
19. Gross O&M (to be recovered from gas customers) The Parties agree that the proposed gross O&M, before shared service allocations, recoverable from gas customers for 2010 and 2011 is reduced from the amounts included in the original Application by $4.0 million in 2010 and a further $1.5 million (for a total impact of $5.5 million) in 2011. This reduction of Gross O&M will result in a reduction in the pool of costs subject to the Shared Services Agreement with TGVI and with TGW by an estimated $3.3 million in 2010 and $4.8 million in 2011. Therefore, and as discussed in Item 21, the final Gross O&M to be included in TGI’s cost of service for 2010 and 2011 will be determined based on the Shared Services and Corporate Services allocations determined in the TGVI RRA.
20. Interest Expense The Parties agree that TGI will update its assumptions around both the issuance of long-term debt and the associated interest rates. TGI has determined that Long-term Debt Series 25 will not be issued December 1, 2009 as originally forecast and is now anticipated to be issued April 1, 2010. In addition, the interest rate forecast for Long-term Debt Series 26, to be issued July 1, 2011, has been revised downwards from 6.13 per cent to 5.65 per cent.
21. Shared Services/Corporate Services Allocations The 2010 and 2011 revenue requirements stipulated in this Agreement are based on TGI’s proposed Shared Services and Corporate Services allocation for 2010 and 2011. The Parties acknowledge, however, that the final amount allocated to TGI for Shared Service and Corporate Services cannot be confirmed until the Commission determines the TGVI RRA. The Parties agree that if the amounts allocated to TGVI for Shared Services and/or Corporate Services for 2010 or 2011 changes from that agreed to in this Agreement as a result of a settlement or decision in the concurrent TGVI RRA proceeding, then the amount(s) allocated to TGI and its revenue requirements for 2010 and 2011 will be updated by a corresponding amount to ensure recovery of all of the combined Corporate Services and Shared Services costs.
APPENDIX A to Order G-141-09 Page 12 of 110
![Page 207: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/207.jpg)
– 12 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
22. Depreciation Study The Parties agree that the depreciation rates specified in the Gannett Fleming study included the Application under Appendix H-2 for Parts I-III, and in the Supplemental filing dated July 8, 2009 for Parts IV and V, will be implemented effective January 1, 2010, with the exception of: (a) Masonry Structures, which has been updated to 40 years instead of 22.88 years; and
(b) the component of those rates that represent recovery of negative salvage (see item 23 below).
Adjusting for the Masonry Structures, negative salvage, and the impacts of capitalized overhead and capital additions changes yields total depreciation expense of $98.3 million in 2010 and $100.5 million in 2011, of which approximately $6.3 million results from the updated Gannett Fleming depreciation study. The Parties agree that TGI will undertake an updated depreciation study to be included as part of TGI’s next Revenue Requirements Application. This study will address the methodology and rates for net negative salvage to be included in cost of service for future periods. TGI will work with Commission staff and a depreciation rate specialist in determining the requirements of the study.
23. Negative Salvage Values On an annual basis, TGI includes a provision for estimated net negative salvage value (removal costs less proceeds) in its depreciation rates. This treatment recognizes that net negative salvage value is a cost of providing service using the asset and should be recovered from customers over the useful life of the asset. An alternative treatment is to recover the net negative salvage values at the time they are incurred resulting in future customers paying for the removal costs, which TGI views as inappropriate. The inclusion of a provision for estimated net negative salvage value in depreciation rates is a practice that has been followed by TGI historically, and with this RRA TGI had proposed continuation of this treatment. This treatment is consistent with the BCUC Uniform System of Accounts and is generally followed by other investor-owned utilities in British Columbia and across Canada. The Parties agree that for the purposes of the two year period covered by this Agreement, the provision for net negative salvage (net removal costs) will be removed from the depreciation estimates. Instead, an estimate of the amount of net removal costs to be incurred in each of the years 2010 and 2011 ($8.038 million and $11.29 million) will be included in the cost of service and recovered from customers in each of those years. Any variances between the actual amount of net removal costs realized and the estimated amounts included in cost of service will be recorded in a new deferral account created for this purpose that will be called the “Removal Cost Deferral Account”. The amount accumulated in the Removal Cost Deferral Account over the two year period of this Agreement will be recovered from (or returned to) customers in 2012.
APPENDIX A to Order G-141-09 Page 13 of 110
![Page 208: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/208.jpg)
– 13 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
TGI continues to be of the position that removal costs should be recovered over the service life of the asset and not at the time the removal costs are actually incurred. TGI will work with Commission staff and a depreciation rate specialist in determining both the methodology and estimates for the removal costs and include the documentation to support the rates in its next depreciation study filed as part of its next Revenue Requirement Application.
24. Unrecovered Losses Issue No. 7 in the Commission Panel’s “Issues of Particular Concern to the Commission Panel” stated:
“Unrealized losses in rate base – should some of these losses be to the shareholder? Parties should present a separate settlement package.”
Unrealized (unrecovered) losses relate to Unrecovered Depreciation on assets used 100 per cent for the provision of utility service to ratepayers (as discussed in the response to BCUC IR 2.131.1.4). The Parties agree that the treatment for unrecovered losses as proposed in the Application is acceptable for the 2010 and 2011 period covered by this agreement. TGI will work with Commission staff and a depreciation rate specialist in determining both the methodology and estimates for the unrecovered losses and include the documentation to support the rates in its next depreciation study filed as part of its next Revenue Requirement Application.
25. Changes to CCA Rates TGI amended its 2007 and 2008 tax returns to reflect changes to CCA rates announced in 2007 but not enacted until 2009. TGI proposed this benefit be shared in accordance with the terms of the PBR settlement. Some Parties have expressed the view, however, that all of the benefit should have been flowed through to customers via the Tax Deferral Account. The Parties, acting in good faith, have concluded that they have a fundamental and legitimate disagreement regarding the terms of the 2004-2009 PBR Settlement Agreement as it relates to the items to be included in the Tax Deferral Account. TGI has nevertheless agreed, as a compromise in furtherance of reaching an overall Agreement among the Parties, to include the full value of the incremental tax benefit associated with the difference in the CCA rates for 2007 and 2008 totalling $921,000 and remove the proposed 50% sharing benefit from the Earnings Sharing Mechanism.
26. Taxes – Tax Benefits Relating to Prior Periods – SCP Landscaping Costs TGI had proposed to accelerate the deduction of the remaining Regulatory Tax balance of SCP Landscaping costs (amounting to approximately $8.2 million) in 2009. That proposal would have resulted in the related tax benefit of approximately $2.4 million being flowed through the Earnings Sharing Mechanism pursuant to the PBR Settlement Agreement, resulting in a net benefit to customers of approximately $1.2 million.
APPENDIX A to Order G-141-09 Page 14 of 110
![Page 209: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/209.jpg)
– 14 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
The Parties agree that, instead, TGI will continue to amortize the balance of SCP Landscaping costs for 2009 as contemplated in the approved rates for 2009 and consistent with prior years, resulting in a deduction of approximately $0.3 million for Regulatory Tax purpose in 2009 and a related tax benefit. TGI will then deduct the remaining balance (approximately $7.9 million) in 2010 with the full value of the remaining benefit (approximately $2.3 million) going to customers reflected as a reduction in revenue requirements in 2010. The Parties agree that the acceleration of this benefit to customers was the result of tax planning actions taken by TGI and acknowledge that the agreed upon treatment set out above reflects customers receiving 100% of the value of the deductions of the SCP Landscaping costs. The intervenor Parties to this Agreement will not seek any additional recovery in respect of SCP Landscaping costs.
27. Overheads Capitalized The Parties agree to a change in the overheads capitalized rate to 14 per cent of Gross O&M for 2010 and 2011 which reflects the approximate actual Overheads Capitalized rate for 2009.
28. International Financial Reporting Standards (“IFRS”) 2010 Impact Issue No. 4 in the Commission Panel’s “Issues of Particular Concern to the Commission Panel” stated:
“International Financial Reporting Standards (“IFRS”) – no IFRS impact in 2010.” The Parties agree to defer the 2010 revenue requirement impact of IFRS to be recovered in rates in 2011 (relating specifically to capitalization of the current service portion of pension and OPEB related costs; capitalization of inspection costs; and timing of depreciation expense) up to a maximum of $1.0 million. Amounts, if any, over $1.0 million would be deferred and recovered in rates after 2011 based on the amortization approved by the Commission at that time.
PART III – REQUESTS UNCHANGED FROM THE APPLICATION
The Parties agree to the following items set out in this section, which are consistent with the proposals in TGI’s Application.
29. Rate Proposals as per Application Part III, Section D .1 - Approvals Sought
The Parties agree to the following rate proposals, as set out in TGI’s Application:
APPENDIX A to Order G-141-09 Page 15 of 110
![Page 210: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/210.jpg)
– 15 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
(a) Allocation of delivery margin rate changes - Annual margin increase allocated to variable (volumetric & demand) based delivery charges, with no change to fixed (basic and admin fee) charges in each year (Application Page 513, Item 1).
(b) Earnings Sharing Mechanism (ESM) rider (incl. end of term capital) - Change the ESM rate rider to be ($0.040)/GJ effective January 1st, 2010, and change the estimated ESM rate rider to be ($0.046)/GJ effective January 1st. 2011. ESM amount to include End of Term Capital phase out and to be amortized over two years. The final 2011 rider amount will be adjusted based on 2009 actual earnings. TGI will submit an application to change the 2011 ESM rate rider at the same time it submits its Q4 quarterly gas cost report in early December 2010 (Application Page 513, Item 3).
(c) Rate Stabilization Adjustment Mechanism (RSAM) rider - Change the RSAM rate rider to be ($0.053)/GJ effective January 1st, 2010 and change the estimated RSAM rate rider to be ($0.052)/GJ effective January 1st, 2011. The 2011 rider amount will be adjusted based on 2009 actual results and 2010 year to date actual results. TGI will submit an application to change the 2011 RSAM rate rider at the same time it submits its Q4 quarterly gas cost report in early December 2010 (Application - Page 514 Item 4).
30. Accounting Policy Changes as per Application Part III, Section D.1 - Approvals Sought - to be effective January 1, 2010
The Parties agree to the following accounting policy changes, as set out in TGI’s Application: (a) Training and Feasibility Study Costs to be treated as O&M expense, rather than capital
(Application Page 515 and 516, Item 11).
(b) Capitalization of Major Inspection Costs, including the creation of a new Asset Class (Application Page 515 and 516, Item 11).
(c) Capitalization of the Current Service portion of Pensions and OPEBs expense that is applicable to capital projects (Application Page 515 and 516, Item 11).
(d) Capitalization of Deprecation on Assets used in Construction (Application Page 515 and 516, Item 11).
(e) All capital expenditures, including CPCNs, to be included in plant in service (and rate base) in the month following the available-for-use date, with depreciation starting at that time (Application Page 515 and 516, Item 11).
(f) Treatment of Vehicle Lease as a capital lease and inclusion of the NBV of vehicles in rate base (Application Page 515 and 516, Item 11).
(g) Discontinuation the Software Tax Credit as part of the CIAC additions (Application Page 515 and 516, Item 11).
APPENDIX A to Order G-141-09 Page 16 of 110
![Page 211: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/211.jpg)
– 16 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
31. Various Accounting Related Proposals as per Application Part III, Section D .1 - Approvals Sought effective January 1, 2010
The Parties agree to the following accounting related changes, as set out in TGI’s Application: (a) Adoption of the Cash Working Capital Lead/Lag Days as set out in the Lead/Lag study
(Application page 515, Item 8c).
(b) Consolidated Core Market Administration Expenses (for TGI, TGVI and TGW), including allocation percentages to TGVI and TGW (Application page 515, Item 8d).
(c) Modify the Pricing Methodology for Company Use Gas to be based on market-based Sumas pricing, rather than pricing for expired "netback" contracts (Application page 514, Item 7a).
(d) The MCRA will absorb any volumes not used or excess volumes required for company use gas, as opposed to the O&M costs being adjusted for the differences (Application page 514, Item 7b).
32. Tariff Change Proposals as per Application Part III, Section D .1 - Approvals Sought, Item 12 & 13
The Parties agree to the following Tariff changes, as set out in TGI’s Application:
(a) New NGV Transportation Service (RS 26)
(b) Revised Fee New Customer Application fee from $85 to $25
(c) Revised Fee Meter Testing fee from $30 to $60
33. Deferral Account Proposals as per Application Part III, Section D .1 - Approvals Sought, Item 10
The Parties agree to the continuation, modification or adoption of the following deferral accounts as set out in TGI’s Application: (a) Deferral Accounts - No Change:
i. CCRA, MCRA, RSAM, and associated Interest and Revelstoke Propane (Application pages 429 and 430, Items (1) (a), (1) (b), (1) (c), (1) (d), (1) (e)).
ii. NGV Conversion Grants (Application page 432, Item (2) (b)).
iii. Property Tax variance (Application page 433, Item (3) (a)).
iv. Insurance variance (Application page 433, Item (3) (b)).
APPENDIX A to Order G-141-09 Page 17 of 110
![Page 212: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/212.jpg)
– 17 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
v. BCUC Levies variance (Application page 433, Item (3) (d)).
vi. Interest variance (Application page 434, Item (3) (e)).
vii. Olympic Security costs (Application page 434, Item (3) (g)).
viii. IFRS conversion costs (Application page 435, Item (3) (h)).
ix. Accounts Amortized in 2010 (Application page 438, Item (6) (a)).
x. SCP PST Reassessment (Application page 439, Item (6) (b)).
xi. Deferred Service Line Installation Fee (Application page 439, Item (6) (d)).
xii. ESM (Application page 440, Item (6) (e)).
(b) Deferral Accounts - Modified:
i. SCP Mitigation Revenues Variance Account - combine the two currently approved accounts into one account (Application page 431, Item (1) (f)).
ii. Pension & OPEB variance - modify to add OPEB (Application page 433, Item (3) (c)).
iii. Tax variance - broader (changes in tax laws, practices, reassessments) (Application page 434, Item (3) (f)).
iv. Pension and OPEB funding Differences - expand to include pension funding differences and include addition in rate base not net of tax (Application page 437, Item (5) (c)).
(c) Deferral Accounts - New:
i. Interest variance calculation on gas in storage inventory (Application page 434, Item (3) (e)).
ii. Costs of applications (CCE, ROE, RRA) (Application page 435, Item (4)).
iii. IFRS Transitional Deferral Account (Application page 435, Item (5) (a)).
iv. Gains and Losses on Asset Disposition (Application page 436, Item (5) (b)).
v. CCE CPCN Costs (incremental non-capital costs plus timing impacts) (Application page 437, Item (5) (d)).
vi. LILO Reassessment (Application page 439, Item (6) (c)).
APPENDIX A to Order G-141-09 Page 18 of 110
![Page 213: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/213.jpg)
– 18 –
CONFIDENTIAL NEGOTIATED SETTLEMENT AGREEMENT
TERASEN GAS INC. DATED THURSDAY, NOVEMBER 5
34. Transfer Pricing Policy (TPP) and Code of Conduct (COC) The Parties agree that the existing COC and TPP Policies will be maintained.
PART IV – REVISED FINANCIAL SCHEDULES
The revised Financial Schedules follow.
APPENDIX A to Order G-141-09 Page 19 of 110
![Page 214: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/214.jpg)
Terasen Gas Inc. 2010-2011 Revenue Requirements Application
Negotiated Settlement Process
Issues of Particular Concern to the Commission Panel
In accordance with sections 3 and 9 of the Negotiated Settlement Process-Policy, Procedures and
Guidelines, the Commission Panel has identified the following issues of particular concern that parties
should be aware of during the negotiations:
1. EEC Program-TGI is to provide results of the programs approved by the EEC Decision and
expectations for new programs before the Commission Panel will approve additional EEC
program funding.
2. Natural Gas for Vehicles ("NGV")-if NGV is to proceed why should the natural gas ratepayer fund
this initiative rather than Terasen's non-regulated businesses or the competitive market?
3. Biogas-to be reviewed by a CPCN which demonstrates market uptake of customers that arewilling to pay the full cost.
4. International Financial Reporting Standards ("IFRS")-no IFRS impact in 2010.
5. 2010 Rate Changes-in the event that a 2010 rate reduction were to occur as a result of thenegotiations, the current rates should remain unshanged and place the revenue surplus into adeferral account to apply against 2011 and future rate increases with a phase in amortizationthat strives for rate stability.
6. CPCN threshold-stay at $5milion.
7. Unrealized losses in rate base-should some of these losses be to the shareholder? Parties
should present a separate settlement package.
APPENDIX A to Order G-141-09 Page 98 of 110
![Page 215: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/215.jpg)
The British Columbia Public Interest Advocacy Centre 208–1090 West Pender Street Vancouver, BC V6E 2N7 Coast Salish Territory Tel: (604) 687-3063 Fax: (604) 682-7896 email: [email protected] http://www.bcpiac.com
Valerie Conrad 687-3017 Sarah Khan 687-4134 Eugene Kung 687-3006 James L. Quail 687-3034 Ros Salvador 488-1315 Leigha Worth 687-3044
Barristers & Solicitors Peggy Lee
Article Student
Our file: 7432 November 12, 2009
VIA EMAIL Erica M. Hamilton Commission Secretary BC Utilities Commission Sixth Floor, 900 Howe Street Vancouver, BC V6Z 2N3 Re: Terasen Gas Inc. Revenue Requirements 2010-2011 Negotiated Settlement This is to confirm that we are satisfied that the draft Settlement Agreement circulated by Mr. Thompson and Mr. Loski on November 5, 2009 accurately captures the consensus reached by the parties to the Negotiated Settlement Process in this proceeding, and that we have been instructed by our clients, BCOAPO et al., to endorse it. Accordingly, we ask that the Commission incorporate it into a consent Order for the resolution of all issues in the Application. Our only further comments, made here only "for the record" and in no way detracting from our clients' endorsement of the Settlement, concern the “Alternative Energy Solutions" addressed under heading 13 of the document. While we believe that the ultimately appropriate corporate and regulatory formats for these lines of business are subject-matters which may require eventual determination by the Commission, our clients are content with the treatment of these issues in the Settlement Agreement over its term, in that it provides a “firewall” to ensure that the utility’s natural gas distribution customers do not subsidize or otherwise contribute to these nascent programs through their rates. Yours truly, BC PUBLIC INTEREST ADVOCACY CENTRE Original in file signed by: Jim Quail Executive Director cc: parties of record
APPENDIX A to Order G-141-09 Page 99 of 110
![Page 216: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/216.jpg)
APPENDIX A to Order G-141-09 Page 100 of 110
![Page 217: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/217.jpg)
APPENDIX A to Order G-141-09 Page 101 of 110
![Page 218: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/218.jpg)
APPENDIX A to Order G-141-09 Page 102 of 110
![Page 219: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/219.jpg)
1
From: Nakoneshny, Philip BCUC:EXSent: Friday, November 13, 2009 12:59 PMTo: Commission Secretary BCUC:EXSubject: FW: Terasen Gas -Revenue Requirements-Negotiated Settlement
‐‐‐‐‐Original Message‐‐‐‐‐ From: Dave Newlands [mailto:[email protected]] Sent: Friday, November 13, 2009 9:40 AM To: 'Al Kleinschmidt'; Brownell, Bob BCUC:EX; Bystrom, Chris; Chris Weafer; J. David Newlands; Roy, Diane; David Craig ([email protected]); Domingo, Yolanda BCUC:EX; Stout, Douglas; 'Eugene Kung'; 'Frederick Metcalfe'; 'Leigha Worth'; McMahon, Claudia BCUC:EX; Carman, Michelle; Nakoneshny, Philip BCUC:EX; 'Paul Cassidy'; Hill, Shawn; Loski, Tom; Wieringa, Paul EMPR:EX; Ghikas, Matt; Sue, Suzanne BCUC:EX; Thomson, Scott ‐ TGI; James L. Quail ([email protected]) Cc: Bernadet Mark SPO Subject: Terasen Gas ‐Revenue Requirements‐Negotiated Settlement Philip Nakoneshny Director of Rates and Finance British Columbia Utilities Commission Dear Philip Terasen Gas Revenue Requirements Application‐2010/2011 Negotiated Settlement I write on behalf of Teck Coal. Teck Coal participated in the Negotiated Settlement Process ("NSP"),facilitated by the Staff of the British Columbia Utilities Commission, and held in the offices of the Commission ,which commenced on October 21,2009. Teck Coal in the negotiations took into consideration the 7 "Issues of Particular Concern to the Commission Panel ",as provided by the Commission Panel at the commencement of the negotiation. Issue Number 5 stated " 2010 Rate Changes‐ in the event that a 2010 rate reduction were to occur as a result of the negotiations ,the current rates should remain unchanged and place the revenue surplus into a deferred account to apply against 2011 and future rate increases with a phase in amortization that strives for rate stability" Teck Coal supports the Negotiated Settlement Agreement Package ("TGI NSP Agreement Package ") dated and circulated by Terasen Gas Inc incorporating a decrease of (1.73% ) in the Fiscal Year commencing January 1,2010,previously an increase of 5.3%.and an increase of 3.93% in the Fiscal Year Commencing January 1,2011,previously an increase of 4.1% . The Negotiated Settlement Agreement Package, incorporates ,amongst others,Issues of Particular Concern to the Commission Panel No. 5
APPENDIX A to Order G-141-09 Page 103 of 110
![Page 220: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/220.jpg)
2
Teck Coal recognizes and emphasizes that this Agreement is the product of compromise on the part of all Parties, yielding an overall package that the Parties consider to be fair, just and reasonable. The Parties agreed that any compromises resulting from this Agreement are without prejudice to the Parties¹ ability to take different positions after 2011 and without prejudice to the Parties right to intervene in any applications contemplated in or resulting from this Agreement. Yours Truly J.David Newlands Cc Mark Bernadet ,General Manager ,Business Improvement,Teck Coal
APPENDIX A to Order G-141-09 Page 104 of 110
![Page 221: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/221.jpg)
PHILIP W. NAKONESHNY DIRECTOR, RATES AND FINANCE [email protected] web site: http://www.bcuc.com
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, B.C. CANADA V6Z 2N3
TELEPHONE: (604) 660‐4700 BC TOLL FREE: 1‐800‐663‐1385 FACSIMILE: (604) 660‐1102
November 13, 2009 Erica M. Hamilton Commission Secretary British Columbia Utilities Commission Sixth floor, 900 Howe Street, Box 250 Vancouver, BC V6Z 2N3 Dear Ms. Hamilton:
Re: Terasen Gas Inc. 2010 and 2011 Revenue Requirements Application
Negotiated Settlement Agreement Letter of Comment
Commission staff participated in the settlement discussions that led to a Negotiated Settlement Agreement (“Settlement Agreement”) being reached between Terasen Gas Inc. (“Terasen Gas”) and the registered Intervenors (collectively, the “Parties”) in accordance with the Negotiated Settlement Process‐Policy, Procedures and Guidelines, January 2001 (“NSP Guidelines”). Commission staff has informed the Parties that the agreements reached on certain issues were not supported by Commission staff and that Commission staff intended to submit a Letter of Comment in respect of those issues. The Parties agreed to Commission staff adopting that course. There are three items in the Settlement Agreement that Commission staff do not support: 1. Item 10‐Inclusion of SCP Capacity in MCRA
Commission Order G‐98‐05 states that: “The Commission approves the debiting of the annual charge of $3.6 million (based on the monthly instalments) against the Midstream Cost Reconciliation Account, with an equal and offsetting amount to be credited to the delivery margin the revenue account for a limited period as a unique and unusual transaction in the circumstances of the SCP and the termination of the BC Hydro TSA. The debiting and the crediting will commence on either November 1, 2005 or January 1, 2006, as consistent with the amount of the BC Hydro/Terasen Inc. TSA revenue that Terasen Gas forecast in its Annual Review submission for 2005 and will end on the earlier of the November 1, 2010 or such other date as the Commission may determine.” The Settlement Agreement continues to include the annual charge of $3.6 million against the MCRA with an offsetting credit to the delivery margin. In Commission staff’s view, extending this treatment beyond November 1, 2010 as contemplated by Order G‐98‐05 requires a determination by the Commission Panel.
…/2
APPENDIX A to Order G-141-09 Page 105 of 110
![Page 222: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/222.jpg)
2
…/3
Commission staff accepts that such determination will occur if the Commission Panel approves the Settlement Agreement.
2. Item 13‐Alternative Energy Solutions
Terasen Gas added 9 enhanced sales and business development staff in 2009 estimated to cost $1.35 million and proposes increases of $3.0 million in 2010 for an additional 10 enhanced sales and business development staff including $1.1 million for consultants and studies and a further $0.6 million in 2011 for 4 enhanced sales and business development staff (BCUC IR 1.72.2 and IR 2.96.2 to 2.96.4; IR 1.114.7). The number of customers are expected to increase between 1.0 to 1.1 percent from 2009 to 2011, but the level of spending in Customer Solutions and Services increases by 17 percent, 27 percent and 8 percent respectively from 2009 to 2011 (BCUC IR 1.96.3).
The New Energy Solutions Deferral Account is to capture direct costs, sales and marketing O&M and other development costs by timesheets or other direct charge and an overhead allocation. In Commission staff’s view, due to the modest growth in customer additions from 2009 to 2011, the additional enhanced sales and business development staff were primarily hired in 2009 to 2011 to develop and market Alternative Energy Solutions. The use of timesheets, direct charges and overhead allocations may result in a proper reallocation of costs from the gas utility to the New Energy Solutions Deferral Account.
The down time or idle time that will likely be experienced while the Alternative Energy is being marketed may not be captured by the timesheet allocation and could remain as a cost to the gas utility. In Commission staff’s view, it would be preferable to directly charge the fully loaded cost of the additional enhanced sales and business development staff and the costs of consultants and studies to the New Energy Solutions Deferral Account to avoid any of these costs being borne by natural gas customers.
If Terasen Gas is able to demonstrate that the use of timesheets, direct charges and overhead allocations would result in none of the costs that are incurred for Alternative Energy Solutions including down time and the costs of consultants and studies to be borne by gas customers, then Commission staff’s concern is addressed.
3. Item 14‐Natural Gas for Vehicles (“NGV”)
Terasen Gas proposes to treat as general O&M, rather than track separately, NGV marketing and project development costs incurred prior to signing a contract with a customer for compression and refuelling service (BCUC IR 1.21.1). Commission staff attempted to obtain information on the NGV marketing costs that are currently incurred through information requests, but were unsuccessful. In Commission staff’s view, information on the incremental marketing costs being incurred will be required if Terasen Gas, during 2010 and 2011, applies
APPENDIX A to Order G-141-09 Page 106 of 110
![Page 223: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/223.jpg)
3 for approval of Rate Schedule 6 C NGV Compression and Refuelling Service and 6A NGV Refuelling Service , including recovery of the incremental marketing costs, and the Commission is to review the applications on a case‐by‐case basis as contemplated in the Settlement Agreement.
Yours truly, Original Signed by Philip W. Nakoneshny Director, Rates and Finance
PF/TGI‐2010RR/NSP Doc/Ltr to EMH_Comm staff‐Ltr of Comment
APPENDIX A to Order G-141-09 Page 107 of 110
![Page 224: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/224.jpg)
~ Torn A. Loskl
TeraSen Gas
Chief Regulatory OfIioer
16705 Fraser Highway Surrey, B.C. V4N OES Tel: (604) 592-7464 Cell: (604) 250-2722 Fax: (604) 576-7074
November 13, 2009
British Columbia Utilities Commission Sixth Floor, 900 Howe Street Vancouver, B.C. V6Z 2N3
Attention: Mr. Philip Nakoneshny, Director, Rates and Finance
Dear Mr. Nakoneshny:
Re: Terasen Gas Inc. ("Terasen Gas") 2010 and 2011 Revenue Requirements Application
Negotiated Settlement Agreement
Email: [email protected] www.terasengas.com
Regulatory Affairs Correspondenoe Email: [email protected]
On June 15, 2009, Terasen Gas filed its 2010 and 2011 Revenue Requirements Application, which was supplemented by a filing on July 9, 2009 and amended by filings on August 14 and September 18, 2009 (the "Application").
In accordance with Commission Order No. G-76-09 issued on June 19, 2009, a Workshop was held on July 6, 2009 for a review of the Application, a Procedural Conference was held on July 15, 2009, and Terasen Gas responded to two rounds of Information Requests. In accordance with Commission Order No. G-89-09 issued on July 20,2009, a second Procedural Conference was held on September 25, 2009 and on October 2, 2009, the Commission issued Order G-119-09 establishing a Negotiated Settlement Process ("NSP") for the Application. In accordance with Order No. G-120-09, the NSP commenced on Wednesday, October 21, 2009 and concluded on Wednesday, November 4, 2009.
Terasen Gas has reviewed the attached settlement documents, including the Negotiated Settlement Agreement and associated financial schedules (collectively the "Negotiated Settlement") arising from the NSP. Terasen Gas recognizes the Negotiated Settlement as being the product of good faith compromises among parties with diverse interests in the issues raised by the Application. The Parties have expressly considered the Commission Panel's Issues. In fulfilling their role pursuant to the Commission's Negotiated Settlement Process Policy, Procedures and Guidelines (the "Guidelines"), Commission Staff made additional information available to the parties which they believed was in the public interest. The parties considered all such information in reaching the compromise Settlement Agreement and Terasen Gas considers the resulting Negotiated Settlement to be fair, just and reasonable. As the Negotiated Settlement represents compromises among the parties and an overall balance of interests, Terasen Gas stresses that the Negotiated Settlement should be considered as a package, with no part being severed unless otherwise stated in the Agreement. On that basis, Terasen Gas accepts the Negotiated Settlement.
Commission Staff have provided written comment on the NSP, and TGI responds to those comments below.
APPENDIX A to Order G-141-09 Page 108 of 110
![Page 225: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/225.jpg)
November 13, 2009 ~ British Columbia Utilities Commission Terasen Gas 2010 and 2011 Revenue Requirements Application Negotiated Settlement Agreement
Terasen Gas
Page 2
Inclusion of Southern Crossing Pipeline ("SCP") Capacity in the Midstream Cost Reconciliation Account ("MCRA"): TGI notes for reference that the evidence on the inclusion of the SCP costs in the MCRA is found in the Application on pages 314 to 315 and its response to BCUC IRs 1.68.1 and 2.92.1-7. The result of taking the approach in the Agreement is a lower delivery rate, all else equal, with an offsetting charge to the MCRA.
Alternative Energy Solutions (GeothermallDistrict Energy Systems and Solar Thermal): Staff's position on this issue turns on its view that, "due to the modest growth in customer additions from 2009 to 2011, the additional enhanced sales and business development staff were primarily hired in 2009 to 2011 to develop and market Alternative Energy Solutions." While that may be Staff's position, it is at odds with TGl's evidence. Staff's conclusion appears to rest on the notion that TGI could not truly require additional staff for marketing if there is only modest growth in customer additions, i.e. that there is a linear correlation between marketing effort and customer additions. TGl's evidence was that the competitive factors facing the gas business mean that it is necessary to invest more to maintain and grow the business, including the gas business.
Staff also identifies an issue relating to overhead allocation to the alternative energy class of service, so as to ensure gas customers are not bearing costs attributable to the pursuit of geothermal, solar thermal and district energy systems. The cost allocation methodology outlined in the Agreement is structured to avoid cross subsidization by gas customers. The Agreement contemplates a $500,000 annual overhead allocation to alternative energy solutions, and a corresponding reduction in overhead allocated to gas customers. This is a direct benefit to gas customers. As a point of comparison, the allocation of overhead to alternative energy solutions is approximately two times the allocation to Terasen Gas (Whistler) Inc., suggesting that the issue of overhead allocation is addressed adequately. The risk of non-recovery lies with TGl's shareholder, not gas customers. Notably, the gas customers themselves have endorsed the Agreement.
NGV Marketing Costs: TGI notes that it has an existing NGV tariff and the amount of NGV marketing costs in the revenue requirements for 2010 and 2011 is very modest (see TGl's responses to BCUC IR 1.21.2 (last paragraph) and BCUC IR 2.96.2). Issues relating to NGV have been deferred by the terms of the Settlement Agreement. TGI respectfully submits that there is no need for the Panel to address Staff's issue at this time.
TGI wishes to make one final comment relating to our procedural concerns regarding the publication of Staff's comments. Commission Staff unquestionably plays an important role during the confidential settlement discussions in providing information and assisting the parties, and providing a perspective regarding their view on the public interest. That role is one sanctioned by, and described in, the Commission's Guidelines. However, under the Guidelines (at page 8) Commission Staff is precluded from, "endorsing a particular position". TGI therefore questions whether the letter provided by Commission Staff is consistent with the Guidelines.
APPENDIX A to Order G-141-09 Page 109 of 110
![Page 226: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/226.jpg)
November 13, 2009 British Columbia Utilities Commission Terasen Gas 2010 and 2011 Revenue Requirements Application Negotiated Settlement Agreement Page 3
~ Terasen
Gas
TGI respectfully submits that the requirement for the Commission Staff not to take positions on issues makes good sense. Commission Staff is not a party to the resulting Agreement; rather, the Negotiated Settlement Agreement is simply an agreement among intervenors and the applicant that a certain outcome is acceptable to them and should be jOintly submitted for consideration by the Panel. In this case, the Agreement is clear that the Parties, having fully considered the information provided by Staff during the course of the NSP, have reached a compromise agreement that they consider to be in all respects fair, just and reasonable. As is inherent in every compromise, there will be outcomes about which a particular party was only supportive in exchange for other concessions. By commenting on the Agreement reached, Commission Staff places the parties in the position of having to justify individual items without being able to detail the steps that led to the outcome (which would not be appropriate in any event). It similarly places focus on isolated issues in the absence of the whole context of the negotiation that occurred in confidence. As a means of highlighting the difficulty this type of commentary creates, it is not possible for TGI to address in this letter Staff's statements about the information on NGV provided by TGI with reference to any additional information provided in the course of the confidential discussions.
To the extent that Staff has decided to make its views known on the present Agreement, TGI appreciates Staff having done so in a transparent manner; the alternative of having these views being conveyed in a non-transparent manner without any ability to respond would have been unpalatable. TGI nevertheless respectfully submits that the overall Settlement Agreement package should be assessed without isolating for consideration three issues where Staff might potentially have preferred a different outcome.
With that comment, Terasen Gas would like to express sincere thanks to Commission Staff and Intervenor representatives for their active participation in achieving this Negotiated Settlement Agreement on the Application. Terasen Gas also wishes to thank the NSP facilitator, Mr. Paul Cassidy, for his leadership, guidance and assistance to all parties throughout the NSP process.
If there are any questions regarding the attached, please contact the undersigned.
Yours very truly,
APPENDIX A to Order G-141-09 Page 110 of 110
![Page 227: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/227.jpg)
IN THE MATTER OF
TERASEN UTILITIES (TERASEN GAS INC., TERASEN GAS (WHISTLER) INC.
AND TERASEN GAS (VANCOUVER ISLAND) INC.)
2010 LONG TERM RESOURCE PLAN
DECISION
February 1, 2011
Before:
D.A. Cote, Panel Chair/Commissioner A.W.K. Anderson, Commissioner
L.A. O’Hara, Commissioner
![Page 228: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/228.jpg)
TABLE OF CONTENTS
Page No.
EXECUTIVE SUMMARY 1
1.0 INTRODUCTION 3
1.1 Application 3
1.2 Orders Sought 4
1.3 Regulatory Process 4
1.4 Context 5
1.4.1 Resource Planning Guidelines 5 1.4.2 New and Alternative Energy Solutions 6 1.4.3 Terasen Description of the 2010 LTRP 7 1.4.4 Regulatory Construct 7
1.5 Issues Arising 8
2.0 COMMISSION PANEL DECISION ON THE APPLICATION 11
2.1 UCA Section 41.1(2) Requirements 12
2.2 Resource Planning Guidelines 13
2.3 UCA Section 41.1 (8) (a) and (b) Requirements 14
2.3.1 Alignment with British Columbia’s Energy Objectives 14 2.3.2 Requirements Under Sections 6 and 19 of the Clean Energy Act 16 2.3.3 Adequate, Cost‐Effective Demand‐Side Measures 16 2.3.4 Consideration of the Interests of Persons in British Columbia 18
2.4 Commission Panel Observations 19
2.5 What Acceptance of the Plan Means 20
3.0 DISCUSSION OF ISSUES ARISING 21
3.1 Quality of the 2010 LTRP 21
3.2 New Initiatives 26
COMMISSION ORDER G‐14‐11 APPENDICES APPENDIX A Utilities Commission Act Section 44.1 APPENDIX B The Regulatory Process APPENDIX C 2010 Long Term Resource Plan and British Columbia’s Energy Objectives APPENDIX D Demand‐Side Measures Regulation, B.C. Reg. 326/2008 APPENDIX E List of Exhibits
![Page 229: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/229.jpg)
1
EXECUTIVE SUMMARY
The Terasen Utilities filed an Application on July 15, 2010 for acceptance of the 2010 Long Term
Resource Plan pursuant to section 44.1(6) of the UCA. The 2010 LTRP provides a high level
examination of future demand and supply source expectations over the next 20 year period and
outlines in broad terms the actions required over the next four year period to ensure the energy
needs of customers are met over the long‐term. In addition, the Application also covers the
following:
• The changing British Columbia energy planning environment.
• Low and No‐Carbon Initiatives.
• Energy Efficiency and Conservation‐Demand Side Resources.
• Gas Supply and Regional Infrastructure Planning.
The Application was reviewed by way of a written hearing process.
In considering the Application, the Commission Panel must determine whether the requirements of
section 44.1(2) of the UCA have been met. In addition, as required by section 44.1(8),
consideration must be given to provisions related to British Columbia’s energy objectives, the
requirements of the CEA, demand side measures and public interest.
The Interveners as a group supported the Commission’s acceptance of the 2010 LTRP. However,
two Interveners, BCOAPO and the CEC did raise concerns with the plan with specific reference to its
scope, its comprehensiveness and Terasen’s lack of detail in describing how it will address the
future. The Commission Panel was in agreement with these criticisms and identified them as an
issue to be dealt with in the Decision. In addition, the issue of Terasen’s New Initiatives and how
they are most appropriately handled within a regulatory context was raised. The Panel is in
agreement with the submissions of the parties and determined that this proceeding is not an
appropriate venue to reach a determination on this matter. However, the Panel views the issue as
sufficiently important to warrant further examination within this proceeding and direction as to
how it may be addressed in the future.
![Page 230: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/230.jpg)
2
The Commission Panel, after an assessment of the Application in terms of the requirements
outlined in sections 44.1(2) and 44.1(8) of the UCA and the evidence before it, accepts the Terasen
2010 LTRP under section 44.1(6) of the UCA as being in the public interest.
In this Decision, the Panel comments on the quality of the 2010 LTRP and has made a number of
directives concerning the preparation of future resource plans. These concern the following areas:
• The development of a longer term vision for Terasen Utilities.
• Integration of the EEC programs, New Initiatives and GHG reduction targets in demand forecasting.
• The approach to Demand forecasting given the new business environment.
An examination of Terasen’s New Initiatives in terms of the regulatory questions raised, public
interest concerns, competitive considerations and issues related to ‘who pays’ led to a Panel
recommendation that the issues arising are sufficient to warrant a more formal process to address
them at a future date.
![Page 231: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/231.jpg)
3
1.0 INTRODUCTION
This Application is submitted by the Terasen Utilities, comprising Terasen Gas Inc., Terasen Gas
(Vancouver Island) Inc. and Terasen Gas (Whistler) Inc. (Terasen, the Company, Terasen Utilities)
for acceptance of their 2010 Long Term Resource Plan (2010 LTRP) which covers a twenty‐year
period through 2030.
1.1 Application
Terasen provides natural gas service to more than 935,000 residential, commercial, and industrial
customers in over 125 communities throughout British Columbia. Terasen Utilities are subsidiaries
of Terasen Inc., which since May 2007 has been owned by Fortis Inc.
On July 15, 2010 Terasen submitted its 2010 LTRP to the British Columbia Utilities Commission (the
Commission, BCUC) for review. Terasen Utilities filed the Application in accordance with the
Commission’s Resource Planning Guidelines (RP Guidelines) and are seeking acceptance of the
2010 LTRP pursuant to section 44.1 of the Utilities Commission Act (the Act, UCA). The previous
plan, Terasen’s 2008 Resource Plan, was accepted by Commission Order G‐194‐08.
The 2010 LTRP examines future demand and supply resource conditions over the next 20 years and
recommends actions needed during the next four years to ensure customers’ energy needs are met
over the long‐term. It also discusses the rapidly changing energy planning environment in British
Columbia, the low carbon strategies of Terasen Utilities, the new demand forecasting activities, the
need to seek additional and on‐going funding approvals for the Company’s Energy Efficiency and
Conservation (EEC) programs as well as regional infrastructure issues.
Terasen points out that the activities of a fourth company, Terasen Energy Services (TES), also
provide important background in planning for the future of Terasen Utilities. It appears that
beginning 2010 Terasen Utilities have begun assuming the role previously played by TES in relation
![Page 232: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/232.jpg)
4
to new projects. These activities include the development, construction and operation of
alternative energy systems as well as setting of rates and cost recovery for those systems.
(Exhibit B‐1, p. 3)
1.2 Orders Sought
Terasen is seeking acceptance of the 2010 LTRP in accordance with section 44.1 of the Act. This
section, entitled “Long‐term resource and conservation planning”, is reproduced in its entirety in
Appendix A. Specifically, the Company requests that the Commission, after reviewing the
Application, finds that carrying out the 2010 LTRP is in the public interest and accepts it accordingly
pursuant to s. 44.1(6) of the Act. The Commission’s public interest determination under s. 44.1(6)
must also be guided by the criteria identified in s. 44.1(8), including the consideration of British
Columbia’s energy objectives, whether the plan shows that the public utility intends to pursue
adequate, cost‐effective demand‐side measures, and consideration of the interests of persons in
British Columbia who receive or may receive service from the public utility.
While the 2010 LTRP submission includes five‐year capital plans and descriptions of facility
expansions, Terasen Utilities are not seeking approval of those capital plans at this time. Terasen
states that each company will file separate CPCN applications, if and as necessary, for any of those
projects in accordance with the Commission’s guidelines.
1.3 Regulatory Process
The Regulatory Process is described in detail in Appendix B. Five organizations registered as
Interveners for the Application. They are:
• Ministry of Energy, Mines and Petroleum Resources
• British Columbia Hydro and Power Authority
• B.C. Sustainable Energy Association and the Sierra Club of British Columbia Chapter (BCSEA)
![Page 233: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/233.jpg)
5
• British Columbia Old Age Pensioners’ Organization et al. (BCOAPO)
• Commercial Energy Consumers’ Association of British Columbia (CEC)
Among these BC Hydro, BCSEA, BCOAPO and the CEC, intervened by actively participating in some
or all of the Processes.
Noteworthy is a question by a member of the Commission Panel during the Procedural Conference
on September 21, 2010. The inquiry was about a statement made by the Company on page 186 of
the Application: “Going forward, the utilities will seek approval of an overall business and
regulatory model and seek CPCN approval of specific projects.” (T1:7) This raised the issue of a
need to better understand the view of Terasen with respect to the line separating regulatory and
non‐regulatory activities as the companies pursue what some might define as potentially
competitive enterprises as opposed to those in a more traditional regulatory environment. By
Order G‐146‐10 the Commission Panel requested submissions of the parties as to the need of a
Second procedural Conference to address this topic. These submissions are summarized in
Section 1.4.4 as they focus on the context in which the Panel has considered the 2010 LTRP.
1.4 Context
1.4.1 Resource Planning Guidelines
The Commission’s mandate to direct and evaluate the resource plans of energy utilities is intended
to facilitate the cost‐effective delivery of secure and reliable energy services. In other words,
resource planning aims at assisting the selection of cost‐effective resources that yield the best
overall outcome of expected impacts and risks for ratepayers in the long‐term. The RP Guidelines
provide general guidance regarding the Commission’s expectations of the process and methods for
utilities to follow in developing their plans that reflect their specific circumstances and include the
following key phases and/or steps:
• Identification of the planning context and the objectives of a resource plan;
![Page 234: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/234.jpg)
6
• Development of a range of gross pre Demand Side Management (DSM) demand forecasts;
• Identification of supply and demand resources;
• Measurement of supply and demand resources;
• Development of multiple resource portfolios;
• Evaluation and selection of resource portfolios;
• Development of an action plan;
• Stakeholder input;
• Regulatory input;
• Consideration of government policy; and
• Regulatory review.
Further, utility specific directions may address issues regarding the elements of the resource plan
or the underlying methodology. The Commission reviews resource plans in the context of the
unique circumstances of the utility in question.
1.4.2 New and Alternative Energy Solutions
The Company states that energy services which integrate low and no‐carbon fuel technologies with
conventional energy supply provide solutions to some of the province’s most pressing challenges.
These challenges include increasing demand for energy, escalating energy costs, carbon emissions,
job creation and economic stability. In 2010 Terasen Utilities began integrating a range of
alternative energy solutions and services into their core natural gas transportation and delivery
business, while at the same time increasing expenditures on energy efficiency and conservation
programs. Terasen states that in the context of the 2010 LTRP, alternative energy systems are
those low and no carbon technologies that provide renewable thermal energy solutions for the end
user; such as geo‐exchange, waste heat recovery, solar thermal and combined heat and power as
well the combination of any of these types of technologies with conventional energy services in
discrete and district energy systems. In addition, Terasen is pursuing new low carbon initiatives
and projects which are designed to reduce Greenhouse Gas (GHG) emissions. Terasen further
![Page 235: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/235.jpg)
7
states that the 2010 LTRP “builds on those initial steps to transform Terasen Utilities into a
complete, integrated energy provider of alternative energy solutions incorporating the reliability of
conventional energy services.” (Exhibit B‐1, p. E‐1, p. 3, pp. 9‐10)
1.4.3 Terasen Description of the 2010 LTRP
The Company submits that the 2010 LTRP is “a contextual document that considers the planning
environment, including B.C.’s energy objectives, input from customers and other stakeholders with
insight into the future needs of the utility and the issues Terasen Utilities must continue to monitor
in order to continue serving customers in the most cost‐effective, safe and reliable manner.”
Terasen further explains that the existence of other regulatory processes directly related to
resource planning have influenced the scope of what can be efficiently addressed in the 2010 LTRP.
Terasen Utilities cites Annual Contracting Plans, individual gas supply contracts, the Gas Supply
Mitigation Incentive Plan and applications for EEC funding as examples of these processes.
Finally, Terasen submits that because a section 44.1 filing is a higher‐level planning document,
there is a need for further Commission consideration of key matters described in the 2010 LTRP,
including the action plan. As an example, Terasen points out it can generally only proceed with
significant capital projects once a CPCN has been obtained. Similarly, the low or no‐carbon
initiatives will also require Commission approvals. (Terasen Final Submission, p. 2)
1.4.4 Regulatory Construct
In response to Order G‐146‐10 Terasen submits “the Commission’s understandable desire to
explore the issue of the scope of regulation in respect of these initiatives is most appropriately left
to other processes to be concluded in the near future.” Terasen further submits that this would
allow the 2010 LTRP process to be most efficiently and effectively addressed in a written process
based on the existing record. Terasen provides the following reasons for its position:
![Page 236: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/236.jpg)
8
• Each of the low‐carbon initiatives is unique, and therefore is not conducive to a “one size fits all” determination in a section 44.1 proceeding devoted to high‐level planning.
• The initiatives are, or will be in the immediate future, the subject matter of project specific proceedings that are more conducive to addressing regulatory issues of this nature.
• This approach is consistent with the Commission‐approved Negotiated Settlement Agreement (NSA) in the recent Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. 2010 and 2011 revenue requirements applications.
(Exhibit B‐11, pp. 1‐2)
BCOAPO submits that ultimately there will be a requirement for a holistic examination of the larger
question of “what kinds of activity will properly reside with the utility, as markets, policy and rules
regarding greenhouse gas‐emitting hydrocarbon fuels develop” in the world of Terasen Utilities.
However, BCOAPO further submits that because this Application “fails to provide a basis for the
Commission to develop a meaningful handle on the fundamental questions facing it as the
regulator of natural gas utilities” it would be premature to address this issue in the 2010 LTRP
proceeding. (Exhibit C4‐4, pp. 1‐3)
BCSEA agrees with BCOAPO that the record in the 2010 LTRP proceeding is insufficient to support a
high level examination of policy issues raised by the downstream, or “below the utility meter”,
business opportunities that Terasen Utilities are now developing. (Exhibit C3‐4, pp. 1‐2)
1.5 Issues Arising
Terasen is seeking acceptance of its Long Term Resource Plan which it describes as “a point in time
in the Terasen Utilities high level, dynamic, and ongoing planning process.” The Company notes
that the process leading to this plan is not linear but iterative in nature with the final stage being
the development of a four‐year action plan which encompasses the implementation of the plan’s
recommendations and ensures resource requirements and alternatives receive ongoing
assessment.
![Page 237: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/237.jpg)
9
Terasen submits that the 2010 LTRP has met the requirements of the UCA and is in the public
interest. (Terasen Final Submission, p 1‐2; Exhibit B‐1, p. 1)
It is Terasen’s position that resource planning is an ongoing process and subject to change as it
responds to new events and information. Terasen states that this freedom is a necessity if it is to
take action to ensure a supply which is safe, secure and reliable. The Company further states that
acceptance of the 2010 LTRP does not commit the Commission to approving cost estimates for
future applications which relate to projects or programs included in this plan. Due to the likelihood
of new relevant evidence being brought forward in these applications, it is not essential that the
Commission approve costs in a LTRP. (Exhibit B‐5, BCUC 1.1.1)
The Interveners as a group are in support of the Commission accepting the 2010 LTRP. However,
two of the stakeholders, BCOAPO and the CEC have expressed concerns with the plan in terms of
its scope, its comprehensiveness and the lack of specific detail in describing plans to address the
future. BCOAPO is critical of the quality of the plan and questions whether it fulfills the purpose of
resource planning. BCOAPO further notes that the point of resource planning is for the parties to
reflect on the utilities trajectory as it relates to emerging issues. This entails dealing with what it
refers to as the “Big Question” concerning the lines of business utilities pursue and how they
operate in the future. Moreover, it notes that the “Long Term Plan” appears to be a short term
exercise and suggests the Commission provide guidance to Terasen with respect to the preparation
of future resource plans. The CEC refers to Terasen’s 2010 LTRP as “essentially business as usual
with a tweak” and contends that overall the plan does not go far enough in creating change over
the 20 year period. The CEC also submits that the level of resource planning considering provincial
GHG targets will be inadequate in setting a base for the kind of response which will be required.
Further, the CEC notes the four year Action Plan which addresses low or no carbon initiatives is
very short term in perspective. The CEC submits there would be little value in asking Terasen to
redo its resource plan but recommends the Commission request Terasen to show substantial
improvement in its next LTRP. (BCOAPO Final Submission, pp. 1‐3; CEC Final Submissions, pp. 4‐6)
![Page 238: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/238.jpg)
10
Taking into consideration these comments and the submissions from Interveners, as well as its
review of the evidence submissions of Terasen, the Commission Panel has identified a number of
issues which require more detailed examination. They are as follows:
1. The Adequacy and the Quality of the 2010 LTRP
The Commission Panel views the adequacy and the quality of the 2010 LTRP as two separate issues.
The adequacy of the 2010 LTRP is very much a question in determining whether it should be
accepted by the Commission. Primary considerations in reaching a determination on this include
requirements of section 44.1 of the UCA, alignment with British Columbia’s energy objectives and
Provincial Government policy, the RP Guidelines and any previous directions provided by the
Commission with respect to future resource plans.
Aside from any decision with regard to the adequacy of the LTRP is the consideration of its level of
quality. Both BCOAPO and the CEC have expressed concerns with whether the plan is sufficiently
robust and complete and whether it adequately addresses the future. The Panel has similar
concerns and believes that a closer examination of this issue within this Decision will lead to
improvements in future LTRP applications.
2. Understanding the Meaning of Acceptance
The Commission Panel notes that the meaning of “acceptance” of the 2010 LTRP is addressed by
Terasen Utilities in a number of IR responses and in its Final Submission. However, we believe
there would be a benefit in providing clarity to define exactly what is meant by “acceptance.” Our
concern lies in ensuring that the meaning of acceptance of this plan is understood and does not “tie
the hands” of Panels in reviewing future applications related to many of the initiatives considered
in this Application.
3. New Initiatives
As raised previously, there is a need to address the issue of how best to handle Terasen’s move into
what are non‐traditional and potentially competitive business lines from a regulatory perspective.
![Page 239: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/239.jpg)
11
This remains an issue with the BCOAPO which in its Final Submission stated that Terasen must deal
with this “Big Question” if the resource planning exercise is to be meaningful. It further notes that
if the issue is left to be answered on an ad hoc basis through one‐off applications it will mean
“missing the opportunity for a careful and systematic consideration of the complex regulatory
issues embedded within it.” (BCOAPO Final Submission, p. 1) While the parties have agreed that
this proceeding is not an appropriate place to reach a determination on this matter, it remains an
issue worthy of further examination and some direction as to how it may be addressed in the
future would be constructive.
This Decision will first address whether to accept or reject in whole or in part this Application. This
will be covered in Section 2.0 which will also include the Panel’s consideration of what it views
“acceptance” to mean and the implications. In Section 3.0 the Panel will address what it believes
to be key issues arising from the Application. This will include a discussion of the 2010 LTRP and
requirements for future resource plans as well as a discussion of the issues related to Terasen’s
plans to move forward with initiatives in new business areas.
2.0 COMMISSION PANEL DECISION ON THE APPLICATION
In reaching its decision as to whether to accept Terasen’s 2010 LTRP, the Panel must determine
whether the requirements of section 44.1 (2) of the UCA have been met. Further, in accordance
with section 44.1 (8), the Panel must consider the provisions therein related to British Columbia’s
energy objectives, requirements of the Clean Energy Act (CEA), demand‐side measures and public
interest.
Finally, the Panel must consider the 2010 LTRP within the context of the RP Guidelines and the
evidence presented by the Applicant and Interveners.
In assessing the 2010 LTRP in terms of its requirements and considering the British Columbia
energy objectives and policy as well as the evidence before it, the Commission Panel accepts the
Terasen 2010 LTRP under section 44.1 (6) of the UCA as being in the public interest.
![Page 240: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/240.jpg)
12
2.1 UCA Section 41.1(2) Requirements
For a long term resource plan to be accepted it must satisfy the requirements of section 41.1(2) of
the UCA. This section is provided in Appendix A and includes the following:
• A plan to reduce demand.
• Demand estimates both before and after taking into account demand‐side measures.
• A description of new or extensions to existing facilities.
• Information regarding energy purchases.
• An explanation of why either energy purchases or facility requirements are not replaced by demand side measures.
• Any other information required by the Commission.
Throughout the proceedings Terasen Utilities has referred to the 2010 LTRP as a high level planning
exercise. In keeping with this, the Company has broadly outlined the issues it is concerned about
and its direction over the long term. Included are demand forecasts for the next twenty year
period which take into account EEC measures which have been implemented to date. (Exhibit B‐5,
BCUC 1.15.1.1) While Terasen has developed scenarios based on future funding levels it has
provided no detail to EEC measures beyond 2011. Further, Terasen has addressed the need for
additional infrastructure requirements to adequately meet demand in the future as well as its
intent to move forward with a number of low or no‐carbon initiatives. The 2010 LTRP makes note
of these in the 8‐point action plan guiding activity over the next four year period. A number of
these points will result in further applications which, when filed, will provide a description of the
initiatives and their impact. (Exhibit B‐1, pp. 185‐188)
None of the Interveners raised concern with respect to whether the requirements of
section 44.1(2) have been met.
![Page 241: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/241.jpg)
13
The Commission Panel is satisfied that the 2010 LTRP as filed by Terasen is adequate to meet the
requirements as laid out section 44.1(2) of the UCA. The Panel notes that additional detail on
much of what is proposed will follow in subsequent filings. Accordingly, the Panel finds there is no
reason to reject Terasen 2010 LTRP on the basis of failure to meet these requirements.
2.2 Resource Planning Guidelines
The purpose and key requirements for the development of long term resource plans have been
outlined previously in Section 1.4.1. The RP Guidelines were developed in 2003 and predate much
of the recent legislation and changes to the UCA. Nonetheless they are still relevant as they
provide overall direction but are not prescriptive in mandating a specific outcome to the process or
specific investment decisions.
It is apparent that Terasen Utilities took some guidance in the preparation of the LTRP from the RP
Guidelines. However, it is also clear the 2010 LTRP which has been filed by Terasen does not
incorporate the guideline requirements fully. Most notable by their absence are the following:
• The lack of a clear outline detailing the measurement of supply‐side and demand‐side resources against established objectives.
• The lack of development of multiple resource portfolios for each demand forecast and related assessment of alternative resource portfolios against various gross demand forecasts.
On the positive side, Terasen has identified the planning context and objectives of the resource
plan, developed four year action plans and has invited stakeholder input as outlined in the
guidelines. With respect to stakeholder input, the Panel is most encouraged by Terasen’s intention
to establish a Resource Plan Advisory Group as it may provide a sounding board and assist in the
preparation of future plans.
![Page 242: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/242.jpg)
14
The Commission Panel recognizes that the 2010 LTRP has been prepared at a high level and lacks
detail. Further, Terasen admits that many of the New Initiatives included in the plan are not
sufficiently developed to where they can be fully incorporated in the planning process. (Terasen
Final Submission, p. 6) In addition, given the significant change and evolution of British Columbia’s
energy objectives and Provincial Government policy since the RP Guidelines were issued, a review
and update of the guidelines is likely warranted. As a result, the Panel in considering these factors
and the fact that Terasen did incorporate many elements of the RP Guidelines within its 2010 LTRP,
sees no value in rejecting it based on its failure to incorporate all guideline elements.
2.3 UCA Section 41.1 (8) (a) and (b) Requirements
Section 44.1(8) of the Act outlines a number of provisions which must be considered by the
Commission in reaching a decision as to whether to accept a long term resource plan. A discussion
of each of these follows.
2.3.1 Alignment with British Columbia’s Energy Objectives
The Panel finds that the Application is generally consistent with British Columbia’s energy
objectives as outlined in the Clean Energy Act. Section 2 of the CEA sets out British Columbia’s
energy objectives. Those most relevant to this proceeding include:
(d) to use and foster the development in British Columbia of innovative technologies that support energy conservation and efficiency and the use of clean or renewable resources;
(g) to reduce BC greenhouse gas emissions
(i) by 2012 and for each subsequent calendar year to at least 6% less than the level of those emissions in 2007,
(ii) by 2016 and for each subsequent calendar year to at least 18% less than the level of those emissions in 2007,
(iii) by 2020 and for each subsequent calendar year to at least 33% less than the level of those emissions in 2007,
(iv) by 2050 and for each subsequent calendar year to at least 80% less than the level of those emissions in 2007, and
(v) by such other amounts as determined under the Greenhouse Gas Reduction Targets Act;
![Page 243: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/243.jpg)
15
(h) to encourage the switching from one kind of energy source or use to another that decreases greenhouse gas emissions in British Columbia;
(i) to encourage communities to reduce greenhouse gas emissions and use energy efficiently;
(j) to reduce waste by encouraging the use of waste heat, biogas and biomass;
(k) to encourage economic development and the creation and retention of jobs; Terasen speaks to these objectives within the 2010 LTRP. Further, the Company has provided a
table summarizing how a number of initiatives it is undertaking within the plan are supported by
British Columbia’s energy objectives (Appendix C).
With reference to this table and its contents, the BCSEA‐SCBC notes that the list of energy
objectives is accurate and the 2010 LTRP is consistent with the “government’s energy objectives.”
(BCSEA‐SCBC Final Submission, p.4) The CEC indicates its desire to draw attention to British
Columbia’s energy objective 2 (g) which outlines reductions in GHG emissions over a 40 year
timeline. The CEC’s position is that Terasen’s response to these objectives is confined to EEC
programs and low and no‐carbon initiatives which it believes “will be insufficient to see the
province achieve anywhere close to the energy objectives.” The CEC notes that the achievement of
these GHG targets will require dramatic change over the next 20 years and, while these initiatives
represent a good start, they do not provide an adequate basis for the nature and scale of activities
required to contribute significantly to the energy objectives. In its view, the modest change of plus
or minus 20 PJ in demand over the 20 year planning horizon will not approach the scale necessary
to meet provincial objectives. Further, the CEC submits that “resource planning which does not
show a full response to the scale of provincially legislated objectives is deficient.” (CEC Final
Submission, pp 3‐5)
In Reply Terasen Utilities note that the GHG reduction targets outlined in British Columbia’s energy
objectives are for the province as a whole and points out that no specific sector allocations have
been made. Additionally, the Company points out that the 20‐year demand forecast within the
2010 LTRP does not take into account additional EEC program funding beyond that which is
currently approved. It states that it plans to seek expanded EEC funding for 2012 and, as a result,
![Page 244: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/244.jpg)
16
the current forecast does not include the full impact of Terasen EEC programs for 2012 and
beyond. (Terasen Reply, p. 4)
The Commission Panel accepts the view of Terasen Utilities with respect to the lack of sector
specific allocations for GHG targets and that its demand forecasts have not included the impact of
additional EEC program funding. However, we are disappointed that Terasen did not broaden its
scenario options and, more importantly, provide more detailed information in preparing its
alternative future scenarios. The purpose of resource planning is, in part, to create a better
understanding of how the actions which are being taken in the present and over the medium term
will impact the long term future. To limit the number of scenarios and details related to each
reduces the usefulness of the 2010 LTRP as a tool designed to further understanding. Therefore,
the Panel, while finding that the 2010 LTRP is consistent with British Columbia’s energy objectives
notes that the opportunity to create further understanding and perhaps debate over a key
component of the plan has not been explored.
2.3.2 Requirements Under Sections 6 and 19 of the Clean Energy Act
Sections 6 and 19 of the CEA apply to electric utilities only and accordingly are not relevant to this
Application.
2.3.3 Adequate, Cost‐Effective Demand‐Side Measures
Section 44.1(8) (c) requires the Commission to consider whether the LTRP demonstrates an
intention to pursue adequate, cost‐effective demand‐side measures. The Demand‐Side Measures
Regulation, B.C. Reg. 326/2008 provides direction as to what is required and is listed in its entirety
in Appendix D.
Terasen states that EEC programs are an integral part of its drive to meet the province’s current
and future energy needs and ensure the efficient use of natural gas. In April, 2009 the Commission
approved funding for Terasen Utilities of $41.5 million for EEC activities through the end of 2010.
![Page 245: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/245.jpg)
17
This was added to in the 2010‐2011 Revenue Requirements Negotiated Settlement Agreement
which increased the total funding to $72.3 million through the end of 2011. Terasen reports in its
2009 EEC Annual Report that the 2009 EEC activities were cost‐effective and had a Total Resource
Cost ratio of 1.2.
Terasen also reports it was conducting a Conservation Potential Review (CPR) in late 2010. The
purpose of the CPR is to determine potential for EEC emissions savings from its customer base.
Terasen states that it plans to submit a request for on‐going funding beyond 2011 for all Terasen
Utilities in its 2012 Revenue Requirement Application.
In the 2010 LTRP three EEC scenarios have been outlined. Each reflects a different funding level
and resulting impact on natural gas and GHG savings. Terasen is careful to note that the scenarios
have been developed using the best available data but are subject to change once the CPR results
are available. Terasen explains that the funding and resulting savings amounts outlined in the
Application are not targets but have been “presented to illustrate a range of EEC funding scenarios”
since the full analysis required to make a formal EEC funding application is not yet complete.
(Exhibit B‐1, pp.115‐123; Exhibit B‐2, BCUC 1.38.1)
The CEC submits that a key element for EEC resource planning is the available funding for programs
and the ability to plan and carry them out over multi‐year time frames to achieve the market
transformation being sought by Terasen Utilities. The CEC is concerned that EEC activity in the
resource plan is confined to scenarios A, B and C and does not consider “the market transformation
options and potentials related, particularly to markets in which Terasen is already well versed.”
The CEC further submits that the 2010 LTRP is less robust than it could be if the EEC programs and
activities were planned as multi‐year undertakings to achieve market transformations working with
governments and stakeholder associations to achieve efficiencies, reduced use and GHG
reductions. Having made the above observations the CEC recommends that “the Commission
accept the Terasen Long Term Resource Plan, with reservations regarding the adequacy of the EEC
component of the plans.” (CEC Submission, pp. 12‐13)
![Page 246: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/246.jpg)
18
The Terasen 2010 LTRP provides little detail to assist in the assessment of whether the EEC
measures it will undertake in the future are adequate and cost effective. This is because there is
much work to be completed in advance of the formal EEC funding request which will accompany
2012 RRA to be filed later this year. The Commission Panel understands that this program is in the
initial stages and limited results are available to permit a comprehensive assessment of the
program to date. However, we are satisfied sufficient information has been presented to support
the view that Terasen intends to pursue adequate, cost effective demand‐side measures. Firstly,
the Company has indicated that when the required analytical work for future EEC funding has been
completed it will include measures for low income housing, rental accommodations and student
education in its service area which are the key requirements for program adequacy. Secondly,
while the cost effectiveness of planned EEC measures cannot be validated, the fact that only
“acceptance” of the LTRP is sought will require Terasen to address this when a detailed funding
request is filed. Accordingly, the Commission Panel sees no reason to reject Terasen’s EEC
measures due to a failure to be adequate or cost effective.
In conclusion, the Panel again notes its concern with respect to the lack of detail on EEC plans
available for consideration at this time.
2.3.4 Consideration of the Interests of Persons in British Columbia
The Commission Panel considers acceptance of the 2010 LTRP to be in the interest of British
Columbians who receive or may receive service from Terasen Utilities. In our view the 2010 LTRP
is adequate to meet the requirements as laid out in section 44.1 (2) of the UCA, has adequately
considered the Resource Planning Guidelines and has adequately met the provisions for
consideration as laid out in section 44.1 (8) of the Act. In reaching this conclusion the Panel notes
that acceptance of the 2010 LTRP does not constitute approval of any of the programs or initiatives
addressed within the plan.
![Page 247: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/247.jpg)
19
2.4 Commission Panel Observations
As noted previously, the Interveners as a group were in support of the Commission accepting the
Terasen 2010 LTRP. However, in providing this support some reservations were expressed with the
plan in terms of its content, scope, completeness and the level of detail. In addition, some of the
Interveners had recommendations as to ways in which future long term resource plans could be
improved.
The Commission Panel in accepting the 2010 LTRP would like to be clear that in its view the plan is
adequate only and it agrees with the Interveners that there are many areas which could be
improved upon in future resource plan submissions. In the view of the Panel, the long term
resource plan is an integral part of the strategic planning process. If prepared in sufficient scope
and detail it will provide a solid framework upon which to base future decision making. In
providing a more robust LTRP, Terasen will provide the stakeholders the opportunity to conduct a
more meaningful examination of the longer term future. In addition, the plan will be useful in
supporting initiatives which flow from it.
The Panel observes that the lack of a more robust and complete LTRP may present challenges to
Terasen in persuading the Commission that future applications are appropriate in the absence of
longer term visions, strategies and resource requirement for the utilities. It may become
increasingly difficult for the Commission to favourably consider one‐off applications without the
benefit of a much more comprehensive LTRP.
Section 3.1 which follows will examine the 2010 LTRP and Intervener comments in some detail and
provide some recommendations with respect to future submissions. The Panel believes that these
recommendations along with the stated intention of Terasen Utilities to setup a Resource Plan
Advisory Group will be helpful in promoting further development of the long term planning
process. In addition, in Section 3.2 the Panel will address Terasen’s new business initiatives and
their implications. Before proceeding we would first like to examine the matter of acceptance of
the 2010 LTRP and what it means from the perspective of the Commission.
![Page 248: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/248.jpg)
20
2.5 What Acceptance of the Plan Means
Terasen Utilities in its Final Submission states that it is not seeking approval of any specific
initiatives in the 2010 LTRP. As previously outlined, it is the Company’s intent to bring forward
applications for programs, projects and initiatives outlined in the 2010 LTRP when they are
completed utilizing an appropriate regulatory process. In answer to various IRs Terasen has been
direct and unequivocal in stating that the acceptance of its 2010 LTRP under section 41.1(6) of the
UCA in no way commits the Commission to approval of any program or initiative which might have
been outlined in the resource planning process. In support of this, Terasen in answer to BCUC IR
1.1 states that unless the Commission were to exercise its jurisdiction under section 44.1(7) of the
UCA “the acceptance of the LTRP does not commit the Commission to approve cost estimates in
future applications which may rely on plans recommended in the LTRP...” Terasen makes similar
statements in its response to BCUC IR 1.56.1 and again in BCUC IR 1.8.1. Worthy of note, however,
is the caveat introduced in its response to BCUC IR 1.1 where Terasen states that acceptance of a
LTRP “may be relevant and persuasive depending on the matter at issue and arbitrarily inconsistent
decisions are not expected.”
The Commission Panel agrees with Terasen’s interpretation that acceptance of its 2010 LTRP does
not commit the Commission to approve future applications once they are filed. We acknowledge
the Company’s efforts to keep the more strategic higher level resource planning process separate
from the approval process related to programs and initiatives. In addition, for clarity purposes the
Panel would like to point out our understanding of acceptance includes the following:
• The programs and initiatives outlined in the plan which seem reasonable at a high level are not sufficiently “fleshed out” to determine whether they will pass careful scrutiny when more detail is put forward and an application filed.
• A number of the new initiatives represent a new direction for Terasen and additional process may be required to determine how these new ventures will fit within the context of a regulated utility.
![Page 249: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/249.jpg)
21
• After further analysis Terasen at its discretion may decide to not move forward with some initiatives outlined in the plan.
3.0 DISCUSSION OF ISSUES ARISING
3.1 Quality of the 2010 LTRP
In Section 2.0 the Commission Panel determined that acceptance of the Terasen Utilities 2010 LTRP
is in the public interest. In making this determination, the Panel noted that the 2010 LTRP was in
its view adequate only and there were a number of areas which could be improved upon in future
resource plan submissions.
Among the Interveners, both the CEC and BCOAPO have expressed concerns with respect to the
2010 LTRP.
The CEC submits that there are numerous items which have not been factored into Terasen’s
capital and supply plans over the 20 year planning time frame. These result in the Company failing
to undertake a broader integrated and consolidated view of the issues facing it and the initiatives it
may be considering. In addition, the CEC notes that Terasen’s resource plan fails to “lay sufficient
ground work for the nature and scale of the activities which would be required to contribute
significantly to the BC Energy Objectives.” (CEC Final Submission, pp. 2‐4) The CEC makes the
following recommendations with respect to inclusions in future plans:
• Scenarios which include a full 20 year response to the British Columbia’s energy objectives with particular regard to GHG emission reduction planning.
• Development of a practical number of scenarios related to GHG reduction, electricity and fuel pricing, fuel switching and technology development to allow Terasen to demonstrate its response to varying circumstances.
• Scenarios covering the transformation of trucking markets in BC to natural gas which would include analysis of and impact on the government’s objectives for GHG reduction.
• With respect to EEC funding to address key market transformations to be considered for long term funding based on the requirements necessary to achieve the desired result.
![Page 250: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/250.jpg)
22
• To broaden its resource planning to cover the full 20 year time‐frame and examine alternatives to defray system upgrade costs. Referring to this the CEC submits that among the alternatives consideration should be given to targeted EEC programs where the result might be the deferral of capital expenditures due to conservation and efficiency improvements.
(CEC Final Submission, pp. 6, 8, 11, 13 and 14)
BCOAPO, in addition to raising concerns as to the need to address what it terms to be the “big
question,” makes the observation that given the sector is facing dramatic transformation, the 2010
LTRP projects minimal consideration of the changes which might be expected over the 20 year
period covered by the plan. It is BCOAPO’s position that an aim of the plan is to provide a roadmap
for the evolution and direction of Terasen in future years. Aside from suggesting that Terasen
Utilities may wish to consider a more robust econometric forecasting approach, BCOAPO provides
little specific comment on how the plan can be improved. (BCOAPO Final Submission, pp. 1‐3)
Terasen in Reply notes that the purpose and scope of the resource planning process is found in
section 44.1 of the UCA and the Commission’s Resource Planning Guidelines. Additionally, the
Company submits that the focus for the 2010 LTRP is on forecasted demand and its plans to meet
that demand through resource acquisition and demand‐side measures. Terasen’s position is that
while long‐term resource planning may support or provide context for planned initiatives, it does
not replace the need for individual UCA approvals allowing them to move forward. With respect to
the CEC’s specific recommendations, Terasen notes that many of the requests for further analysis
are in process and points to its answer to the CEC 2.1.1 as supporting this. Further, it sees no need
for the econometric forecasting approach suggested by BCOAPO. On a final note Terasen Utilities
support the value of scenario analysis but express the need to limit the types of analysis as a
practical matter. (Terasen Reply, pp. 1‐6)
![Page 251: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/251.jpg)
23
Commission Panel Directives
As stated previously by the Panel, the 2010 LTRP, while accepted, is viewed as being just adequate.
It falls short of our expectation that resource plans should provide a comprehensive 20 year view of
a utilities trajectory and provide a strong support for programs and initiatives which will be filed
with the Commission. The Panel is also disappointed that there was no attempt to describe a vision
of Terasen Utilities 15‐20 years from now. Adding this sense of vision completes the picture of how
the actions being undertaken in the near future in combination with plans in an early stage of
development will create the Terasen of tomorrow. In this way Terasen can demonstrate it is
capable of meeting the challenges presented by British Columbia’s energy objectives and evolving
government policy.
The foundation of any planning exercise is the analysis which is conducted to better understand the
issues and challenges arising or anticipated to arise in the coming years. This is often supported by
the development of well crafted scenarios outlining in detail a potential outcome or series of
outcomes. The CEC has pointed out in its recommendations that Terasen would benefit from
additional work in this area. Its concern is the limited number of scenarios and lack of detail for
each falls short of providing a clear picture of the impact of the challenges faced by the Company
and how its plans will assist in meeting these challenges. The Panel agrees with the CEC on this
matter.
The Commission Panel has considered this and the balance of evidence in developing a series of
directives for the next resource planning exercise. We believe these will provide some guidance in
moving this process forward. Accordingly, pursuant to section 44.1(2) (g) of the UCA, the Panel
directs the following be included in the next LTRP:
1. Terasen Utilities – A 20 Year Vision
This vision could describe what Terasen may look like in the future: its business lines, its customers,
the expectations for supply and demand and the major issues it will deal with over the 20 year
resource plan timeframe.
![Page 252: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/252.jpg)
24
Areas which are appropriate to be covered in preparing this Vision include but are not limited to
the following:
• The extent to which markets will be transformed.
• The extent to which Terasen can contribute to overall British Columbia GHG reduction objectives.
• The impact the Company’s contributions to GHG reduction will have on demand.
• The importance new technology and new initiatives will have on the overall business, and their significance in terms of percentage share of its traditional business.
• An outline of what initiatives are currently planned or being considered and the status.
• The impact Terasen’s efforts have, and expect to have, on meeting British Columbia’s energy objectives.
• The key drivers impacting the need and timing for human, physical and other (information technology, capital etc.) resource requirements.
2. GHG Reduction Targets – EEC Planning and Impacts of New Initiatives
In respect of GHG reduction targets as impacted by EEC Planning and New Initiatives the
Commission Panel directs future LTRPs to include the following:
• An analysis of the GHG targets as set out in British Columbia’s energy objectives and an estimate of the portion of the required reduction that the Company believes it can reasonably attain over time.
• Greater coordination between EEC planning and the development of future resource plans. This will allow for a more detailed presentation of future EEC programs over a longer time period with expected impacts to be included as part of the LTRP process.
• Development of a limited number of scenarios detailing the impacts of varying degrees of EEC Planning measures on the demand forecast and GHG emission reductions.
• An outline of the impact of the implementation of New Initiatives on the demand forecast and GHG emission reductions.
![Page 253: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/253.jpg)
25
3. New Business Environment and Approach to Demand Forecasting
Future LTRPs need to more adequately convey Terasen Utilities’ understanding of the new energy
and business environment, its impact on gross demand and how resource plans will be reflective of
future demand growth. Accordingly, Terasen is directed to include the following in future resource
plans.
• A description of the new end‐use forecasting methodology, how it compares with Terasen’s traditional demand forecasting approach, and reconciliation of the results of the two different approaches.
• The development of a most likely or reference case demand forecast and outline of the underlying assumptions taking into account potential legislative, regulatory or market transformation changes.
• An integration of the reference case demand forecast with the EEC scenarios and a description of the impacts.
• A detailed outline of New Initiatives and their impact on future demand and GHG reduction targets backed by rigorous analysis of potential scenarios.
• A description of the impact of each scenario on future resource requirements with consideration of the variables which could further affect these scenarios.
Finally, Terasen is directed to provide an estimate of the extent to which its proposed programs
and initiatives will contribute to the achievement of British Columbia’s energy objectives.
![Page 254: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/254.jpg)
26
3.2 New Initiatives
In Section 1.0 the Commission Panel identified Terasens’ low and no‐carbon initiatives (New
Initiatives) as one of the prominent issues of the 2010 LTRP and acknowledged the Interveners’
ultimate concern as to what lines of businesses and regulatory constructs the Utilities will pursue in
the future. The Panel also noted the agreement among parties that this proceeding is not the
appropriate forum for a systematic consideration of various, complex regulatory issues embedded
in these new ventures. In Section 2.0 the Commission Panel accepted the 2010 LTRP but qualified
this acceptance in the case of New Initiatives by stating that “additional process may be required to
determine how these new ventures will fit within the context of a regulated utility.”
Terasen Utilities state that they are pursuing integrated energy solutions through three
approaches:
• Integrated energy systems to encourage use of renewable and low‐carbon thermal technologies for homes, businesses and institutional facilities (the built environment);
• Natural gas vehicles to promote natural gas as a low carbon transportation fuel alternative to diesel and gasoline; and
• The development of carbon neutral biomethane to displace conventional natural gas for homes, businesses and potentially in vehicles.
(Exhibit B‐1, p. 52)
Terasen submits that these New Initiatives are all regulated services and “in the public interest for
Terasen Utilities to pursue.” Terasen acknowledges, however, that it is appropriate for the
Commission to deal with the legal issue as to the extent to which New Initiatives are regulated
public utility services, along with other initiative‐specific considerations, in the other proceedings
addressing the specific initiatives. (Terasen Argument, pp. 6‐7)
![Page 255: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/255.jpg)
27
A fundamental concern of the Panel is how the Commission, as the regulator of public utilities in
British Columbia can oversee the evolution of a traditional utility in the new Clean Energy Act
environment from the regulatory standpoint. The Panel concurs with the views of the Interveners,
especially BCOAPO, which were highlighted in Section 1.0. If the issue of evolution of New
Initiatives and the related business models is left to be answered on an ad hoc basis through one‐
off applications, as suggested by Terasen, the Commission and Interested Parties would miss the
opportunity for a comprehensive and systematic consideration of complex regulatory issues
embedded in the New Initiative applications. This subject is further discussed below.
Regulatory Questions
When New Initiatives involve a movement away from traditional utility services, issues concerning
matters such as business risk, risk premiums, stranded assets, “who pays for what,” and
applicability of EEC funding emerge. There may be a requirement for a template or framework
within which individual projects and applications can be developed. While Terasen submits that
each situation is different and therefore requires its own unique approach, the Panel believes that
perhaps each ‘unique situation’ needs to be tailored within a regulatory policy framework to be
determined after a more holistic review.
Competitive Business vs. Regulated Public Utility
As Terasen Utilities adapts to changes in the new policy environment by diversifying into new low
and no‐carbon business ventures the question also arises as to which activities in the “new world”
belong under the umbrella of a regulated utility. Is there a risk of unfair advantage enjoyed by the
utility which could undermine creation of new competitive enterprises? Is there also a risk of other
unintended consequences which are not evident today but may surface in the near term as the
New Initiatives evolve?
![Page 256: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/256.jpg)
28
Utilities Commission Act
The Commission makes determinations regarding rates pursuant to sections 58 to 61 of the UCA
and must ensure that an application or agreement places fundamentally no greater or less risk on
the ratepayer at large than other rates. In this regard, the Commission Panel remains to be
persuaded that the public interest is served by placing some of the costs and risks related to New
Initiatives on the traditional ratepayer. An example of this challenge is the recent Biomethane
Decision (Order G‐194‐10) which allowed Terasen move forward with the Biomethane Program on
a test basis only for a two year period.
British Columbia Legislation
British Columbia enacted legislation designed to promote carbon reduction and the reduction of
GHG’s. The New Initiatives introduced by Terasen are generally in keeping with BC legislation and
government policy. However, the UCA is silent on specific provisions for the ‘who pays’ question
regarding carbon and GHG reduction related initiatives. Questions therefore arise as to whether
rate payers are subsidising new ventures which may receive a capital contribution from EEC
funding and whether such funding is any different than other EEC subsidies such as incentive
payments for fuel switching, high efficiency furnace replacements etc.
Future Process
The Commission Panel considers that the issues raised above are beyond the scope of the 2010
LTRP and are therefore not further addressed in this Decision. However, the Panel believes that
the changes being contemplated and the issues arising from them are significant enough to
warrant a formal process to address them at a future date in the not too distant future.
![Page 257: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/257.jpg)
29
DATED at the City of Vancouver, in the Province of British Columbia, this First day of February 2011. _____Original signed by:_________________ DENNIS A. COTE PANEL CHAIR/COMMISSIONER _____Original signed by:_________________ LIISA A. O’HARA COMMISSIONER _____Original signed by:_________________ A.W. KEITH ANDERSON COMMISSIONER
![Page 258: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/258.jpg)
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, BC V6Z 2N3 CANADA web site: http://www.bcuc.com
BRIT I SH COLUMBIA
UTIL I T I ES COMMISS ION ORDER NUMBER G‐14‐11
TELEPHONE: (604) 660‐4700 BC TOLL FREE: 1‐800‐663‐1385 FACSIMILE: (604) 660‐1102
…/2
IN THE MATTER Of The Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Terasen Gas Inc. and Terasen Gas (Vancouver Island) Inc. and Terasen Gas (Whistler) Inc. 2010 Long Term Resource Plan
BEFORE: D.A. Cote, Panel Chair/Commissioner A.W.K. Anderson Commissioner February 1, 2011 L.A. O’Hara, Commissioner
O R D E R WHEREAS: A. On July 15, 2010 Terasen Gas Inc., Terasen Gas (Vancouver Island) Inc. and Terasen Gas (Whistler) Inc.
(collectively Terasen Utilities) filed their 2010 Long Term Resource Plan (2010 LTRP; or Application) in accordance with section 44.1 of the Utilities Commission Act (the Act) and the British Columbia Utilities Commission’s (the Commission) Resource Planning Guidelines;
B. The Application seeks acceptance of the 2010 LTRP pursuant to section 44.1(6) of the Act and, among other
items, examines future demand and supply resource conditions over the next 20 years and recommends actions needed during the next four years to ensure customers’ energy needs are met over the long term. Terasen Utilities does not seek approval of any particular elements of the plan;
C. On August 4, 2010, the Commission issued Order G‐124‐10 initiating a regulatory review process that
included a Procedural Conference on September 21, 2010 and two rounds of Information Requests;
D. Following the Procedural Conference held on September 21, 2010, Order G‐146‐10 was issued on September 24, 2010 and established an Amended Regulatory Timetable, which provided for (a) a schedule for all Parties to make submissions on the need for a Second Procedural Conference, (b) a Default Schedule for a Written Hearing without the provision of a Second Procedural Conference and (c) an Alternative Schedule for a Written Hearing with the provision for a Second Procedural Conference;
E. Following the Commission Panels’ consideration of the submissions of the Parties with respect to the need
for a second Procedural Conference, Commission Order G‐169 established that the regulatory review of the 2010 LTRP will proceed as a Written Hearing in accordance with the Default Schedule in the Amended Regulatory Timetable attached to Order G‐146‐10;
![Page 259: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/259.jpg)
2
Orders Orders/G‐14‐11_TUS 2010 LTRP Decision
BRIT ISH COLUMBIA
UTIL IT IES COMMISS ION ORDER NUMBER G‐14‐11
F. The Commission Panel has reviewed the Application, the evidence and the submissions and concludes that
acceptance of the 2010 LTRP is in the public interest. NOW THEREFORE the Commission orders that the 2010 LTRP is accepted. Terasen Utilities is to comply with the directives contained in the Decision, issued concurrently with this Order, when filing its next long term resource plan. DATED at the City of Vancouver, in the Province of British Columbia, this First day of February 2011. BY ORDER Original signed by: D.A. Cote Panel Chair/Commissioner
![Page 260: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/260.jpg)
APPENDIX A Page 1 of 2
Utilities Commission Act Section 44.1 Long‐term resource and conservation planning
44.1 (1) [Repealed 2010‐22‐65.]
(2) Subject to subsection (4), a public utility must file with the commission, in the form and at the times the commission requires, a long‐term resource plan including all of the following:
(a) an estimate of the demand for energy the public utility would expect to serve if the public utility does not take new demand‐side measures during the period addressed by the plan;
(b) a plan of how the public utility intends to reduce the demand referred to in paragraph (a) by taking cost‐effective demand‐side measures;
(c) an estimate of the demand for energy that the public utility expects to serve after it has taken cost‐effective demand‐side measures;
(d) a description of the facilities that the public utility intends to construct or extend in order to serve the estimated demand referred to in paragraph (c);
(e) information regarding the energy purchases from other persons that the public utility intends to make in order to serve the estimated demand referred to in paragraph (c);
(f) an explanation of why the demand for energy to be served by the facilities referred to in paragraph (d) and the purchases referred to in paragraph (e) are not planned to be replaced by demand‐side measures;
(g) any other information required by the commission.
(3) The commission may exempt a public utility from the requirement to include in a long‐term resource plan filed under subsection (2) any of the information referred to in paragraphs (a) to (f) of that subsection if the commission is satisfied that the information is not applicable with respect to the nature of the service provided by the public utility
(4) [Repealed 2010‐22‐65.]
(5) The commission may establish a process to review long‐term resource plans filed under subsection (2).
(6) After reviewing a long‐term resource plan filed under subsection (2), the commission must
(a) accept the plan, if the commission determines that carrying out the plan would be in the public interest, or
(b) reject the plan.
(7) The commission may accept or reject, under subsection (6), a part of a public utility's plan, and, if the commission rejects a part of a plan,
(a) the public utility may resubmit the part within a time specified by the commission, and
![Page 261: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/261.jpg)
APPENDIX A Page 2 of 2
(b) the commission may accept or reject, under subsection (6), the part resubmitted under paragraph (a) of this subsection.
(8) In determining under subsection (6) whether to accept a long‐term resource plan, the commission must consider
(a) the applicable of British Columbia's energy objectives,
(b) the extent to which the plan is consistent with the applicable requirements under sections 6 and 19 of the Clean Energy Act,
(c) whether the plan shows that the public utility intends to pursue adequate, cost‐effective demand‐side measures, and
(d) the interests of persons in British Columbia who receive or may receive service from the public utility.
(9) In accepting under subsection (6) a long‐term resource plan, or part of a plan, the commission may do one or both of the following:
(a) order that a proposed utility plant or system, or extension of either, referred to in the accepted plan or the part is exempt from the operation of section 45 (1);
(b) order that, despite section 75, a matter the commission considers to be adequately addressed in the accepted plan or the part is to be considered as conclusively determined for the purposes of any hearing or proceeding to be conducted by the commission under this Act, other than a hearing or proceeding for the purposes of section 99.
![Page 262: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/262.jpg)
APPENDIX B Page 1 of 1
THE REGULATORY PROCESS
ACTION DATE (2010)
Intervener Registration Deadline September 14
Procedural Conference September 21
Commission Information Request No. 1 September 22
Intervener Information Requests No. 1 September 28
Terasen Utilities Responses to Information Requests No. 1 October 18
Commission and Intervener Information Requests No. 2 October 28
Terasen Utilities Responses to Information Requests No. 2 November 8
Submissions on the Need for a Second Procedural Conference November 10
Terasen Utilities Final Argument November 16
Interveners’ Final Arguments November 30
Terasen Utilities Reply December 10
The Commission received Final Arguments from BCOAPO, BCSEA and the CEC. Terasen Utilities addressed the Intervenor Arguments in its Reply on December 10, 2010.
![Page 263: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/263.jpg)
APPENDIX C Page 1 of 1
2010 LONG TERM RESOURCE PLAN AND BRITISH COLUMBIA’S ENERGY OBJECTIVES
Source: Terasen Utilities Final Submission, pp. 7‐8
![Page 264: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/264.jpg)
PROVINCE OF BRITISH COLUMBIA REGULATION OF THE MINISTER OF
ENERGY, MINES AND PETROLEUM RESOURCES
Ministerial Order No.
1, Richard Neufeld, Minister of Energy, Mines and Petroleum Resources, order that the attached regutation is made.
I NOV 7 2008 1
wavawz bef h,ao d Minister of Energy, Mines and
Petroleum Resources
(7hi1pan h for dminitlroh've purpores only mui b not pan of <he Order) Authority under which Order is made:
Act and section:- utilities Commission Act, R.s.B.C. 1996, c. 473. s. 125. 1 (4) (e)
Other (specify):-
November 3,2008 a1 175n008n7
APPENDIX D Page 1 of 5
![Page 265: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/265.jpg)
DEMAND-SIDE MEASURES REGULATION
Definitions
1 In this regulation:
"Act" means the Utilities Commisswn Act;
"bulk electricity purchaser" means a public utility that purchases electricity from the authority for resale to the public utility's customers;
"community engagement program" means a program delivered by (a) a public utility to a public entity either
(if to increase the public entity's awareness about ways to increase energy conservation and energy efficiency or to encourage the public entity to conserve energy or use energy efficiently, or
(ii) to assist the public entity to increase the public's awareness about ways to increase energy conservation and energy efficiency or to encourage the public to conserve energy or use energy efficiently, or
(b) a public utility in cooperation with a public entity to increase the public's awareness about ways to increase energy conservation and energy efficiency or to encourage the public to conserve energy or use energy efficiently;
"education program" means an education program about energy conservation and efficiency, and includes the funding of the development of such a program;
"energy device" has the same meaning as in the Energy EBciency Act: "energy efficiency training" means training for persons who
(a) manufacture, sell or install energy-efficient products, (b) design, construct or act as a real estate bmker with respect to
energy-efficient buildings, (c) manage energy systems in buildings, or (d) conduct energy efficiency audits;
"energy-using produet" has the same meaning as in the Energy EfFciency Act (Canada);
"expenditure portfolio" means the class of demand-side measures that is composed of all of the demand-side measures proposed by a public utility in an expenditure schedule submitted under section 44.2 of the Act;
"low-income household" means a household whose residents receive service from the public utility and who have, in a taxation year, a before-tax annual household income equal to or less than the low-income cut off established by Statistics Canada for that year for households of that type;
"plan portfolio" means the class of demand-side measures that is composed of all of the demand-side measures proposed by a public utility in a plan submitted under section 44.1 of the Act;
"pubtic awareness program" means a pmgram delivered by apublic utility
page 2 of 5
APPENDIX D Page 2 of 5
![Page 266: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/266.jpg)
(a) to increase the awareness of the public, including the public utility's customers, about ways to increase energy conservation and energy efficiency or to encourage the public, including the public utility's customers, to conserve energy or use energy efficiently, or
(b) to increase participation by the public utility's customers in other demand-side measures proposed by the public utility in an expenditure portfolio or a plan portfolio
but does not include a program to increase the amount of energy sold or delivered by the public utility;
"public entity" means a local government, fmt nation, non-profit society incorporated under the Sociery Act or trade union;
"regulated item" means (a) an energy device, (b) an energy-using product, (c) a building design, or (d) thermal insulation;
"school" means a school regulated under the School Act or the Independent School Act;
"specitied demand-side measure" means (a) a demand-side measure referred to in section 3 (c) or (d), @) the funding of energy efficiency training, (c) a community engagement program, or (d) a technology innovation program;
*specified standard" means a standard in any of the following: (a) the Energy Efficiency Standards Regulation, B.C. Reg. 389193; (b) the Energy Efficiency Regulations S.0.R.194-651; (c) the British Columbia Building Code, if the standard promotes energy
conservation or the efficient use of energy; "technoIogy innovation program" means a program
(a) to develop a technology, a system of technologies, a building design or an industrial facility design that is
(i) not commonly used in British Columbia, and (ii) the use of which could directly or indirectly result in significant
reductions of energy use or significantly more efficient use of energy, (h) to do what is described in paragraph (a) and to give demonstrations to the
public of any results of doing what is described in paragraph (a), or (c) to gather information about a technology, a system of technologies, a
building design or an industrial design referred to in paragraph (a).
Application
2 (1) This regulation applies only with respect to demand-side measures pmposed by the authority.
page 3 of 5
APPENDIX D Page 3 of 5
![Page 267: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/267.jpg)
(2) Effective June I, 2009, (a) subsection (I) is repeated, and (b) section 3 does not apply to a public utility that is owned or operated by a
local government or has fewer than 10,000 customers.
Adequacy
3 A public utility's plan portfolio is adequate for the purposes of section 44.1 (8) (c) of the Act only if the plan portfolio includes all of the following:
(a) a demand-side measure intended speeificaily to assist residents of low-income households to reduce their energy consumption;
(b) if the plan portfolio is submitted on or after June 1, 2009, a demand-side measure intended specifically to improve the energy efficiency of rental accommodations;
(c) an education program for students enrolled in schools in the public utility's service area,
(d) if the plan portfolio is submitted on or after June 1, 2009, an education program for students enrolled in post-secondary institutions in the public utility's service area.
Cost effectiveness
4 (1) Subject to subsections (4) and (5). the commission, in determining for the purposes of section 44.1 (8) (c) or 44.2 (5) (d) of the Act the cost-effectiveness of a demand-side measure proposed in an expenditure portfolio or a plan portfolio, may compare the costs and benefits of (a) the demand-side measure individually, (b) the demand-side measure and other demand-side measures in the portfolio,
or (c) the portfolio as a whole
(2) In determining whether a demand-side measure referred to in section 3 (a) is cost effective, the commission must, (a) in addition to conducting any other analysis the commission considers
appropriate, use the total resource cost test, and (b) in using the total resource cost test, consider the benefit of the demand-side
measure to be 130% of its value when determined without reference to this subsection.
(3) In determining whether a demand-side measure of a bulk electricity purchaser is cost-effective, the commission must consider the benefit of the avoided supply cost to be the authority's long-term marginal cost of acquiring new electricity to replace the electricity sold to the bulk electricity purchaser and not the bulk electricity purchaser's cost of purchasing electricity from the authority.
(4) The commission must determine the cost-effectiveness of a specified demand-side measure proposed in a plan portfolio or an expenditure portfolio by determining whether the portfolio is cost effective as a whole.
page 4 of 5
APPENDIX D Page 4 of 5
![Page 268: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/268.jpg)
(5) If the commission is satisfied that a public awareness program proposed in a plan portfolio or an expenditure ponfolio is likely to accomplish the goals set out in paragraph (a) or (b) of the defmition of "public awareness program", the commission must determine the cost-effectiveness of the program by determining whether the portfolio is cost-effective as a whole.
(6) The commission may not determine that a proposed demand-side measure is not cost effective on the basis of the result obtained by using a ratepayer impact measure test to assess the demand-side measure.
(7) In considering the benefit of a demand-side measure that, in the commission's opinion, will increase the market share of a regulated item with respect to which there is a specified standard that has not yet commenced, the commission may include in the benefit a proportion of the benefit that, in the commission's opinion, will result from the commencement and application of the specified standard with respect to the regulated item.
page 5 of 5
APPENDIX D Page 5 of 5
![Page 269: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/269.jpg)
APPENDIX E Page 1 of 3
IN THE MATTER OF
the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Terasen Gas Inc., Terasen Gas (Vancouver Island) Inc. and Terasen Gas (Whistler) Inc. 2010 Long Term Resource Plan
Project No.
EXHIBIT LIST
Exhibit No. Description COMMISSION DOCUMENTS A‐1 Letter dated August 4, 2010 – Appointment of Commission Panel
A‐2 Letter dated August 4, 2010 – Preliminary regulatory timetable
A‐3 Letter dated August 10, 2010 – Amended regulatory timetable
A‐4 Letter dated September 22, 2010 – Commission Information Request No. 1
A‐5 Letter dated September 24, 2010 – Reasons for Decision and Regulatory Timetable
A‐6 Letter dated October 28, 2010 – Commission Information Request No. 2
A‐7 Letter dated October 28, 2010 – Start Time for Second Procedural Conference
A2‐1 Letter dated October 27, 2010 – BCUC Staff Submission “Retail Markets
Downstream of the Utility Meter Guidelines (April 2007)”
A‐8 Letter dated November 12, 2010 – Second Procedural Conference cancelled
APPLICANT DOCUMENTS TUS B‐1 TERASEN GAS INC., TERASEN GAS (VANCOUVER ISLAND) INC. AND TERASEN GAS (WHISTLER) INC.
(TUS) Letter dated July 15, 2010 ‐ Application for 2010 Long Term Resource Plan
B‐2 Letter dated October 18, 2010 – REVISED Filing to BC Hydro IR No. 1 to include Attachments
![Page 270: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/270.jpg)
APPENDIX E Page 2of 3 Exhibit No. Description B‐3 Letter dated October 18, 2010 – TUS Filing Response to BCOAPO IR No.1
B‐4 Letter dated October 18, 2010 – TUS Filing Response to BCSEA IR No.1
B‐5 Letter dated October 18, 2010 – TUS Filing Response to BCUC IR No.1
B‐6 Letter dated October 18, 2010 – TUS Filing Response to CEC IR No.1
B‐6‐1 Letter dated November 8, 2010 – TUS Filing Erratum to CEC IR1.22.4
B‐7 Letter dated November 8, 2010 – TUS Filing Response to BCOAPO IR No.2
B‐8 Letter dated November 8, 2010 – TUS Filing Response to BCSEA IR No.2
B‐8‐1 Letter dated November 8, 2010 – CONFIDENTIAL Attachment 23.1 BCSEA IR2
B‐9 Letter dated November 8, 2010 – TUS Filing Response to CEC IR No.2
B‐10 Letter dated November 8, 2010 – TUS Filing Response to BCUC IR No.2
B‐11 Letter dated November 10, 2010 – TUS Submissions on Second Procedural Conference
INTERVENOR DOCUMENTS C1‐1 MINISTRY OF ENERGY, MINES AND PETROLEUM RESOURCES (MEMPR) Online registration
dated September 9, 2010 ‐ Request for Intervener Status by Erik Kaye
C2‐1 BRITISH COLUMBIA HYDRO AND POWER AUTHORITY (BCH) – Online registration dated September 13, 2010 ‐ Request for Intervener Status by Joanna Sofield
C2‐2 Letter dated September 28, 2010 – BCH Filing Information Request No. 1 to TUS
C3‐1 BC SUSTAINABLE ENERGY ASSOCIATION AND SIERRA CLUB OF BRITISH COLUMBIA CHAPTER (BCSEA)‐ Online Registration dated September 13, 2010 ‐ Filing Intervener Registration by William Andrews and Thomas Hackney
C3‐2 Letter dated September 28, 2010 – BCSEA Filing Information Request No. 1
C3‐3 Letter dated October 28, 2010 – BCSEA Filing Information Request No. 2
C3‐4 Letter dated November 10, 2010 – BCSEA Submissions on Second Procedural Conference
![Page 271: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/271.jpg)
APPENDIX E Page 3 of 3
Exhibit No. Description C4‐1 BRITISH COLUMBIA OLD AGE PENSIONERS’ ORGANIZATION (BCOAPO) VIA EMAIL Letter Dated
September 14, 2010 ‐ Request for Intervener Status by Jim Quail and James Wightman
C4‐2 Letter dated September 28, 2010 – BCOAPO Filing Information Request No. 1
C4‐3 Letter dated October 28, 2010 – BCOAPO Filing Information Request No. 2
C4‐4 Letter dated November 10, 2010 – BCOAPO Submissions on Second Procedural Conference
C5‐1 COMMERCIAL ENERGY CONSUMERS ASSOCIATION OF BRITISH COLUMBIA (CEC) – Letter dated September 20, 2010 – Request for Intervener Status by Owen Bird Law Corporation
C5‐2 Letter dated September 30, 2010 – CEC Filing Information Request No. 1
C5‐3 Letter dated October 28, 2010 – CEC Filing Information Request No. 2
C5‐4 Letter dated November 10, 2010 – CEC Submissions on Second Procedural Conference
![Page 272: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/272.jpg)
![Page 273: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/273.jpg)
![Page 274: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/274.jpg)
![Page 275: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/275.jpg)
![Page 276: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/276.jpg)
![Page 277: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/277.jpg)
![Page 278: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/278.jpg)
![Page 279: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/279.jpg)
![Page 280: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/280.jpg)
![Page 281: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/281.jpg)
![Page 282: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/282.jpg)
IN THE MATTER OF
CORIX MULTI‐UTILITY SERVICES INC.
NEIGHBOURHOOD UTILITY SERVICE AT UNIVERCITY BURNABY
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
DECISION
May 6, 2011
BEFORE:
D. A. Cote, Commissioner L. A. O’Hara, Commissioner D. Morton, Commissioner
![Page 283: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/283.jpg)
TABLE OF CONTENTS
Page No.
1.0 EXECUTIVE SUMMARY 1
2.0 INTRODUCTION 4
2.1 The Applicant 4
2.2 Key Stakeholders 4
2.3 Orders Sought 7
2.4 Regulatory Process 7
2.5 Evolving Energy Environment 7
3.0 PROJECT DESCRIPTION 9
3.1 Background and Need 9
3.2 Load Analysis and Energy Demand Forecast 9
3.3 Project Alternatives 10
3.3.1 Screening Analysis 10
3.3.2 Potential for Combined Solution for UniverCity and SFU Campus 12
3.4 Project Scope 12
3.4.1 Description of District Energy System 12
3.4.2 Production Facilities 14
3.4.3 Thermal Distribution System and Energy Transfer Stations 17
3.5 Implementation Schedule 17
4.0 PROJECT COSTS AND RATE STRUCTURE 19
4.1 Capital Costs 19
4.2 Capital Contribution and Incentives 20
4.3 System Operating Costs 20
4.4 Debt and Equity Financing 22
4.4.1 Capital Structure 22
4.4.2 Debt Cost 23
4.4.3 Return on Equity 23
4.5 Revenue Requirements 24
4.6 Rate Design 25
![Page 284: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/284.jpg)
TABLE OF CONTENTS
Page No.
4.7 Project Risk 26
4.8 Proposed Levelized Rate 27
5.0 KEY ISSUES 28
5.1 Introduction 28
5.2 Adequacy of Public Consultation 28
5.3 Alignment with Clean Energy Act and Provincial Government Policy 30
5.3.1 Alignment with British Columbia’s Energy Objectives 30
5.3.2 Approved Integrated Resource Plan 30
5.3.3 Requirements under Sections 6 and 19 of the Clean Energy Act 31
5.4 Availability and Costs of Biomass 31
5.5 Load Analysis and Energy Forecast 33
5.6 Consideration of Agreements with SFU Trust and BC Hydro 34
5.7 Risk of Stranded Assets 35
5.8 Adequacy of Project Description 37
5.9 Adequacy of Project Cost Estimates 40
6.0 COMMISSION DECISION AND DETERMINATIONS 42
6.1 Commission Decision 42
6.2 Further Determinations 44
6.2.1 Rate Design 45
6.2.2 Capital Structure 45
6.2.3 Debt Cost 45
6.2.4 Return on Equity 46
6.2.5 Levelized Rates 49
6.2.6 Terms and Conditions of Service 49
7.0 COMMISSION PANEL COMMENT 50
8.0 SUMMARY OF DIRECTIVES 51
![Page 285: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/285.jpg)
TABLE OF CONTENTS
Page No.
COMMISSION ORDER C‐7‐11 APPENDICES APPENDIX A Regulatory Timetable APPENDIX B Clean Energy Act APPENDIX C List of Exhibits
![Page 286: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/286.jpg)
1.0 EXECUTIVE SUMMARY
On November 26, 2010, Corix Multi‐Utility Services Inc. (CMUS or the Company) filed an
Application for a Certificate of Public Convenience and Necessity (CPCN) under sections 45 and 46
of the Utilities Commission Act (the Act) to construct and operate an alternative energy‐based
district energy system for the UniverCity residential community on Burnaby Mountain. The
Company also sought approval under sections 56, 60, and 61 of the Act for a deemed capital
structure, Return on Equity (ROE), long term debt financing costs, a levelized rate structure and a
revenue deficiency deferral account.
UniverCity is being developed by Simon Fraser University (SFU) Trust in four Phases. This
application pertains to Phases 3 and 4 which were started in 2011 with a completion date
scheduled for 2019. The objective of SFU Trust is to implement alternative energy technologies to
achieve reductions in GHG emissions and enhance the sustainability of the UniverCity community.
Accordingly, SFU Trust is mandated to develop UniverCity in a sustainable manner and building
developers must adhere to a set of green building requirements.
The proposed district energy system consists of a production facility and a distribution system. The
production facility is planned to be built in two steps; a natural gas fuelled temporary Central
Energy Plant (CEP) followed in 2016 by a permanent CEP fuelled by an alternative energy source
likely to be Biomass. Both of these will be supported by a distribution system consisting of main
trunk pipes, branch connections and energy transfer stations which will be constructed using a
phased approach. Based on the anticipated energy intensities of the expected types of buildings,
CMUS estimates peak heating load at 5.7 MW with annual heat sales of 14,020 MWh.
In assessing the alternative energy sources a number of options were considered and following a
screening analysis CMUS has proposed using Biomass to provide the base load energy for the
permanent CEP. In addition, the potential for a combined solution for UniverCity and SFU campus
as well as the data centre option remains under consideration.
![Page 287: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/287.jpg)
2
The total capital costs for the temporary and permanent CEPs are forecast to be $12.215 million
over the nine year development period. The developers will make a contribution of $1.00 per
square foot of buildable area on each development parcel which is expected to defray
$2.223 million of these costs. In addition, BC Hydro through its Power Smart Sustainable
Communities Program has indicated support for the project. The parties are in the process of
developing an agreement which is estimated will provide a capital incentive of $1.3 million to
CMUS following implementation of the permanent CEP. Operating costs for the permanent CEP
are estimated at $319,000 annually in 2017.
During the review process the Commission Panel identified the following key issues:
• Adequacy of Public Consultation;
• Alignment with Clean Energy Act and Provincial Government Policy;
• Availability and Costs of Biomass;
• Adequacy of the Load Analysis and Energy Forecast;
• Consideration of Agreements with SFU Trust and BC Hydro;
• Risk of Stranded Assets;
• Adequacy of Project Description; and
• Adequacy of Cost Estimates.
After considering these key issues, the Commission Panel has determined there is sufficient
evidence to support partial acceptance of this CPCN Application. Accordingly, the Panel grants a
CPCN for the temporary CEP but does not approve at this time construction of the permanent CEP.
The Panel is supportive of the alternative energy solution but is concerned with the lack of
certainty and detail related to it. In accordance with this, the Panel has suspended further
consideration of this matter until CMUS is able to more adequately meet the requirements as
outlined in this Decision.
For the purpose of determining the rates to be changed the Commission Panel has, among other
things, also approved the following:
![Page 288: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/288.jpg)
3
• A Premium of 50 basis points over the benchmark ROE;
• The proposal to finance 60 percent of the rate base with deemed debt and the remaining 40 percent with common equity;
• A debt rate of 6 percent;
• The proposal for a rate design with a 60 percent fixed monthly charge and a 40 percent variable charge but to be recalculated using a 20 year levelized rate based solely on the temporary CEP.
![Page 289: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/289.jpg)
4
2.0 INTRODUCTION
This Decision deals with an application by Corix Multi‐Utility Services Inc. for a Certificate of Public
Convenience and Necessity to construct and operate an alternative energy‐based district energy
system (DES) for UniverCity, a residential community being developed on Burnaby Mountain (the
Application). The DES, which consists of a central energy plant, a distribution piping system and
energy transfer stations, will provide thermal energy service for space heating and hot water to this
community.
The proposed Biomass based DES will be developed in phases with early building loads served by a
temporary natural gas boiler plant that will be transitioned to what may be a permanent biomass‐
based central energy plant when the customer load reaches sufficient volume. The rationale for
this phased approach is to allow the utility to match capital investment with growth “while
providing a flexible and economic solution for transition to renewable energy.” (Exhibit B‐1, p. 6)
2.1 The Applicant
Corix Multi‐Utility Services Inc. is a subsidiary of Corix Utilities Inc. (Corix), a company incorporated
in British Columbia and headquartered in Vancouver. CMUS provides multi‐utility and energy
utility services to customers across Canada and manages a portfolio of regulated utility systems in
BC. CMUS will be responsible for development and ownership of the Neighbourhood Utility Service
(NUS), which is a community based utility with a primary responsibility to develop, implement,
operate and maintain the district energy system.
2.2 Key Stakeholders
UniverCity is a residential community being developed by SFU Community Trust which is building a
sustainable community that provides its residents with highly energy efficient buildings and a true
live‐work‐play community. Accordingly, the environmental benefits associated with a DES based
on alternative energy sources are attractive to the SFU Community Trust.
![Page 290: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/290.jpg)
5
BC Hydro has entered into discussions with CMUS to provide a capital incentive to build the NUS at
UniverCity. In addition to the CPCN, the NUS will require a building and development permit from
the City of Burnaby to construct the central energy plant. Urban Wood Waste Recyclers have
entered into discussions to develop a fuel supply agreement for the UniverCity NUS Biomass
project. Both BC Hydro and Urban Wood Waste Recyclers have submitted Letters of Interest to
Corix. (Exhibit B‐1, Appendix B)
The proposed project will influence different groups of individuals which should be considered
from the public interest perspective. The first group is the ratepayers who include current and
future purchasers of Phase 3 and Phase 4 of the UniverCity development. The second group is
made up of those in the surrounding area who may be affected by the project. The third group is
comprised of the general public who stand to gain because of reduced carbon emissions and GHG
levels.
![Page 291: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/291.jpg)
6
The following diagram depicts the key stakeholders of the project.
![Page 292: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/292.jpg)
7
2.3 Orders Sought
The Company is seeking the following:
1. A CPCN under Sections 45 and 46 of the Utilities Commission Act (Act, UCA) for the
construction and operation of a proposed community‐based district energy system at UniverCity, Burnaby, BC;
2. Approval under sections 56, 60 and 61 of the Act of the proposed revenue requirements, rate design and rates described in the Application; specific approvals requested in this area include:
• A deemed capital structure of 60 percent debt and 40 percent equity;
• Long‐term debt financing costs estimated at 7.0 percent, subsequently revised down to 6.5 percent (Exhibit B‐3‐1, BCUC 1.17.4) and a ROE that is 200 points above the benchmark utility; (Exhibit B‐1, p. 26)
• A 20‐year levelized rate structure and rate design of 60 percent fixed and 40 percent variable; and
• A revenue deficiency deferral account which is to capture those portions of revenue requirements which are not recovered in the early stages of development. (Exhibit B‐1, pp. 11‐12)
2.4 Regulatory Process
The review of the Application was conducted by way of a written proceeding. The only Intervener
was FortisBC Energy Inc. (formerly Terasen Gas Inc.). The Regulatory Timetable is summarized in
Appendix A.
2.5 Evolving Energy Environment
This Application is an illustration of the evolving energy environment driven by both society at large
as well as the initiatives and legislation introduced by the Provincial Government. One of the
earlier similar examples is the Dockside Green Energy (DGE) Project in Victoria, BC. The
![Page 293: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/293.jpg)
8
Commission granted a CPCN to the DGE in April 2008 to construct and operate a district energy
system to provide energy service to the Dockside Green development built on the Inner Harbour in
Victoria. (Order C‐1‐08)
In the 2007 BC Energy Plan the Provincial Government introduced a series of initiatives intended to
reduce GHG missions, improve energy efficiency and conservation and to achieve sustainability. In
particular, the plan provided policy guidelines in the area of alternative energy that support the
development of non‐traditional sources of energy and encourage conservation to enable the
Province to achieve electrical energy self‐sufficiency by 2016.
CMUS states that the implementation of an alternative energy‐based district energy system aligns
with the Provincial Government’s green energy objectives under the 2007 BC Energy Plan and the
Clean Energy Act (CEA) because it will result in energy savings and will ultimately provide a benefit
of Green House gas (GHG) reductions to the whole community on Burnaby Mountain. (Exhibit B‐1,
pp. 6, 52)
Relevant sections of the CEA are reproduced in Appendix B.
![Page 294: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/294.jpg)
9
3.0 PROJECT DESCRIPTION
3.1 Background and Need
The development is on land adjacent to the SFU campus. Property in the UniverCity development
is leased by the SFU Community Trust (SFU Trust) to private developers on 99 year prepaid leases.
UniverCity is being developed in four Phases. The buildings in Phase 1 and Phase 2 have already
been completed and are not part of this Application. Phases 3 and 4 were begun in 2011, with
completion scheduled for 2019. When completed, the total development area is projected to be
206,572 square meters, of which 99 percent will be multi‐unit residential and 1 percent
commercial/office/daycare. (Exhibit B‐1, p. 13‐14)
CMUS states that SFU Trust has identified the NUS as one of the ways to enhance sustainability of
the UniverCity community. Developers of Phase 3 and Phase 4 are required to adhere to a set of
green building requirements. The Trust’s objectives are to provide community residents and
businesses with cost‐competitive thermal energy thereby enhancing the environmental
performance of the development. CMUS submits that the NUS will be the exclusive provider of
thermal energy services for both space heating and domestic hot water for Phases 3 and 4 of
UniverCity, as well as Parcel 25. (Exhibit B‐1 p. 13) CMUS also states that the City of Burnaby’s
Bylaw No. 12760 requires the developer to comply with the UniverCity Design Guidelines and
Requirements. The Green Building Requirements in that Bylaw also require the developers to build
a thermal energy system that is compatible and able to connect to the NUS and prohibits them
from using electric resistance heating. (Exhibit B‐4, BCUC 2.2.1, 2.2.2)
3.2 Load Analysis and Energy Demand Forecast
Based on the development schedule as provided by SFU Trust and anticipated energy intensities of
the expected types of buildings, CMUS estimates the peak heating load at 5.7 MW with annual
energy sales of 14,020 MWh. The annual demand forecast reflecting the build out of new units
![Page 295: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/295.jpg)
10
over the period is listed in Table 1 (below).
Annual Demand Forecast Table 1
Source: (Exhibit B‐1, p. 16)
CMUS states that this data was used to construct the load duration curve to facilitate proper sizing
of the energy system to satisfy load requirements. (Exhibit B‐1, pp. 14‐16)
CMUS has noted that the demand forecast has a high level of uncertainty and will require actual
operating experience before the energy demand can be forecasted with any degree of accuracy. In
fact, CMUS states that it has no assurance that it will achieve the projected customer base. In
addition, the developer of each building will have the option of implementing onsite efficiency
measures. The potential exists for the efficiency of the building to be increased with a
corresponding decrease in energy use from the CEP. (Exhibit B‐1, pp. 24‐28)
3.3 Project Alternatives
3.3.1 Screening Analysis
CMUS has focused the screening analysis on alternative energy sources for fuelling the CEP. The
following scenarios were modelled:
• Local Sewer Flows;
• Energy from the ground source heat pumps (GSHPs);
• Waste energy captured from the data centre (Data Centre);
• Available woody residues (Biomass); and
• Natural Gas in a co‐generation scheme (Cogeneration)
![Page 296: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/296.jpg)
11
CMUS presented a screening analysis of the above alternatives compared to a base case of natural
gas heating. The local sewer option was combined with the GSHPs because the Company claimed
there was insufficient heat recovered from the sewer system alone. The screening analysis criteria
were:
• Land Area for plant
• Alternative energy delivered
• Natural Gas and/or electricity used
• Inputs
• Maintenance and Staff Costs
• Capital Costs
• Natural Gas costs
• Electricity Cost
• Alternate Fuel Costs
• Payback in years at current utility pricing
• Payback in years at future utility pricing
• Greenhouse Gas savings
CMUS states that payback times for the Data Centre and the Biomass option were under 20 years,
while the Cogeneration option was approximately 38 years and the Sewer/GSHP was greater than
50 years. GHG savings for the Sewer/GSHP, Data Centre and Biomass were approximately
2,400 tonnes as compared to the natural gas and electricity base case, while the Cogeneration
option produced 4,300 additional tonnes over the base case. (Exhibit B‐1, p. 17)
Based on results of the screening analysis, CMUS eliminated both the sewer and the Natural Gas
Cogeneration options. The Biomass and the data centre heat pump options were selected for
further analysis. (Exhibit B‐1, p. 19)
![Page 297: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/297.jpg)
12
For the Data Centre option, CMUS considered using the waste heat from SFU’s new data centre.
The new facility is part of a five year capital plan prepared by SFU in 2008. A funding application for
the upgrades to the building to house the data centre was not approved. Consequently, SFU is
continuing to develop the new data centre in phases, but there is currently no approved capital
budget and the development plan is 1‐2 years behind schedule. Accordingly, the Company
suspended consideration of the data centre due to the development risk, but states that it may
look at it again if the data centre proceeds. (Exhibit B‐3, BCUC 1.7.1, 1.7.2, 1.7.2.1, 1.7.2.2)
As a result of the screening analysis, CMUS provided a further detailed technical and cost analysis
of its proposal to use Biomass for the base load energy for the permanent CEP. (Exhibit B‐1, p. 33)
3.3.2 Potential for Combined Solution for UniverCity and SFU Campus
As an additional solution CMUS states that Corix, SFU and SFU Community Trust are collectively
working together to assess the potential of a combined solution to provide thermal energy to
UniverCity residents as well as the SFU campus (Combined Solution). This scenario calls for a
Biomass based central energy plant to be implemented earlier than the smaller scale NUS CEP.
CMUS reports that applications for assistance funding filed jointly with SFU Campus are being
considered by various agencies. (Exhibit B‐1, p. 21)
There is no specific plan in place at this time for the Combined Solution although its
implementation could be as early as 2012. The Company confirms this would eliminate the need
for the stand‐alone NUS that is proposed in this Application. (Exhibit B‐3, BCUC 1.11.2)
3.4 Project Scope
3.4.1 Description of District Energy System
The NUS plans to operate a DES to supply the space heating and domestic hot water to the
required buildings from a central plant. As outlined in Diagram 2, the DES consists of a CEP and a
Distribution System connected to buildings within the development. The CEP, which produces the
![Page 298: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/298.jpg)
13
energy for domestic hot water and space heat for the UniverCity development, will be built in two
steps. The first step is a temporary CEP, fuelled by natural gas which will be followed in 2016 with
a permanent CEP fuelled by an alternative energy source.
DIAGRAM 2
DESCRIPTION OF DISTRICT ENERGY SYSTEM
Source: Derived from Exhibit B‐1
CMUS is investigating Biomass as the fuel source for the permanent CEP, but indicates that it may
consider other fuel sources. The permanent CEP will be situated in a different location from the
temporary CEP. (Exhibit B‐4, BCUC 2.40.2; Exhibit B‐3, BCUC 1.37.1)
Energy from the CEP will be delivered to the residential units by the Distribution System, which will
have the following three components:
![Page 299: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/299.jpg)
14
1. Main Trunk Distribution Pipes
2. Branch Connections; and
3. Energy Transfer Stations (ETS)
(Exhibit B‐1, p. 36)
3.4.2 Production Facilities
The Production Facilities generate the thermal energy for consumption by the residential units.
This section describes these facilities, how they are fuelled and the disposal of waste from the
combustion of biomass.
Initially, the Production Facility will consist of a temporary CEP, which, according to CMUS, will be
constructed in the fall of 2011 with a capacity of 1.9 MW. The temporary CEP will be able to meet
forecast loads up to 2013. At that time, additional boilers will increase the capacity up to 4.4 MW
which will be sufficient to meet forecast loads up to 2016, after which the permanent CEP will be in
place. (Exhibit B‐1, pp. 3, 37, 48)
CMUS states that the boilers and variable speed pumps from the temporary CEP may be moved to
the Biomass plant to provide peaking and backup power. All other items, including engineering,
electrical and mechanical installations will not be reusable, although the building enclosure may
have some salvage value. (Exhibit B‐4, BCUC 2.19.3)
The proposed permanent CEP will be located on property south of the intersection of Tower Road
and South Science Road. The site is currently owned by SFU and is zoned for institutional use. The
BC Hydro Right‐of‐Way (ROW) is close to the proposed location as is the Telus ROW. Detailed
discussions with BC Hydro and Telus concerning the ROWs were not completed at the time of the
Application, but CMUS attests that it will work in close cooperation with SFU Trust on the ROW
requirements. (Exhibit B‐4, BCUC 2.40.1)
![Page 300: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/300.jpg)
15
CMUS reports the proposed location of the permanent CEP is in a forested area with water stream
crossings. CMUS notes that no environmental assessment has yet been conducted, although one
will be completed before the detailed design of the permanent CEP commences. Furthermore,
CMUS states that noise, air emissions, traffic impacts, and geotechnical assessments will not be
completed until later in the design and engineering phase of the permanent CEP. (Exhibit B‐1,
pp. 46‐47) A truck access route has not been determined at this time. (Exhibit B‐4, BCUC 2.39.1)
CMUS has not provided specific details about the technology of the Biomass plant. The Company
states that it is proposing a flexible approach to developing the NUS in order to accommodate
changes in technology and allow decisions to be made when they are required to ensure the most
appropriate technology is selected. (Exhibit B‐3, BCUC 1.36.6) It further states that the technical
solution for the NUS is flexible enough to incorporate the data centre, should it be developed.
(Exhibit B‐3, BCUC 1.7.2.2)
Also worthy of note is that CMUS recognizes the uncertainty related to evolving technologies and
solutions and suggests an approach that would allow it to continue to explore and evaluate the
best biomass solutions. (Exhibit B‐4, BCUC 2.33.1)
Biomass Fuel Supply
To fuel the permanent CEP, CMUS is principally targeting woody biomass material from clean
sources such as forestry residues and also municipal or urban generated woody residues or clean
construction and demolition waste. CMUS estimates the amount of biomass (woody residue)
required to meet the annual energy requirement at up to 8,000 “green” tonnes per year
(approximately 4,000 “bone‐dry” tonnes). CMUS states that it will require an estimated 11
deliveries per five day work‐week in order to meet peak heating demand over a seven day period.
(Exhibit B‐1, p. 39)
![Page 301: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/301.jpg)
16
CMUS has identified a number of risks associated with the fuel for the biomass systems. Included
among these are variances in feedstock consistency, the impact of foreign substances and
oversized feedstock as well as maintenance considerations. It claims that while these issues add
additional risk to the operation of biomass system, they can be managed with careful design, good
practice and operational experience. (Exhibit B‐4, BCUC 2.11.1)
CMUS submits there are suppliers in the Vancouver area that collect, process and sell Biomass for
boiler systems. (Exhibit B‐1, p. 39) Included among these are the City of Burnaby, Urban Wood
Waste Recyclers and several tree services companies. The Company states that it used preliminary
discussions with potential fuel suppliers as a means of establishing the forecast price of $30/tonne
as well as the availability of fuel. (Exhibit B‐1, pp. 22‐23) In response to numerous Commission
staff information requests with respect to pricing and supply, CMUS submits that it will be
undertaking a wood waste supply study in 2011 and continues by stating “we will continue to be in
contact with potential wood suppliers to keep current on the availability of potential wood waste
supply should a decision be made to proceed with a biomass solution”. (Exhibit B‐3, BCUC 1.12.9)
While currently unable to estimate the amount of feedstock in the region, the Company believes it
to be substantial. (Exhibit B‐4, BCUC 2.18.2) With respect to pricing CMUS states that it has a high
confidence level that the price for Biomass will fall between a range from plus 50 percent to minus
50 percent against the base case projections of $30 per ton. (Exhibit B‐3, BCUC 1.15.1)
Waste Ash Disposal
CMUS states the biomass boiler will produce an estimated amount of bottom ash of approximately
220 tonnes per year. CMUS maintains that the testing of the bottom ash will be done regularly to
prevent any potential contaminants to be land filled. (Exhibit B‐3, BCUC 1.37.6) The ash can be
used as a fertilizer if the testing is favourable, however CMUS has not completed any analysis as
the fuel source is not yet determined. (Exhibit B‐3, BCUC 1.37.1) As a result, the opportunities for
potential salvage of the bottom ash remain unknown. If the bottom ash would not be suitable for
beneficial use, it will be sent to the landfill. (Exhibit B‐3, BCUC 1.37.6.3) Bottom ash which contains
leachate levels in excess of the allowable provincial standards must be disposed of in a facility
![Page 302: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/302.jpg)
17
licensed to receive this material such as the facility located in Princeton, BC. (Exhibit B‐4,
BCUC IR 2.37.3)
3.4.3 Thermal Distribution System and Energy Transfer Stations
The Thermal Distribution System (TDS) consists of all of the pumps, piping and ducting required to
transfer the thermal energy from the Production Facility to the Energy Transfer Station (ETS).
The ETS are located in the residential buildings at the point of transfer between the Distribution
System and the building’s internal heating system. The key components of the ETS are:
• Shut off valves
• Pipes between the shut off valves and the heat exchangers used to provide heat
• Controls to regulate the flow of heat
• Energy meters
• Separate heat exchangers for space heating and domestic hot water
CMUS proposes a phased approach for both the TDS and the ETS implementation to match the
planned development schedule of the residential units. (Exhibit, B‐1, pp. 40‐50)
3.5 Implementation Schedule
The implementation schedule for the NUS is driven by the development schedule set by SFU Trust.
CMUS has provided a phased schedule covering a period of 10 years, through completion of build‐
out.
![Page 303: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/303.jpg)
18
Development Schedule
Milestone Date
DES required for the first of the Phase 3 buildings. DES consists of temporary
NG facility with one boiler.
2011
2011
Additional Boiler required for temporary CEP 2013
Biomass Plant (1 Boiler) 2016
Biomass Plant (additional boiler) 2018
Completion of Phase 4 build out 2019
(Source: Exhibit B‐4, BCUC 2.5.2)
![Page 304: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/304.jpg)
19
4.0 PROJECT COSTS AND RATE STRUCTURE
4.1 Capital Costs
CMUS states that it completed a feasibility assessment of the project and provided a capital cost
estimate for the NUS (Exhibit B‐1, page 20 and 48), indicating that the total capital costs for the
temporary and permanent plant is forecast to be $12.215 million over a period of 9 years.
Table 7 – Capital Costs Summary
(Source: Exhibit B‐1, page 20)
Included in the temporary plant costs of the initial year (2011) are solar thermal panels estimated
at $110,000 and the project development cost of $90,000.
CMUS has applied a 5 percent optimization/reduction to both the Heating Plant capital and
Distribution Piping System capital estimates while a 25 percent optimization/reduction is applied to
the Energy Transfer Station capital estimate. The optimization estimates are intended to reflect
the current construction market conditions as compared to those in previous years which were
considered as a baseline for development of the infrastructure cost. CMUS claims that the capital
cost estimate for the total Project has a P90 probability confidence level meaning that the total
capital cost, 9 times out of 10, will be the within the estimated price. Given the CMUS’ knowledge
with these types of projects, the accuracy of the capital cost estimate for the CEP, the DPS, and the
ETS has a Class 3 (‐15 percent and +25 percent) level of accuracy. (Exhibit B‐3, BCUC 1.46.2) CMUS
also states that updates to the cost estimates and detailed breakdown of the various cost
components will be provided to BCUC upon completion of the 50 percent design. (Exhibit B‐3,
BCUC 1.46.6)
![Page 305: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/305.jpg)
20
4.2 Capital Contribution and Incentives
Under the terms of the Infrastructure Agreement between Corix and SFU Trust, developers will
make a contribution to the capital costs at the rate of $1.00 per square foot of buildable area on
each development parcel. CMUS indicates that this developer contribution (connection fee) is not
affected by the implementation of only the temporary CEP as the developers need to pay the
connection fees at the time of the lease closing(Exhibit B‐4, BCUC 2.12.1.2).
In addition, CMUS states that this Project is eligible under BC Hydro’s Power Smart Sustainable
Communities Program which supports the implementation of a DES utilizing alternative energy
sources for heating. (Exhibit B‐1, p. 21) This direct financial incentive would reduce CMUS’ funding
requirement and improve the payback for the DES. A Letter of Intent filed by BC Hydro is included
as Appendix B in the Application and Corix and BC Hydro are in the process of developing an
Incentive Agreement. CMUS has included an estimated capital incentive of $1.3 million in 2016
upon the development and implementation of an alternative energy system. (Exhibit B‐1, p. 21)
Although the agreement is not explicitly subject to approval of the entire project by the
Commission, CMUS insists that it does not believe BC Hydro would negotiate an agreement if only
the temporary solution was approved for development. (Exhibit B‐4, BCUC 2.14.1)
CMUS is also seeking other grant opportunities that could provide further financial benefits.
However, details of the potential grants are not yet available. (Exhibit B‐1, p. 21)
4.3 System Operating Costs
CMUS defines operating, maintenance and administrative costs to include costs for NUS employees
salaries, training, office supplies, subcontractors and maintenance and repair services provided by
maintenance personnel. (Exhibit B‐1, p. 22) Since the central energy plant will be built over time
as new residential load is added, CMUS explains that the facility may not require a full‐time
operator until the biomass boilers are installed in 2016.
![Page 306: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/306.jpg)
21
While the temporary CEP is operating on one or two boilers, CMUS is confident that it would be
registered as a “General Supervision” plant meeting the requirements of section 55 of Safety
Standard Act BC Reg. 104/2004. As such, limited off site supervision via remote access and alarm
monitoring will be acceptable. (Exhibit B‐3, BCUC 1.14.1; Exhibit B‐4, BCUC 2.22.1) General
supervision allows for scheduled inspections rather than 24 hour supervision and is a key to a
viable business case for this scale of system. However, CMUS states that the final ruling of this
status is determined solely by the BC Safety Authority and can only be finalized once equipment for
the permanent CEP is selected. (Exhibit B‐1, p. 44) CMUS estimates that the initial operations and
maintenance cost of the temporary boiler plant will be subcontracted at a cost of $30,000 per year,
which includes basic emergency coverage and two site visits per week. (Exhibit B‐1, p. 22)
Insurance costs are estimated at $4,000 per year while office and administration costs are
budgeted at $50,000 per year. These include legal services, accounting, tax services, auditing,
human resources, and regulatory costs.
CMUS states that operating costs will increase in 2017 after implementation of the biomass plant.
The bulk of the operating costs will be related to the full‐time operator at $200,000 per year plus
2 percent annual escalation. A breakdown of the system operating costs is detailed in Table 9 of
the Application:
Table: 9 – Annual O&M Costs
(Source: Exhibit B‐1, p. 22)
![Page 307: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/307.jpg)
22
4.4 Debt and Equity Financing
4.4.1 Capital Structure
CMUS states that it expects to finance 60 percent of the rate base with deemed debt and the
remaining 40 percent with common equity. (Exhibit B‐1, p. 24) CMUS indicates that long‐term
debt will be available through an inter‐company demand loan from CMUS to the NUS under which
it may borrow, repay and re‐borrow funds as required. Because the NUS will be financed using an
intercompany loan, CMUS indicates that there will not be any fees, security requirements or
covenants. (Exhibit B‐3‐1, BCUC 1.17.2)
Corix has borrowing capacity of $150 million through a $100 million revolving credit facility with a
$50 million accordion (Exhibit B‐1, p. 9) although CMUS states that none of the capital structure will
be financed by short term debt. (Exhibit B‐3‐1, BCUC 1.17.3) The Commission Panel notes that
“The (Ontario Energy) Board has determined that short‐term debt should be factored into rate
setting, and that a deemed amount should be included in the capital structures of electricity
distributors. The short‐term debt amount will be fixed at 4 percent of rate base.” (Exhibit A‐2‐1,
p. 9)
CMUS rejects the appropriateness of including a 4 percent deemed short‐term debt for the NUS
capital structure on the basis that “the assets that are being financed are long‐term assets and
should be financed with long‐term debt.” CMUS further adds that the “model currently projects no
working capital in the project since working capital is expected to be small in relation to the rate
base. As such, the short‐term debt requirements for the project are negligible relative to the
overall financing requirement and would have a negligible impact on the overall debt rate for the
project.” (Exhibit B‐4, BCUC 2.26.1)
![Page 308: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/308.jpg)
23
4.4.2 Debt Cost
CMUS indicates that all debt will be financed at the same interest rate. (Exhibit B‐3‐1, BCUC 1.17.3)
CMUS is proposing that the interest rate be equal to the prevailing Benchmark Ten‐Year
Government of Canada bond yield at time of funding plus a credit spread of 300 basis points. This
credit spread is based on the creditworthiness of SFU and the proposed capital structure. CMUS
notes that SFU is rated AA (low) by Dominion Bond Rating Services and Aa2 by Moody and the
credit spread for entities with that credit risk is in the range of 200 basis points. CMUS further
submits that the “NUS warrants [an incremental 100 basis points in] credit spread over SFU
because of the different security supporting the debt and the incremental risk associated with the
project, including, but not limited to, development risk, utility operations risk and customer credit
risk.” Based on the current Benchmark Bond Yield, the proposed interest rate is 6.50 percent.
(Exhibit B‐3‐1, BCUC 1.17.2 and 1.17.3) CMUS is also proposing to fix the debt rate for a ten‐year
period with any adjustments to the debt rate to be reflected in the revenue requirement
applications that will be filed periodically with the Commission. (Exhibit B‐3‐1, BCUC 1.17.4.1)
Worthy of note is that the OEB “Cost of Capital Parameter Updates for 2011 Cost of Service
Applications for Rates Effective January 1, 2011” dated November 15, 2010, indicates a Deemed
Long‐term Debt Rate Forecast that includes an A‐rated Utility Bond Yield Spread September 2010
of 1.539 percent for 30‐year debt. (Exhibit A2‐2)
4.4.3 Return on Equity
CMUS believes that the NUS is a start up company and does not share the advantages of the
benchmark utility. As such, CMUS is requesting a risk premium of 200 basis points above the
benchmark utility (FortisBC Energy Inc.). (Exhibit B‐1, pp. 24‐26) CMUS states that the proposed
risk premium is reasonable in order to compensate for the additional development business risks
faced by the NUS utility as described in Section 4.7.
![Page 309: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/309.jpg)
24
Directive No. 5 in Order C‐1‐08 for Dockside Green Energy (DGE) approved an ROE that is 100 basis
points premium over the benchmark ROE. CMUS argues “that using the 100 basis points premium
granted to DGE in 2007 as a point of comparison is not an appropriate measure of the risks
associated with small utility operations such as NUS” and “that the more appropriate comparison
for determining the relative risk of the NUS is against the larger established utilities regulated by
the Commission”. (Exhibit B‐3‐1, BCUC 1.20.1, 1.20.2)
In addition, CMUS argues that “the agreed ROE (between the utility and SFU Trust) should be given
considerable weight by the Commission”. (Exhibit B‐3‐1, BCUC 1.19.1) BCUC IR No. 2.29.1 notes
that SFU Trust and the NUS customers are different stakeholders in this project and may not share
the same interests with respect to the ROE. When asked to explain to what extent those interests
may be similar or divergent, CMUS explains that since potential customers of housing units would
factor the costs for energy in their purchase decision, it ensures the Trust and the customers are
“aligned in their desire to have affordable energy rates that ensure the long term viability of the
community and of the utility that provides service to that community”. Thus, CMUS believes there
is “a very clear and strong alignment of interests between SFU Trust and the NUS customers.”
(Exhibit B‐4, BCUC 2.29.1)
4.5 Revenue Requirements
CMUS states that the financing cost of the capital investment represents the largest component of
the Cost of Service. Operating costs and fuel costs each represent a significant portion as outlined
in Table 14 (below).
![Page 310: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/310.jpg)
25
(Source: Exhibit B‐1, p. 27)
CMUS also proposes that the non‐controllable costs be flowed‐through in future rates, which
include:
1. changes in commodity costs including biomass, natural gas and electricity;
2. changes in operating costs resulting from changes in regulatory and legal requirements; and
3. any changes in law.
(Exhibit B‐1, p. 46)
4.6 Rate Design
CMUS is proposing a fixed/variable rate structure that recovers 60 percent of forecast revenues
from strata through a fixed monthly charge per square meter and 40 percent through a volume‐
based rate. To support its proposed rate structure, CMUS points to both the utility’s cost structure
and the high level of uncertainty in forecasting energy demand. (Exhibit B‐1, p. 28)
![Page 311: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/311.jpg)
26
CMUS is requesting “a larger portion on the fixed charge in recognition that the majority of the
costs associated with providing the energy are fixed costs and to increase the stability of utility
revenues given the uncertainty of energy use with new developments.” This is in recognition that
“a larger portion of the customer charge assigned to the variable portion of the customer rate will
encourage more energy conservation.” (Exhibit B‐3, BCUC 1.27.3) CMUS submits that “forecast
risks can be partially mitigated through higher fixed charges.” (Exhibit B‐4, BCUC 2.34.3)
CMUS proposes to bill each strata based on the overall buildable area of the strata’s building(s) and
the consumption as metered within each building. CMUS will not be responsible to allocate energy
costs at the individual suite level within each strata. (Exhibit B‐1, p. 28)
4.7 Project Risk
CMUS describes the business risks inherent in this project to include:
• Real estate development risk ‐ due to the volatility of supply and demand for residential housing in Greater Vancouver;
• Developer/customer connection risk ‐ connection by developers is not mandatory and therefore the NUS does not have exclusive rights to the sale of energy within its territory;
• Small company size risk ‐ due to illiquidity of shares and limited geographic and customer base;
• System performance risk ‐ related to new technology, weather, forecast error and other variables which are unknown at the time of planning and developing the system;
• Construction cost risk;
• Fuel supply and fuel cost risk;
• Operating cost risk; and
• Public acceptance risk.
![Page 312: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/312.jpg)
27
CMUS discusses several mitigating factors for each identified risk and also states that the equity‐to‐
debt ratio along with the proposed ROE discussed in Section 4.4 above are designed to provide the
utility owner a fair return on investment in consideration of all these risk factors. (Exhibit B‐1,
pp. 24, 44‐46)
4.8 Proposed Levelized Rate
CMUS proposes to implement a levelized rate structure in order to reduce the cost to customers in
the early stages of the project and to fairly distribute the costs to all customers over a 20‐year
period. Under these terms, the utility would agree to under‐recover its cost of service during the
early stages of development, record these amounts in a deferral account, and recover the value of
the deferral account by the end of the 20‐year period. (Exhibit B‐1, pp. 27‐28).
Under this proposal, the levelized rate over the entire 20‐year period is estimated to be
$159.76/MWh (before escalation) in accordance with the Application. CMUS subsequently
adjusted this rate to $155.84/MWh (Exhibit B‐4, BCUC 2.35.4) and confirms it is seeking approval
for this rate. CMUS expects that the proposed levelized rate would be subject to change as the
factors impacting the financial assumptions become known. (Exhibit B‐3‐1, BCUC 1.25.1)
![Page 313: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/313.jpg)
28
5.0 KEY ISSUES
5.1 Introduction
Having laid out the project description, the justification and the estimated costs, the financing, the
risks, the revenue requirements and proposed rate structure for the CMUS UniverCity Project, we
will now explore the issues related to the Application. We will start by examining the Project in
terms of the adequacy of consultation and then address issues related to alignment with the Clean
Energy Act, Biomass fuel cost and availability, load analysis and energy forecast. Additionally, our
examination will include a review of the impact of our decision on potential agreements with BC
Hydro and SFU Trust and the risk of stranded assets.
Finally, the Commission Panel will discuss whether the project description and project cost
estimates are sufficiently robust to justify moving forward with the Project before considering in
section 6.1 the matter of whether approval is in the public interest. We believe that the
examination of these issues will support the Panel’s position that in spite of being positively
disposed to the Application, there is insufficient evidence on the record to support approval for the
Project in its entirety at this time.
5.2 Adequacy of Public Consultation
CMUS states that its public consultation process was designed to ensure interested individuals
from the surrounding communities were notified and provided the opportunity to provide input
into the decisions of the NUS as the Project has developed. (Exhibit B‐4, BCUC 2.1.1) CMUS reports
that two open house sessions were held over the period of December 2008 to March 2009 and
advertised in local newspapers with invitations for the first event sent to residents and businesses
within a four kilometre radius. The first of these had 16 attendees, almost all of whom were
current UniverCity residents, and was designed to provide the public with an overview of the
project and information about the NUS and its benefits. The second, with 9 attendees (again
primarily UniverCity residents), was focused on results of a screening analysis of a number of
![Page 314: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/314.jpg)
29
thermal energy technology concepts and a variety of energy sources which included Biomass. A
third Open House was planned during the CPCN Application process to present information related
to the next steps of the NUS development and future oversight of its operation by the Commission.
To date this has not taken place. (Exhibit B‐1, pp. 34‐35)
CMUS reports that the feedback from members of the community attending the open houses was
very positive and individuals were strongly interested and expressed support for a DES with
renewable technology. It further reports that there were no concerns raised with respect to the
technologies being considered or the proximity of the central energy plant to the residential
community. The only concern which arose related to the number of trucks which may be required
to move the Biomass to the CEP. CMUS notes these concerns were reduced when CMUS and SFU
Community Trust, in presenting results of a preliminary fuel analysis, identified that two trucks a
day would be sufficient to supply fuel to run the facility. (Exhibit B‐4, BCUC 2.1.3)
Commission Determination
The Commission Panel finds that CMUS has taken steps to ensure that the public was adequately
consulted with regard to the Project. However, in spite of the steps taken, the open houses were
sparsely attended and that attendance was primarily limited to an audience of existing Phase 1 and
2 UniverCity development residents. As a result, the consultation efforts can best be described as
narrow in scope as there was little participation from the surrounding community. Nonetheless,
the Panel acknowledges that CMUS has made reasonable attempts to notify the public of planned
open houses. Accordingly, the Commission Panel has determined that the public consultation
undertaken by CMUS to date has been satisfactory. Further, the Panel directs CMUS to schedule
the planned third open house once it has determined more clearly the form and technology to be
employed by the NUS.
![Page 315: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/315.jpg)
30
5.3 Alignment with Clean Energy Act and Provincial Government Policy
Section 46(3.1) of the UCA requires the Commission in deciding to issue a CPCN to consider and be
guided by British Columbia energy objectives, the most recent long‐term resource plan filed by the
utility under section 44.1 of the Act and the extent to which application is consistent with
requirements under sections 6 and 19 of the CEA. A discussion of each of these follows.
5.3.1 Alignment with British Columbia’s Energy Objectives
Section 2 of the CEA sets out British Columbia’s energy objectives (listed in Appendix B). Those
most relevant to this proceeding include (d), (g), (h), (i) and (j).
CMUS notes that the NUS project is in alignment with many of these objectives and within the
Application presents details of the GHG reductions which will result once the Biomass plant is
implemented. (Exhibit B‐1, p. 52)
The Commission Panel is in agreement with CMUS and notes that the project is in alignment with
many of the most relevant objectives listed above. First, the type of technology being proposed by
CMUS for this project is very innovative and is designed to support energy conservation and
efficiency through the use of clean, renewable resources. As a consequence, the NUS, when fully
operational will contribute to reaching BC GHG emission targets. Moreover, by relying on biomass
for fuel the project clearly aligns with objectives (h), (i) and (j) by reducing waste and promoting the
switch from natural gas heating to one with decreased GHG emissions on a community wide basis.
5.3.2 Approved Integrated Resource Plan
CMUS has not yet filed a long‐term resource plan.
![Page 316: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/316.jpg)
31
5.3.3 Requirements under Sections 6 and 19 of the Clean Energy Act
Section 6 of the CEA applies to electric utilities only and is not relevant to this Application.
Section 19 of the CEA applies to BC Hydro and prescribed utilities. CMUS is not one of the
prescribed utilities.
Commission Determination
The Commission Panel finds that the Application is generally consistent with British Columbia’s
energy objectives as outlined in the CEA. The project provides for an interim natural gas based
solution for the development followed by an environmentally friendly Biomass (or similar green
heating alternative) once the development is sufficiently large enough to justify it. Once in place,
the permanent heating plant will result in significant reduction of GHGs and will contribute to the
attainment of BC greenhouse gas emission reduction targets.
However, the Panel would like to point out in making this finding that this alignment is contingent
upon the fuel being Biomass and CMUS being able to source Biomass fuel that produces
significantly less GHG than natural gas. As outlined in the BC Energy Plan (p. 25), the amount of
GHG produced from Biomass is very much dependent upon the source of fuel.
5.4 Availability and Costs of Biomass
Both the cost of Biomass fuel and its availability are important considerations in this Application.
As noted in Section 4.5 of this Decision, fuel costs largely made up of Biomass represent a
significant part of the overall cost of service for the permanent CEP. The Commission Panel has
concerns as to whether CMUS has performed sufficient due diligence at this point to ensure
availability and support the cost projections for Biomass fuel.
![Page 317: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/317.jpg)
32
The position taken by CMUS with respect to the cost and supply of suitable Biomass fuel relies very
strongly upon preliminary discussions the Company has had with potential fuel suppliers rather
than a comprehensive review of potential sources and expected costs both current and future. It is
the intention of the Company to perform a wood waste supply study later in 2011 and keep current
on any changes thereafter. In the interests of creating a higher level of certainty with this
Application, the Panel observes that there would have been a significant benefit in performing the
supply study and completing supply contract negotiations prior to this submission of this CPCN.
This would allow the Applicant to firmly substantiate both supply and price for this key
requirement. However, given the time span before construction and the fact that no firm decision
has been made on a Biomass solution for the permanent CEP (to be discussed further in
Section 5.8), the lack of firm details is understandable. Nonetheless, we remain concerned with the
lack of certainty on this important element of the project and are reluctant to rely on what have
been described as preliminary discussions.
The Commission Panel is also concerned that given the time span between this CPCN and the
timing of construction of the permanent CEP, the potential for variability with respect to both
availability and the resultant price to be paid for suitable Biomass could be significant. CMUS
reports that a similar circumstance occurred with another Corix project, Dockside Green in the
Victoria area. In this instance the economic downturn resulted in the project construction slowing,
reduced loads relative to forecast and a shortage of suitable wood waste. Consequently, the
project is still running on natural gas as it is not yet practical to run a central Biomass facility.
(Exhibit B‐3, BCUC 1.40.1, 1.40.2) The Panel notes that because of the long delay between the
Application and construction it is questionable whether such unforeseen circumstances would not
affect the current project.
Commission Determination
The Commission Panel finds that there has been inadequate rigor applied to date to investigate
and secure sourcing and pricing for suitable fuel for the proposed Biomass permanent CEP. We
understand the circumstances behind CMUS not moving forward at this early date with more firm
![Page 318: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/318.jpg)
33
details. However, because of their importance to future ratepayer costs and choice of alternative
energy system, the Commission Panel remains concerned that this adds to the uncertainty related
to this Application.
5.5 Load Analysis and Energy Forecast
The Panel is concerned that too much remains unknown to accurately estimate customer
requirements and demand for NUS based energy. We further note that CMUS acknowledges that
the demand forecast is subject to a high level of uncertainty and that the volume based revenue
may not fully offset the cost of the service and it could experience a revenue shortfall. (Exhibit B‐1,
p. 28)
One unknown factor is the number of units that will be connected to the NUS, which CMUS has
estimated based on the development schedule for Phase 3 and 4. While presales of the first two
buildings, as reported by CMUS, indicate that initial take‐up is good, there remains uncertainty
about units that are scheduled for construction in the future. CMUS notes that this development
risk affects the utility’s ability to predict energy use from those buildings that attach to the NUS.
(Exhibit B‐4, BCUC 2.31.2, 2.31.4)
In IR 2.31.4, CMUS acknowledges that the development risk is significant in these types of
developments and cites the example of Dockside Green, where development has stalled and the
expected build‐out may take twice as long as initially predicted. However, the Company states that
this risk can be mitigated in part by its phased approach to development. The Panel concurs that
some of the development risk may be mitigated by a phased approach to the development of the
CEP.
As a further unknown factor, the Panel notes that developers may be incented to provide new and
novel alternative heating technologies and energy efficiencies due to the requirement to meet
energy efficiency targets provided by SFU Trust and to enhance the saleability of their units. This
could have the effect of reducing demand for energy from the NUS even further. Adding to this
![Page 319: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/319.jpg)
34
risk, the implementation of any supplementary energy sources at the building level is at the sole
discretion of the developer. Accordingly, there is a high level of uncertainty whether this energy
can be included in the overall NUS system design because the NUS must be designed and built
before CMUS could complete any negotiations with developers. However, CMUS takes the position
that solar thermal would be able to supply less than 10 percent of non‐peaking load. (Exhibit B‐3,
BCUC 1.29.1) We recognize that it is difficult to predict how much, if any, of these enhancements
will be implemented by the developers. However, the demand forecast provided by the CMUS, to
the extent that they do not include any contingency of this nature at all, may be overly optimistic.
Commission Determination
The Commission Panel finds that the energy forecast submitted by CMUS is not sufficiently
credible at this stage to base firm decisions as to the size requirements for the permanent CEP or
the customer rates which result.
While CMUS has identified and described sources of uncertainty with respect to load and energy
forecasts, we find that it has not provided sufficient analysis of the impact of those uncertainties on
rates. The Panel notes that if these uncertainties materialize, they may drive down demand for
energy from the NUS, and consequently there is potential for higher rates than those predicted by
CMUS.
5.6 Consideration of Agreements with SFU Trust and BC Hydro
The importance of financial incentives and related agreements has been raised by CMUS within the
Application. CMUS has stated that anything short of a full approval of permanent CEP in the CPCN
“could impair or frustrate the development of the project, particularly if this limited approval
resulted in the withdrawal of funding.” (Exhibit B‐4, BCUC 2.12.1.1)
CMUS states that the Biomass plant is the core of this project and the planning, design, funding and
public consultation are based on it. CMUS notes that under the terms of the Infrastructure
![Page 320: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/320.jpg)
35
Agreement in place with SFU Trust, developers are required to contribute $1.00 per square foot of
buildable area to the NUS on each development parcel. This, as outlined in Table 8, will offset
$2.223 million in development capital costs. (Exhibit B‐1, p. 21) The Commission Panel
acknowledges that the project is based on the development of an alternative energy plant but
notes that CMUS, in answer to BCUC IR 2.12.1.2, confirms that the connection fees would not be
affected by the natural gas temporary solution as they are paid when the lease closes. Moreover,
the Commission Panel in reviewing the Infrastructure Agreement (submitted confidentially in
Exhibit B‐1, Appendix A) sees nothing which would put this agreement at risk if only the temporary
CEP were approved at this time. Because of this, the Commission Panel is not persuaded that a
granting of a CPCN at this time is a requirement of the agreement with SFU Trust or will affect
funding.
With respect to BC Hydro’s interest in the project, CMUS reports that the agreement in place is not
subject to BCUC’s approval of the entire project. However, as noted earlier, the Company believes
that BC Hydro would not start to negotiate an incentive agreement if only a temporary solution
was approved. As outlined in Section 4.2, the incentive agreement with BC Hydro would only be
payable upon the implementation of an alternative energy system which is not scheduled until
2016. As the Commission Panel understands it, the Parties are currently in the process of
developing an incentive program which may be completed prior to the timing of this Decision.
CMUS has presented no evidence to suggest that an immediate granting of a CPCN for the
permanent CEP will be a term of the agreement. Therefore, the Panel is not persuaded that the
granting of a temporary CEP only will nullify or even put at risk any incentive agreement which may
be in place with BC Hydro.
5.7 Risk of Stranded Assets
The fact that the Application proposes to build a temporary CEP which will be replaced by a
permanent CEP raises a concern with respect to stranded assets. CMUS states that the temporary
CEP will have up to three gas fired boilers which it anticipates moving to the permanent CEP once it
is completed and use for peaking and backup. CMUS further states that a portion of the temporary
![Page 321: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/321.jpg)
36
plant cost will be stranded but this will be offset by the savings which will be realized by deferring
the completion of the permanent plant before there is sufficient load build‐up. (Exhibit B‐1, pp. 37‐
38)
The potential for stranded assets was explored by the Commission in IR 1.36.1 which inquired as to
the anticipated value of the stranded capital related to the temporary plant and details in table
form outlining the breakout of facility assets, expected recovered costs and the remaining stranded
value. CMUS did not provide a response to this query. This was again addressed in BCUC IR 2.19.3
which again asked for similar information. In its response CMUS indicates that “all costs associated
with the equipment ($104,000) will be used in the permanent plant.” It is understood that this
represents boilers and speed pumps. CMUS further notes that all other costs such as engineering,
electrical and mechanical installation would be stranded costs. CMUS did not provide details as to
the residual value of the assets, nor any expected recovery costs in table form as requested.
Further to this the Commission in IR 2.19.4 inquired as to whether CMUS had considered selling
some of the stranded assets as a means of reducing the burden on the ratepayer. CMUS
responded by stating that it estimates that 40 percent of the $309,000 estimated cost of the
temporary plant related to boilers, controls, metering equipment as well as the container housing
the plant would have salvage value but did not indicate what that value would be. CMUS
continued by stating that the boilers could be used as back‐up capacity for the permanent CEP.
Commission Determination
The fact that CMUS has not provided complete information with respect to BCUC IRs indicates to
the Commission Panel that the Company has made no firm decision as to the disposition of assets
related to the temporary CEP at this time. It appears, based on the information provided, that the
use of the boilers as backup in the permanent CEP is a possibility but not a certainty. This lack of
certainty is underlined in the CMUS answer to BCUC IR 2.19.4 which states that it had considered
the possibility of selling assets but “[t}he boilers may also be used as back‐up capacity in the
permanent biomass plant” (emphasis added).
![Page 322: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/322.jpg)
37
The Commission Panel notes that the cost of the temporary CEP as outlined in Table 24 of the
Application is $637,000. Based on the information provided, the Commission Panel is unclear as to
how much of this amount will result in stranded assets once a permanent CEP is constructed and
what impact this may have on future rates. It is this lack of certainty and lack of specific detail
which cannot be reconciled that raises concerns with the Panel. Accordingly, the Commission
Panel finds that at this point the amount of rigor CMUS has put into analysis of the potential for
stranded assets related to the temporary CEP has been inadequate.
5.8 Adequacy of Project Description
A key element in a review of a CPCN application is the level of detail provided by the applicant and
the level of certainty which can be ascribed to the project components. The Commission Panel has
concerns as to whether this requirement has been adequately satisfied with this Application.
As outlined in Section 3.0, the CMUS Application contemplates what is described as a phased in
approach to the DES proposed for the UniverCity Project. This involves the construction of a
temporary CEP to serve the initial load and a permanent CEP projected to be constructed by 2016
once the customer load has reached sufficient volume. While CMUS has been very specific with
respect to how it will build a temporary CEP, the same cannot be said for the permanent CEP
proposed to be constructed in the future. CMUS has repeatedly declined to commit to a firm
solution for this installation throughout the evidentiary record. The position taken by the Company
is that a firm decision is not required until a date closer to actual construction. However, from the
evidence presented it is clear that a number of different options have and are still being
considered.
CMUS, in its Application, notes that both Biomass and the potential for Data Centre Heat Pumps
were considered for further evaluation. However, because of uncertainty with whether the Data
Centre would proceed, only the Biomass solution was recommended for detailed technical and cost
analysis. In spite of this, CMUS states that because of the phased approach to the NUS and the fact
that the alternate technology comes later there would be an opportunity to re‐evaluate the
![Page 323: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/323.jpg)
38
potential of using waste heat recovery from the Data Centre if it were constructed prior to
implementation of this alternative energy permanent solution. (Exhibit B‐1, pp. 19‐20) In response
to BCUC 1.7.1 the Company reports it continues to work closely with SFU and holds this open as a
possible option if and when a decision is made regarding the Data Centre. Further, in response to
BCUC 1.7.3, CMUS asserts that if it is developed and proves viable it “would implement this
solution and adjust customer rates accordingly.” Additionally, CMUS has been clear that it does
not intend to file a new CPCN in the event the Data Centre were to go forward but would file
“updates to the CPCN at the points in time where decisions are required on selecting one or more
of the alternative energy systems to develop”. (Exhibit B‐2, FortisBC 1.1.1)
In addition to the Data Centre option CMUS has also outlined the potential for a Combined Solution
involving Corix, SFU and SFU Trust which would provide thermal energy to both UniverCity
residents and the SFU campus utilizing a larger Biomass based solution. There has been no firm
resolution on this proposal but Corix and SFU Campus have applied for funding for this solution to
various agencies and the applications are currently under review. If this combined CEP were to
move ahead, CMUS reports there would be less capital deployed than if two separate solutions
were pursued and it would result in higher energy efficiency and cost savings due to operations and
fuel supply logistical synergies. When asked in BCUC 1.11.1 why it did not wait and submit a CPCN
for the more desirable Combined Solution, CMUS responded that a ruling by the Commission was
required to begin construction of the temporary CEP and a final decision on the combined solution
would not likely be made prior to the required start date. (Exhibit B‐1, pp. 21, 33)
CMUS states that a decision on the final Biomass technology will come from an evaluation of the
options available at the time the plant is being developed and notes that the permanent energy
centre concept is flexible as it allows other types of supply models (e.g. waste‐heat recovery, fuel
cells heat pumps etc.) to be easily implemented if they become feasible in the future (Exhibit B‐1,
pp. 37‐38). Further, when questioned as to whether the Biomass plant decision is firm, CMUS
states that at this time no decision has been made to even proceed with a Biomass plant solution
(Exhibit B‐3, BCUC 1.36.2). In support of this, CMUS argues that ratepayers will benefit from not
![Page 324: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/324.jpg)
39
locking in on a permanent Biomass solution at this time as it leaves the Company the potential to
adopt an optimal solution closer to the time of implementation (CMUS Final Submission, p. 7).
Given the statements CMUS has made regarding the development of a permanent CEP it is clear
there is a great deal of uncertainty surrounding the future energy source technology, the timing of
such a facility, its related costs and impact on ratepayers. As a result, it is difficult to determine
with any confidence the permanent solution the Commission is being asked to approve. In this
vein, FortisBC Energy questioned CMUS with respect to whether projects that “evolve over time” fit
into the existing CPCN Guidelines. CMUS in response acknowledged that such projects may not be
well served by the CPCN process as the CPCN Guidelines are designed to review discrete projects
which are well defined in terms of costs and timelines (Exhibit B‐2, FortisBC 1.1.2).
Commission Determination
The Commission Panel is satisfied that the temporary CEP, the ETS and distribution piping as
outlined in the Application have been laid out in sufficient detail to meet CPCN Guidelines. This
temporary solution, which will serve the NUS until 2016, relies on proven technology which will be
installed over a reasonably tight timeframe thereby reducing the potential for unforeseen costs or
technical challenges. In addition, because the three boilers and related equipment proposed will
be installed in phases, the risk associated with overbuilding if sales of the housing project fail to live
up to expectations is minimized.
However, the Panel is not persuaded that the detail in support of the permanent CEP has been
sufficient to satisfy CPCN Guidelines or provide sufficient clarity as to what is being approved. Of
greatest concern is the fact that CMUS has yet to make a firm commitment to the technology it will
employ or the shape or form of the final solution for the CEP. Within the evidentiary record the
Company has outlined several potential solutions in addition to the proposed Biomass solution.
One of these involved a new Data Centre at SFU while the other was a joint solution with SFU and
SFU Trust for a larger Biomass plant which would serve the needs of both the SFU campus and
phases 3 and 4 of the UniverCity development. Neither of these is far enough along to determine
![Page 325: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/325.jpg)
40
with any degree of certainty that either will proceed. However, neither can be realistically
discounted because much might occur in the five year period before a permanent solution is
required.
CMUS has provided some detail with regard to a potential Biomass based solution but
acknowledges that in addition to there being no certainty that the eventual solution employed will
be Biomass, the actual technology for a Biomass solution if employed is also unknown. Given the
length of time before construction of a permanent CEP, the Commission Panel understands that
prudence would dictate holding back on a decision until such time as the uncertainties are cleared
up and the time to completion is such that analysis and recommendations are based on up to date
technology and the most recent information. However, this does not mean that that approval
should be granted for this CPCN in the absence of a persuasive case and related description which
can be relied upon. While the Commission Panel is favourably disposed to the direction that CMUS
is moving with this Application, the lack of firm details is very concerning. Accordingly, the Panel
finds that the level of firm detail and conciseness of the project description for the permanent
CEP at this time is inadequate and fails to meet the CPCN requirements.
5.9 Adequacy of Project Cost Estimates
The Commission Panel has concern with respect to the adequacy of project cost estimates. CMUS
states that the total capital costs for both the temporary and permanent plant infrastructure to be
$12.215 million over the build‐out period of 2011 to 2019. As previously stated in Section 4.1 of
this Decision, CMUS has confidence that the total capital cost, 9 times out of 10, will be within the
estimated cost.
CMUS included a 15 percent contingency for the permanent CEP due to the higher uncertainty with
the cost of the biomass technology that would be ultimately selected as well as to account for any
unknown temporary and permanent site conditions and site preparation requirements.
(Exhibit B‐3, BCUC 1.45.2) The overall contingency of 10 percent was used for DPS and ETS. This
was assumed at the time of the cost analysis process to be a prudent allowance for any potential
![Page 326: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/326.jpg)
41
material and construction costs as well as changes in design. (Exhibit B‐3, BCUC 1.45.1)
Additionally, a capital cost escalation of 2 percent per year is assumed throughout the build‐out
period. (Exhibit B‐1, p. 50)
CMUS applied an optimization/reduction to the capital costs estimates to reflect current
construction market conditions as compared to the market conditions in previous years during the
“hot” construction market when demand and the prices were significantly higher. (Exhibit B‐3,
BCUC 1.44.1)
Commission Determination
The Commission Panel accepts CMUS’ estimate of a P90 probability confidence level and a Class 3
level of accuracy as adequate in relation to the temporary energy center, given that the timing
for construction is within the next 2 years. The use of a 2 percent escalation rate and 10 percent
contingency during the build‐out period is also acceptable. However, the Panel does not accept
that the same level of cost accuracy may be achieved for the permanent CEP since the technology
and timing of this portion of the project cannot be finalized at this time.
While the Commission Panel generally accepts CMUS’ reasoning that a reduction in capital costs
from previous studies may be appropriate in the near future, there is no reassurance that this will
continue into the long term. Furthermore, if the permanent CEP is not constructed in the forecast
project timeframe, there could be less certainty with forecasted construction costs due to
prevailing market conditions at that time and the future costs of the alternative technology that
will be selected.
![Page 327: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/327.jpg)
42
6.0 COMMISSION DECISION AND DETERMINATIONS
6.1 Commission Decision
The Commission Panel has determined that pursuant to Section 46(3) of the UCA there is
sufficient evidence to support partial acceptance of this CPCN Application. Therefore, the Panel
grants a CPCN for the natural gas fuelled temporary CEP and related Thermal Distribution System
and Energy Transfer Stations to meet expected demand to 2016 as outlined in the Application.
The Commission Panel does not approve construction of the permanent CEP at this time and
suspends further consideration of this matter until CMUS is able to adequately meet the
requirements outlined in this Decision.
The Commission Panel finds that an evaluation and decision on this CPCN rests on determining
whether the proposed project is required for the public convenience and necessity and properly
conserves the public interest. As outlined in Section 2.2, a public interest review must consider
three different group perspectives. These include the surrounding community, the general public
and future Phase 3 and 4 ratepayers. Issues related to the surrounding communities have been
dealt with in the discussion of adequacy of consultation (Section 5.2). In addition, the interests of
the general public are captured by the Panel’s acknowledgement that the project is in alignment
with the Clean Energy Act and Provincial Government Policy (Section 4.2).
CMUS points out that the Commission is guided by the “green energy objectives” in the 2007
BC Energy Plan and the Clean Energy Act and the NUS as an alternative energy district energy
system aligns well with these objectives and serves the public interest as identified in both. In
summation CMUS states that the “Commission should take into account the important public
interest that the NUS serves and exercise its discretion to adapt the regulatory approvals to reflect
the special circumstances of this project”. (CMUS Final Argument, p. 4)
![Page 328: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/328.jpg)
43
As noted previously, CMUS states the objective of the Trust is to provide thermal energy cost
competitively and enhance the environmental performance of the community. This would align
with SFU’s commitment to becoming a carbon neutral institution as required by Bill 44 (Exhibit B‐1,
p. 14). Further, the Company states that SFU Trust has a stewardship role with respect to the lands
being developed and has a long term commitment to the well‐being of the community.
Accordingly, it argues that SFU Trust has a public interest mandate and a desire to both engage and
understand local community interest and the general public throughout the project’s life. In
consideration of this, CMUS further argues that the Commission should give considerable weight to
the support of the project from SFU and SFU Trust as well as what it describes as overwhelmingly
positive feedback the project has received. (CMUS Final Argument, pp. 4‐5)
The Commission Panel does not take issue with many of the submissions of CMUS with respect to
consideration of the public interest. The Panel has previously acknowledged in Section 5.3 that the
proposed NUS aligns well with both the British Columbia Energy Objectives and the Clean Energy
Act. While the Panel, given its comments in section 5.2, stops short of describing the public
reaction to the project as “overwhelming positive feedback,” it is acknowledged that the project is
unique and that the SFU Trust has a stewardship role with respect to the development and is
committed to the well‐being of the community.
The concern of the Panel is the lack of certainty with respect to the permanent CEP. This is further
exacerbated by the timing of the development of a permanent CEP which is not scheduled to be
completed until 2016. As is outlined in Section 5.4, 5.8 and 5.9 there are significant concerns with
cost and availability of Biomass, the lack of an adequate project description made worse by the lack
of a firm decision as to what form the permanent CEP will take and what it will cost to both
construct and operate. Moreover, as CMUS concedes in its Application “ [a]s the demand forecast
is subject to a high level of uncertainty, actual operating experience will be required before the
energy demand can be accurately forecasted”. (Exhibit B‐1, p. 28) This statement combined with
the information in Section 5.5 raises considerable concern with respect to the credibility of the load
forecast. Collectively, these uncertainties with respect to the project serve to further support the
view that the financial impact of the NUS on future ratepayers is anything but clear. Given the
![Page 329: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/329.jpg)
44
CMUS position that cost overruns which are prudently incurred should be recoverable from the
ratepayer in response to BCUC IR 2.32.2, the Panel believes that greater certainty with respect to
these costs prior to approval of the complete CPCN is in the public interest.
The Commission Panel accepts there is a necessity for a temporary solution to serve the buildings
going into service in the fall of 2011. While having some reservations with respect to the potential
for stranded assets, we are satisfied that there has been sufficient rigor in preparing the proposal
for the temporary CEP. Accordingly, the Panel believes the temporary CEP to be in the public
interest and approves construction along with the related distribution DPS and ETS.
The Commission Panel in reaching its decision would like to be clear that it is not rejecting the idea
of the proposal for a Biomass based DES to provide thermal energy service to the UniverCity
development but are rejecting the lack of certainty and detail related to it. On the contrary, the
Panel is supportive of the concept. However, we believe that it is simply too premature to give
approval to a largely undefined permanent solution which is not due to start until at least four
years from now.
6.2 Further Determinations
In light of the Commission Determination approving only the temporary CEP and related
Distribution System and Energy Transfer Stations in this Application, the Panel makes further
determinations relating to the financial considerations of Rate Design, Capital Structure, Debt Cost,
Return on Equity, and Levelized Rates. CMUS’ positions on these issues were outlined in
Section 4.0. Finally, we also address the Terms and Conditions of Service. These items are
discussed in detail through the following sections.
![Page 330: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/330.jpg)
45
6.2.1 Rate Design
The Commission Panel agrees with CMUS’ rationale for designing a rate structure that better match
revenue streams with cost characteristics. Therefore, the Commission Panel approves the rate
design proposed by CMUS, which has a 40 percent variable charge and a 60 percent fixed
monthly charge as outlined in the Application, but directs CMUS to recalculate the variable and
fixed components of the rate, using the 20‐year levelized rate as directed in section 6.2.5.
The Commission Panel also notes that the temporary CEP has a maximum capacity of 4.4 MW that
is less than the 5.7 MW capacity of the permanent CEP. In fact, the temporary CEP is not meant to
service the same total square‐meter area and respond to the same energy demand as the
permanent CEP. Therefore, for the calculation of the fixed component, the Commission Panel
further directs CMUS to use the forecast energy demand and total area in square meters that the
4.4‐MW‐capacity temporary CEP will be able to service.
6.2.2 Capital Structure
The Commission Panel approves CMUS’ proposal to finance 60 percent of the rate base with
deemed debt and the remaining 40 percent of the rate base with common equity. The
Commission Panel makes no determination at this time on the short‐term component of the total
debt structure; however, the Panel notes that utilities operations usually require short‐term debt
to fund short term obligations and provide an allowance for working capital requirements. In BC,
utilities generally have a short‐term debt portion in their capital structures (e.g., FortisBC Energy
(formerly Terasen Gas) and FortisBC).
6.2.3 Debt Cost
The Commission Panel accepts the proposal that the interest rate will be based on the 10‐Year
Government of Canada benchmark bond yield of 3.5 percent at the time of this Application and
notes that this rate is still reasonable at the time of this Decision.
![Page 331: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/331.jpg)
46
However, in light of many factors, we do not accept that a further credit spread of 300 basis points
is warranted. First, we note that yield curves normally slope upward and thus the credit yield
spread for an entity with an AA (low) credit risk (10 year) should be lower than that for an A‐rated
entity (30 year) because the former has a higher credit rating and shorter maturity than the latter.
However, the 200 basis point credit spread for SFU is higher than the 153.9 basis point credit
spread for Ontario’s A‐rated Utility Bond Yield, which is contradictory. Second, we find that some
risks, such as those related to technology and fuel costs, are being mitigated since the CPCN is only
granted for the temporary CEP and related distribution and energy transfer facilities. This lower
risk in turn justifies a lower credit spread. Third, we reiterate that utilities operations usually
require short‐term debt to fund short term obligations and provide an allowance for working
capital requirements, which would reduce borrowing costs below the long‐term rate.
The Commission Panel nonetheless recognizes that the NUS will still face some risk related due to
the small size of the utility. Thus, we find that a credit spread of 250 basis points above the
10‐year Government of Canada benchmark bond yield of 3.5 percent is reasonable and approve
the resultant blended debt rate of 6 percent. Furthermore, we request that CMUS provide the
Commission with its recommendations for a robust formula delineating what might be described
as the “riskless” rate plus a credit spread reflecting actual risk. This would likely be in conjunction
with a new CPCN application for the permanent CEP.
6.2.4 Return on Equity
The Commission Panel approves a risk premium of 50 basis points over the benchmark ROE. The
Commission will revisit this ROE determination in the event the risk profile of the NUS changes in
the future.
As outlined in Section 4.4.3, CMUS is requesting a risk premium of 200 basis points above the
benchmark utility to develop, construct and operate an alternative energy‐based DES for UniverCity
on Burnaby Mountain. This level of risk premium was agreed upon with the client, SFU Trust, as a
part of the overall negotiation package. While the Commission Panel agrees with CMUS that SFU
![Page 332: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/332.jpg)
47
Trust and the NUS customers may share some common interest with regard to the long‐term
sustainability of the community, it also notes the conflicting interest between SFU Trust as the
master developer and the NUS customers. Therefore, the Panel concludes that the conflicting
nature of their interests is a more significant factor to consider than their shared interests.
Accordingly, the Commission Panel rejects CMUS’s argument that the agreed ROE should be given
considerable weight by the Commission. Furthermore, the Panel finds that no evidence has been
provided in this proceeding to justify the requested risk premium of 200 basis points.
With regard to relevant benchmarks, the Commission Panel holds the view ‐ contrary to CMUS
submissions outlined in Section 4.4.3 ‐ that a comparison between Dockside Green Energy and the
NUS provides a good basis for assessing the additional risk premium requested by CMUS. This is
because both are small utilities with a limited geographic and customer base and subject to similar
risks in the areas of real estate development, construction costs and company size. Thus the Panel
finds that the 100 basis points premium approved by the Commission for DGE offers a good basis
for comparison. As explained further below, the Panel further determines that the NUS will be
subject to lower business risk than DGE.
Specifically, in light of the Commission Panel’s determination to grant a CPCN for the construction
of the temporary CEP and related Thermal Distribution System and Energy Transfer Stations, the
Panel finds there should be no additional premium related to the biomass technology and fuel cost
risks, which CMUS has assessed as “moderate”. The Panel also notes that CMUS has proposed
various strategies to mitigate some of the business risks inherent in the project. For instance, in
contrast to the DGE Biomass plant that was built at the outset, CMUS opted for a phased approach
to capital deployment – through a temporary CEP – to mitigate real estate development risks.
Although CMUS has assessed such development risks as “moderate to high” for both DGE and the
NUS, the Commission Panel believes that the NUS’s phased approach decreases the risk level for
this project as compared to DGE.
![Page 333: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/333.jpg)
48
Another risk mitigating strategy relates to the “high level of uncertainty” surrounding the demand
forecast. Given the Commission Panel’s approval of CMU’s proposed fixed/variable rate design
that recovers 60 percent of forecast revenues through a fixed monthly charge per sq.mt, in contrast
to only 50 percent for DGE, the Panel finds that the NUS’s rate design decreases the risk of utility
revenue shortfalls as compared to DGE.
Furthermore, the Commission Panel understands that the developer/customer connection risk,
which was initially assessed by CMUS as “significant” and given a “high” risk level in contrast to the
“low” risk level for DGE, is likely to be significantly reduced in the future. Indeed, the Panel notes
the CMUS’s report on the Trust’s intention to “amend future development agreements between
the SFU Trust and third party developers to include the requirements that buildings developed on
the lands leased from the SFU Trust and third‐party developers to include the requirements that
buildings developed on the lands leased from Trust will be required to attach to the NUS.”
(Exhibit B‐4, BCUC 2.30.0)
While the Commission Panel recognizes that CMUS will still face some risk related to the small size
of the utility, construction costs and public acceptance, the Panel finds that these risks are
altogether less significant than those faced by DGE and, therefore, warrant a lower premium than
the 100 basis points over the benchmark ROE the Commission approved for DGE in 2007.
Finally, the Commission Panel notes that while the benchmark utility was once referred to as the
“low‐risk” utility, this is no longer the case as determined in the Terasen 2009 ROE Decision, which
simply refers to Terasen as the benchmark utility.1 In the 2009 Decision the allowed ROE was
increased, in part to reflect the increased business risk Terasen is facing.
For all the reasons stated, the Commission Panel approves a risk premium of 50 basis points over
the benchmark ROE.
1 Terasen Utilities ROE and Capital Structure Decision, December 16, 2009
![Page 334: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/334.jpg)
49
6.2.5 Levelized Rates
In accordance with Section 60 in the UCA, the Commission Panel must ensure that rates being
charged to customers are just and reasonable while allowing the utility to earn a fair return.
Commission Panel finds that while it is not uncommon to permit “Greenfield” start‐up utilities to
charge levelized rates, it is imperative that rates being charged to customers fairly represent the
type of service being offered, specifically, natural gas service as approved in Section 6.1 above.
The Commission Panel directs CMUS to recalculate a 20‐year levelized rate, based solely on the
capital costs of the temporary CEP and related distribution system, and adjusted for all the
financial directives provided in Sections 6.2.2 to 6.2.4 above. CMUS shall calculate and provide a
Rate Schedule which incorporates the revised levelized rate to the Commission within 10
business days of this Decision.
This levelized rate will be charged to all customers initially taking service in the fall of 2011 and
may be reviewed from time to time by the Commission.
The Panel recognizes that the under a levelized rate approach, there will be over‐earning in the
latter years that compensate for the under‐earnings in the early years of the project. Approval for
the establishment of a revenue deferral account is granted in order to capture the revenue
requirement variances under the levelized rate approach. The Commission Panel further directs
CMUS to file a report showing the calculations and balance of the revenue deferral account by
December 31 of every year.
6.2.6 Terms and Conditions of Service
The Commission Panel notes that CMUS has failed to provide the Terms and Conditions of Service
in the original Application and even when requested in the first round of information requests.
(Exhibit B‐3, BCUC 1.50.1) CMUS finally produced the document following the second round of
information requests in Exhibit B‐4, BCUC 2.43.1. Due to the timing of CMUS’ filing of the Terms
![Page 335: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/335.jpg)
50
and Conditions, the public was not granted an opportunity to clarify or challenge the evidence. The
Panel believes in the importance of maintaining a transparent process in assessing all information
presented as evidence in all proceedings. As a result, the Commission Panel is unable to make a
determination on the Terms and Conditions of Service at this time. CMUS is directed to submit a
schedule of standard fees and charges reflecting the provision of a natural gas service to the
Commission within 10 business days of this Decision. This submission, along with the Terms and
Conditions of Service will be subject to a further review process by the Commission before
approval is granted.
7.0 COMMISSION PANEL COMMENT
The Province of British Columbia issued a news release on April 21, 2011, announcing its intention
to provide $4.7 million to support the partnership between SFU, SFU Community Trust and CMUS
for a thermal energy system for the SFU campus and UniverCity. This announcement was made
following the close of the evidentiary record. Accordingly, it was not considered in this Decision.
The Panel expects this announcement may result in many of the uncertainties related to this
project to be laid to rest and a firm plan for the future to be developed.
![Page 336: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/336.jpg)
51
8.0 SUMMARY OF DIRECTIVES
This Summary is provided for the convenience of readers. In the event of any difference between the Directions in this Summary and those in the body of the Decision, the wording in the Decision shall prevail.
Directive Page
1. The Commission Panel finds that CMUS has taken steps to ensure that the public was adequately consulted with regard to the Project.
29
2. The Commission Panel has determined that the public consultation undertaken by CMUS to date has been satisfactory. Further, the Panel directs CMUS to schedule the planned third open house once it has determined more clearly the form and technology to be employed by the NUS.
29
3. The Commission Panel finds that the Application is generally consistent with British Columbia’s energy objectives as outlined in the CEA.
31
4. The Commission Panel finds that there has been inadequate rigor applied to date to investigate and secure sourcing and pricing for suitable fuel for the proposed Biomass permanent CEP.
32
5. The Commission Panel finds that the energy forecast submitted by CMUS is not sufficiently credible at this stage to base firm decisions as to the size requirements for the permanent CEP or the customer rates which result.
34
6. The Commission Panel finds that at this point the amount of rigor CMUS has put into analysis of the potential for stranded assets related to the temporary CEP has been inadequate.
37
7. The Panel finds that the level of firm detail and conciseness of the project description for the permanent CEP at this time is inadequate and fails to meet the CPCN requirements.
40
8. The Commission Panel accepts CMUS’ estimate of a P90 probability confidence level and a Class 3 level of accuracy as adequate in relation to the temporary energy center, given that the timing for construction is within the next 2 years. The use of a 2 percent escalation rate and 10 percent contingency during the build‐out period is also acceptable. However, the Panel does not accept that the same level of cost accuracy may be achieved for the permanent CEP since the technology and timing of this portion of the project cannot be finalized at this time.
41
![Page 337: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/337.jpg)
52
9. The Commission Panel has determined that pursuant to Section 46(3) of the UCA there is sufficient evidence to support partial acceptance of this CPCN Application. Therefore, the Panel grants a CPCN for the natural gas fuelled temporary CEP and related Thermal Distribution System and Energy Transfer Stations to meet expected demand to 2016 as outlined in the Application. The Commission Panel does not approve construction of the permanent CEP at this time and suspends further consideration of this matter until CMUS is able to adequately meet the requirements outlined in this Decision.
42
10. The Commission Panel approves the rate design proposed by CMUS, which has a 40 percent variable charge and a 60 percent fixed monthly charge as outlined in the Application, but directs CMUS to recalculate the variable and fixed components of the rate, using the 20‐year levelized rate as directed in section 6.2.5.
45
11. For the calculation of the fixed component, the Commission Panel further directs CMUS to use the forecast energy demand and total area in square meters that the 4.4‐MW‐capacity temporary CEP will be able to service.
45
12. The Commission Panel approves CMUS’ proposal to finance 60 percent of the rate base with deemed debt and the remaining 40 percent of the rate base with common equity.
45
13. The Commission Panel accepts the proposal that the interest rate will be based on the 10‐Year Government of Canada benchmark bond yield of 3.5 percent at the time of this Application and notes that this rate is still reasonable at the time of this Decision.
45
14. Thus, we find that a credit spread of 250 basis points above the 10‐year Government of Canada benchmark bond yield of 3.5 percent is reasonable and approve the resultant blended debt rate of 6 percent. Furthermore, we request that CMUS provide the Commission with its recommendations for a robust formula delineating what might be described as the “riskless” rate plus a credit spread reflecting actual risk.
46
15. the Commission Panel approves a risk premium of 50 basis points over the benchmark ROE.
46
16. The Commission Panel directs CMUS to recalculate a 20‐year levelized rate, based solely on the capital costs of the temporary CEP and related distribution system, and adjusted for all the financial directives provided in Sections 6.2.2 to 6.2.4 above. CMUS shall calculate and provide a Rate Schedule which incorporates the revised levelized rate to the Commission within 10 business days of this Decision.
This levelized rate will be charged to all customers initially taking service in the fall of 2011 and may be reviewed from time to time by the Commission.
47
![Page 338: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/338.jpg)
53
17. Approval for the establishment of a revenue deferral account is granted in order to
capture the revenue requirement variances under the levelized rate approach. The Commission Panel further directs CMUS to file a report showing the calculations and balance of the revenue deferral account by December 31 of every year.
47
18. The Commission Panel is unable to make a determination on the Terms and Conditions of Service at this time. CMUS is directed to submit a schedule of standard fees and charges reflecting the provision of a natural gas service to the Commission within 10 business days of this Decision. This submission, along with the Terms and Conditions of Service will be subject to a further review process by the Commission before approval is granted.
50
![Page 339: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/339.jpg)
54
DATED at the City of Vancouver, in the Province of British Columbia, this 6th day of May 2011. _____Original signed by:_________________
D. A. (DENNIS) COTE COMMISSIONER _____Original signed by:_________________
L.A. (LIISA) O’HARA COMMISSIONER _____Original signed by:_________________
DAVE MORTON COMMISSIONER
![Page 340: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/340.jpg)
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, BC V6Z 2N3 CANADA web site: http://www.bcuc.com
BRIT I SH COLUMBIA
UTIL IT I ES COMMISS ION ORDER NUMBER C‐7‐11
TELEPHONE: (604) 660‐4700 BC TOLL FREE: 1‐800‐663‐1385 FACSIMILE: (604) 660‐1102
. . . /2
IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
An Application by Corix Multi‐Utility Services Inc. for a Certificate of Public Convenience and Necessity to Construct and Operate a District Energy System for the
UniverCity Neighbourhood Utility Service Project in Burnaby, BC
and
Approval of the proposed Revenue Requirement, Rate Design, Levelized Rates, and Service Agreement
BEFORE: D.A. Cote, Panel Chair/Commissioner L.A. O’Hara, Commissioner May 6, 2011 D. Morton, Commissioner
O R D E R
WHEREAS: A. On November 26, 2010, Corix Multi‐Utility Services Inc. (CMUS) applied to the British Columbia Utilities Commission
(Commission) for a Certificate of Public Convenience and Necessity (CPCN) under sections 45 and 46 of the Utilities Commission Act (Act) for the construction and operation of a district energy system (DES) for the UniverCity Neighbourhood Utility Service (NUS) in Burnaby, BC, and for approval under sections 59, 60 and 61 of the Act for the proposed revenue requirement, rate design, Service Agreements, and levelized rates (the Application);
B. The UniverCity is a sustainable residential community, being developed by Simon Fraser University (SFU) Community Trust, being built adjacent to the main SFU campus. The development is being constructed in 4 phases. Phase 1 and 2 have already been constructed and will not be connected to the proposed DES. The first three buildings of Phase 3 are under development and scheduled for completion in the fall of 2011, which will be served by the proposed NUS. When completed in 2019 the development will total 296,572 square meters;
C. CMUS will be responsible for development and ownership of the NUS, a community‐based utility. The primary
responsibility will be to develop, implement, operate and maintain the DES, which will provide thermal energy to residents of Phase 3 and 4 of the UniverCity developments;
D. CMUS proposes that the DES will be initially served by a temporary Central Energy Plant (CEP) using natural gas boilers
and a distribution system which is expected to serve the needs of the NUS until 2016. A transition to a permanent CEP using an alternative energy fuel source (such as biomass) will replace the temporary Central Energy Plant as the primary source of thermal energy when sufficient load requirements are reached;
![Page 341: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/341.jpg)
2
ORDERS/C‐7‐11_Corix University NUS CPCN Decision
BRIT I SH COLUMBIA
UTIL IT I ES COMMISS ION ORDER NUMBER C‐7‐11
E. By Order G‐193‐10, dated December 10, 2010, the Commission established a written public hearing process and regulatory timetable to review this Application;
F. The Commission has reviewed the Application and has determined that it is in the public interest to grant a partial
approval of this CPCN Application. NOW THEREFORE the Commission orders as follows: 1. Approval for Corix Multi‐Utility Services to construct and operate a natural gas fuelled temporary Central Energy Plant
and related Thermal Distribution System and Energy Transfer Stations as outlined in the Application.
2. Further consideration of the permanent Central Energy Plant is suspended until CMUS is able to meet the requirements outlined in the Decision.
3. The approved temporary Central Energy Plant will operate on the basis of the following terms:
a. A ROE which is 50 basis points over the benchmark ROE;
b. A rate base with 60 percent deemed debt and the remaining 40 percent with common equity;
c. A rate design with a 60 percent fixed monthly charge and a 40 percent variable charge which are to be recalculated using a 20‐year levelized rate, based solely on the capital cost of the temporary Central Energy Plant plus the related distribution system. This is to be adjusted for all financial directives provided in Sections 6.2.2 to 6.2.4 of the Decision.
d. A blended debt rate of 6.0 percent based on the 10‐year Government of Canada benchmark bond yield of 3.5 percent and a credit spread of 250 basis points.
e. The establishment of a revenue deferral account to capture the revenue requirement variances under the levelized rate approach.
4. Corix Multi‐Utility Services must file a report showing the calculation and balance of the revenue deferral account by December 31 of each year.
5. Corix Multi‐Utility Services must submit a schedule of standard fees and charges reflecting the provision of natural gas
service to the Commission within 10 business days of this Decision.
DATED at the City of Vancouver, in the Province of British Columbia, this 6th day of May 2011. BY ORDER Original signed by: D.A. Cote Panel Chair/Commissioner
![Page 342: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/342.jpg)
APPENDIX A Page 1 of 1
REGULATORY TIMETABLE
ACTION DATE (2011)
Commission Information Request No. 1 Thursday, January 6
Intervener Information Request No.1 Thursday, January 13
Intervener/Interested Party Registration Thursday, January 13
Response to Commission and Intervener Information Request No. 1 Thursday, January 27
Commission and Intervener Information Requests No. 2 Thursday, February 10
Response to Commission and Intervener Information Requests No. 2 Thursday, February 24
CMUS Final Submission Thursday, March 10
Intervener Final Submission Thursday, March 17
CMUS Reply Submission Thursday, March 24
This timetable was amended by Order Amended G‐18‐11 dated March 3, 2011 as follows:
ACTION DATE (2011)
CMUS Final Submission Friday, March 4, 2011
Intervener Final Submission Monday, March 7, 2011
CMUS Reply Submission Wednesday, March 9, 2011
![Page 343: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/343.jpg)
APPENDIX B Page 1 of 2
CLEAN ENERGY ACT
British Columbia's energy objectives
2 The following comprise British Columbia's energy objectives:
(a) to achieve electricity self‐sufficiency;
(b) to take demand‐side measures and to conserve energy, including the objective of the
authority reducing its expected increase in demand for electricity by the year 2020 by at
least 66%;
(c) to generate at least 93% of the electricity in British Columbia from clean or renewable
resources and to build the infrastructure necessary to transmit that electricity;
(d) to use and foster the development in British Columbia of innovative technologies that
support energy conservation and efficiency and the use of clean or renewable
resources;
(e) to ensure the authority's ratepayers receive the benefits of the heritage assets and to
ensure the benefits of the heritage contract under the BC Hydro Public Power Legacy
and Heritage Contract Act continue to accrue to the authority's ratepayers;
(f) to ensure the authority's rates remain among the most competitive of rates charged by
public utilities in North America;
(g) to reduce BC greenhouse gas emissions
(i) by 2012 and for each subsequent calendar year to at least 6% less than the level
of those emissions in 2007,
(ii) by 2016 and for each subsequent calendar year to at least 18% less than the
level of those emissions in 2007,
(iii) by 2020 and for each subsequent calendar year to at least 33% less than the
level of those emissions in 2007,
(iv) by 2050 and for each subsequent calendar year to at least 80% less than the
level of those emissions in 2007, and
(v) by such other amounts as determined under the Greenhouse Gas Reduction
Targets Act;
![Page 344: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/344.jpg)
APPENDIX B Page 2 of 2
(h) to encourage the switching from one kind of energy source or use to another that
decreases greenhouse gas emissions in British Columbia;
(i) to encourage communities to reduce greenhouse gas emissions and use energy
efficiently;
(j) to reduce waste by encouraging the use of waste heat, biogas and biomass;
(k) to encourage economic development and the creation and retention of jobs;
(l) to foster the development of first nation and rural communities through the use and
development of clean or renewable resources;
(m) to maximize the value, including the incremental value of the resources being clean or
renewable resources, of British Columbia's generation and transmission assets for the
benefit of British Columbia;
(n) to be a net exporter of electricity from clean or renewable resources with the intention
of benefiting all British Columbians and reducing greenhouse gas emissions in regions in
which British Columbia trades electricity while protecting the interests of persons who
receive or may receive service in British Columbia;
(o) to achieve British Columbia's energy objectives without the use of nuclear power;
(p) to ensure the commission, under the Utilities Commission Act, continues to regulate the
authority with respect to domestic rates but not with respect to expenditures for
export, except as provided by this Act.
![Page 345: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/345.jpg)
APPENDIX C Page 1 of 2
IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Corix Multi Utility Services Inc. Certificate of Public Convenience and Necessity
for the Neighbourhood Utility Service at UniverCity, Burnaby
EXHIBIT LIST
Exhibit No. Description COMMISSION DOCUMENTS A‐1 Letter dated December 6, 2010 ‐ Appointment of Panel
A‐2 Letter and Order G‐193‐10 dated December 10, 2010 ‐ Establishing a Written Hearing Process and Regulatory Timetable
A‐3 Letter dated January 6, 2011 – Information Request No. 1 to Corix
A‐4 Letter dated February 10, 2011 – Order G‐18‐11 and Amended Regulatory Timetable
A‐5 Letter dated February 17, 2011 – Commission Information Request No. 2
A‐6 Letter dated March 3, 2011 – Amended Regulatory Timetable
A2‐1 Letter dated February 17, 2011 – Commission Staff filing Ontario Energy Board ‐ Report of the Board on Cost of Capital and 2nd Generation Incentive Regulation for Ontario's Electricity Distributors
A2‐2 Letter dated February 17, 2011 – Commission Staff filing Ontario Energy Board ‐ Cost of Capital Parameter Updates for 2011 Cost of Service Applications for Rates
A2‐3 Letter dated February 17, 2011 – Commission Staff filing UniverCity on Burnaby Mountain – UniverCity East Neighbourhood Plan Development Guidelines and Requirements
A2‐4 Letter dated February 17, 2011 – Commission Staff filing City of Burnaby – Bylaw No. 12760 a BYLAW to amend Bylaw No. 4742, being Burnaby Zoning Bylaw 1965
![Page 346: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/346.jpg)
APPENDIX C Page 2 of 2
Exhibit No. Description APPLICANT DOCUMENTS CORIX B‐1 CORIX MULTI‐UTILITY SERVICES INC. (CORIX) ‐ Letter dated November 26, 2010 – Application
for a Certificate of Public Convenience and Necessity for the Neighbourhood Utility Service at UniverCity, Burnaby
B‐1‐1 CONFIDENTIAL – Application Appendices A, D, G
B‐1‐2 Letter Dated December 10, 2010 – Errata No. 1 to page 11 of the application
B‐2 Letter Dated January 28, 2011 – Corix Response to Terasen IR No. 1
B‐3 Letter Dated January 28, 2011 – Corix Response to BCUC IR No. 1
B‐3‐1 Letter Dated February 8, 2011 – Corix Additional Responses to BCUC IR 1
B‐3‐2 Letter Dated February 10, 2011 – Corix Additional Evidence
B‐4 Letter Dated February 25, 2011 – Corix Submitting Responses to BCUC IR No. 2
B‐5 Letter Dated March 1, 2011 – Corix Request for filing extension
INTERVENOR DOCUMENTS C1‐1 TERASEN GAS INC., TERASEN GAS (VANCOUVER ISLAND) AND TERASEN GAS (WHISTLER)
COLLECTIVELY TERASEN UTILITIES (TUS) Letter Dated January 5, 2011 ‐ Request for Intervener Status by Dianne Roy
C1‐2 Letter Dated January 13 2011 – TUS Information Request No. 1
![Page 347: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/347.jpg)
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, B.C. V6Z 2N3 CANADA
web site: http://www.bcuc.com
TELEPHONE: (604) 660-4700 BC TOLL FREE: 1-800-663-1385
FACSIMILE: (604) 660-1102
BRITISH COLUMBIA
UTILITIES COMMISSION ORDER NUMBER C-1-08
IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
Application by Dockside Green Energy LLP
for Approval of a Certificate of Public Convenience and Necessity to construct and operate a District Energy System for the Dockside Green Project in Victoria, B.C.
and
Approval of the proposed Revenue Requirement, Rate Design and Levelized Rates
BEFORE: L.F. Kelsey, Panel Chair and Commissioner P.E Vivian, Commissioner April 17, 2008 A.A. Rhodes, Commissioner
O R D E R
WHEREAS: A. By letter dated December 21, 2007, Dockside Green Energy LLP (“DGE”) applied to the Commission for a
Certificate of Public Convenience and Necessity (“CPCN”) to construct and operate a district energy system (“DES”) to provide energy service to the Dockside Green development (“Dockside Green”) currently being built on the Inner Harbour in Victoria, B.C. and for approval of Service Agreements, Terms and Conditions of Service and levelized rates (the “Application”); and
B. Dockside Green is being constructed on fifteen acres of former industrial land adjacent to the Upper
Harbour and downtown Victoria, between the Johnson and Bay Street bridges. The total planned development is approximately 1.4 million square feet of mixed residential, office, retail and industrial space; and
C. Dockside Green is being developed by Dockside Green Limited Partners (“DGLP” or the “developer”),
which is jointly owned by Vancity Capital Corporation (Vancity”) and Windmill West Properties LLP (“Windmill”); and
D. DGE, the proposed utility, was established to serve the Dockside Green community in Victoria harbor and
provide space heating and domestic water service through a DES; and E. DGE is jointly owned by Vancity, Windmill, Corix Utilities Inc. (“Corix”) and Terasen Energy Services
Inc. (“TES”) and has selected Corix and TES to develop the DES; and F. The DES comprises a central heating plant containing a wood-waste gasification system and back-up
natural gas boilers, a distribution system comprised of insulated pipe to deliver energy in the form of heated water to customers, heat exchangers which transfer heat from the distribution system to customer
![Page 348: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/348.jpg)
2
BRITISH COLUMBIA
UTILITIES COMMISSION ORDER NUMBER C-1-08
buildings, and energy meters that measure the energy transferred to customers. DGE will install revenue-grade meters at the building and use these readings to issue bulk energy bills to each strata customer within the development. Each strata will then allocate the total energy costs to residents based on a pro-rata allocation of common and in-suite energy usage; and
G. DGE will be seeking to reduce the cost of serving the Dockside Green customers by serving off-site
properties in close proximity to the Dockside Green development to earn incremental revenues; and H. Dockside Green has secured federal funding to offset some of the capital costs of the DES through the
Technology Early Action Measures (“TEAM”) federal funding program; and I. During the first several years of the build-out period, it is expected that operating cashflows will be less
than the interest and principal payments on the utility’s debt. In these instances, the developer has agreed to provide funding to make up the shortfall by way of non-interest bearing refundable customer contributions. These contributions are repayable to the developer on a straight-line basis over a six year period beginning in year 15 of the project; and
J. Corix has been contracted by DGE to provide operation and maintenance and administration services under
a ten year agreement called the Energy Services Agreement. The Energy Services Agreement requires DGE and Corix to meet annually for the initial three years of the DES operations to review costs and determine operating budgets for the following year. Beginning in year four of the agreement, DGE and Corix will agree upon a fixed price, subject to the Consumers Price Index and changes in regulatory requirements, for the remaining seven years of the agreement; and
K. At the time of the Application there is a 20-year draft supply agreement between DGE and Three Point
Properties to supply wood-waste at a fixed price of $25 per bone dry tonne (“BDT”) for the first ten years and $30 per BDT escalating with inflation of 3 percent for the remaining ten years; and
L. DGE is proposing a 20-year levelized rate mechanism in order to provide a reasonable rate to strata
customers in the early years of the project with a deemed capital structure of 60 percent debt and 40 percent equity and long-term debt financing at 6.5 percent; and
M. The proposed levelized rates are based on an annualized rate of return over the 20 years equal to the low
risk benchmark utility return plus 100 basis points or 9.62 percent. Should it be necessary for rate changes during the initial ten year period due to changes in forecast revenue requirements, a revised schedule of levelized rates will be filed for approval with the Commission that allows DGE the opportunity to earn its target return over the 20-year period taking into account achieved return on equity from start-up to the current year; and
N. DGE proposes the deferral of depreciation of plant assets for the initial seven years of the operation and
depreciation over 50 years starting in the eighth year of operation; and
![Page 349: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/349.jpg)
3
BRITISH COLUMBIA
UTILITIES COMMISSION ORDER NUMBER C-1-08
O. DGE is proposing a fixed/variable rate structure that recovers 50 percent of forecast revenue through a fixed monthly charge per square meter and 50 percent through a volume based rate; and
P. The levelized rate term is for 20 years commencing January 1, 2009, with a rate structure that is based on a
fixed charge of $2.57 per square metre per annum escalated at 3.0 percent per annum and a variable charge of $14.01 per GJ escalated at 3.0 percent per annum. The gas cost recovery charge is based on the actual cost of natural gas and allocated based on square meters to each strata on a pro rata basis; and
Q. Natural gas usage is not expected to be significant except during planned shut down periods and during
peak periods at full build out. DGE is proposing a separate natural gas recovery charge applied to peak usage periods to recover actual gas costs from strata customers; and
R. There are cost risks associated with forecast customer additions and corresponding energy demand as well
as construction costs. The first risk has been mitigated through the proposed rate structures and service agreements whereby DGLP has entered into a contract for the use and payment to DGE whereby DGLP will pay DGE the monthly fees until such time as a unit is sold. DGE will attempt to mitigate construction cost risk with fixed price contracts; and
S. By Order No. G-8-08 dated January 11, 2008, the Commission established a Written Public Hearing and
Regulatory Timetable; and T. By letter dated January 11, 2008, the Commission issued Information Request No.1 to DGE; and U. By letter dated January 21, 2008 DGE filed a response to Information Request No.1; and V. By e-mail dated January 23, 2008 SunGen Sustainable Developments Inc. filed a request for Intervenor
status; and W. By letter dated February 15, 2008, the Commission issued Information Request No. 2 to DGE; and X. By letter dated March 6, 2008 DGE filed a response to Information Request No.2; and Y. By letter dated March 11, 2008 DGE filed its final submission; and Z. By letter dated March 20, 2008 DGE filed responses to outstanding questions from Information Request
No. 1; and AA. By letter dated March 20, 2008 DGE requested Commission approval for Interim Rates pending a final
Decision; and
![Page 350: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/350.jpg)
4
BRITISH COLUMBIA
UTILITIES COMMISSION ORDER NUMBER C-1-08
BB. By letter dated March 28, 2008 the Commission denied DGE’s request for approval of interim rates prior to the issuance of a CPCN to DGE. The Commission stated that it is unlikely to object to DGE charging for such service and views the arrangements for service prior to granting a CPCN as a private matter between the parties; and
CC. The Commission has reviewed the information and finds that the Application is in the public interest
subject to conditions. NOW THEREFORE pursuant to Sections 45, 46, 59, 60 and 61 of the Utilities Commission Act (the “Act”), the Commission orders as follows: 1. The Commission grants a CPCN to DGE for the construction and operation of a DES to provide hydronic
energy service at Dockside Green as set out in the Application, subject to the following conditions: 1.1 Any extraordinary capital expenditures or operating and maintenance expenses, natural gas and/or
any other fuel commodity costs that are incremental to the costs included in the revenue requirements estimate presented in the Application and are required in order that the thermal energy generation system referred to as the Nexterra Plant fulfills the role described for it in the Application and supporting material, will not be included in DGE rate base and revenue requirements and will not be recovered in DGE customer rates.
1.2 Any extraordinary capital expenditures or operating and maintenance expenses, natural gas and/or
any other fuel commodity costs that are incremental to the costs included in the revenue requirements estimate presented in the Application and are required in order to obtain, process, handle or replace the fuel source for the district energy system, including the cost of gas that is used because wood supply is not available or the cost of wood supply to the extent it exceeds the price set out in the Binding Letter of Intent with Three Point Properties LLP that is Attachment 7.1 in Exhibit B-2, will not be included in the DGE rate base and revenue requirements and will not be recovered in DGE customer rates.
1.3 DGE has provided written confirmation to the Commission that it accepts the conditions to the
CPCN, within 60 calendar days of the date of this Order. 2. If any of the conditions in the CPCN for the district energy system are not met, the CPCN is cancelled
immediately. 3. DGE is responsible for obtaining all other necessary licences, permits and agency approvals. 4. DGE will file with the Commission annual reports on the construction of the district energy system that
provide explanations for any material variances from the schedule and cost estimate in the Application.
![Page 351: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/351.jpg)
5
Order/C-1-08_Dockside Green Energy CPCN_Reasons for Decision
BRITISH COLUMBIA
UTILITIES COMMISSION ORDER NUMBER C-1-08
5. Subject to DGE holding a CPCN for the DES, the Commission approves the revenue requirements methodology as set out in the Application and supporting materials, including that the revenue requirements will be calculated using a capital structure that has 40 percent equity, a return on equity (“ROE”) that is 100 basis points higher than the benchmark ROE that the Commission establishes for a low-risk benchmark utility, and DGE’s actual interest rate. This methodology will apply for subsequent years unless and until it is changed by future Commission Order.
6. The Commission approves the rate design proposed by DGE, which has a 50 percent variable component and
a 50 percent monthly charge based on area in square metres, unless and until it is changed by a future Commission Order.
7. Subject to DGE holding a CPCN for the district energy system, the Commission approves the revised
Hydronic Energy Service Terms and Conditions (the “Tariff”) for Dockside Green as set out in Exhibit B-4, Attachment 19.1, subject to DGE filing by June 1, 2008 a Tariff that incorporates the revision to Section 23 that is directed in the Reasons for Decision in Appendix A.
8. DGE will maintain separate accounts for the district energy system at Dockside Green and will file Annual
Reports and financial statements that summarize the results of utility operations within four months of its fiscal year-end, and which address the directions on Annual Reports that are set out in the Reasons for Decision in Appendix A. The Annual Reports will be in a form to be developed in consultation with Commission staff.
9. DGE will provide a copy of this Order and the 24-hour emergency contact number to each current and new
customer, and will maintain a copy of its approved Tariff and current customer rates for inspection by customers on its web site and, in the event it maintains an office in Victoria, at the Victoria office.
10. DGE will submit all service agreements with off-site customers to the Commission in a timely fashion, for
approval as Rate Schedules or Tariff Supplements. 11. DGE will comply with all directions in the Reasons for Decision attached as Appendix A to this Order. DATED at the City of Vancouver, in the Province of British Columbia, this 18th day of April 2008.
BY ORDER Original signed by: L.F. Kelsey Commissioner Attachment
![Page 352: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/352.jpg)
APPENDIX A to Order No. C-1-08
Page 1 of 13
Dockside Green Energy LLP Application for a Certificate of Public Convenience and Necessity
To Construct and Operate the Dockside Green District Energy System
REASONS FOR DECISION
___________________________________________________________________________________________ 1.0 BACKGROUND
1.1 Application
On December 21, 2007 Dockside Green Energy LLP (“DGE”) applied (“the Application”) to the British
Columbia Utilities Commission (“BCUC”, “Commission”) for:
(a) a Certificate of Public Convenience and Necessity (“CPCN”) to construct and operate a district
energy system (“DES”) to provide energy service to the Dockside Green development currently being built on the Inner Harbour in Victoria;
(b) approval of:
• a levelized rate base • forecast revenue requirements, including:
• a deemed capital structure of 40% equity, 60% debt • an allowed return on equity of 9.62% • long term debt financing at 6.5% • forecast operating costs
• accounting treatment of:
• depreciation of plant assets • a 20 year levelized rate structure
• rate design • Service Agreement Terms & Conditions [Tariff]
The Dockside Green development is, if not unique, at least rare in its commitment to environmental and energy
sustainability relative to current standards of development. These characteristics are described in the following
section. The extent to which these factors have a bearing on the Commission’s review of the Application is
described elsewhere in this Decision.
![Page 353: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/353.jpg)
APPENDIX A to Order No. C-1-08
Page 2 of 13
1.2 The Dockside Green Project
Dockside Green is a mixed residential, office, retail and industrial development with a planned total floor space of
129,658 square meters (approximately 1.4 million square feet) on fifteen acres of formerly contaminated
industrial land in Victoria. The project is to be developed in nine phases over seven years and the first phase of
residential condominiums is now complete.
The developer of the project is the Dockside Green Limited Partnership (“Dockside Green LP” or “Developer”),
which is owned by Vancity Capital Corporation (“Vancity”) and Windmill West Properties LLP (“Windmill”).
The Disclosure Statement filed with the Superintendent of Real Estate (“Disclosure Statement”) and with the
Commission in response to Commission Information Request No. 1 (Exhibit B-2) states that the Developer
intends to construct a biomass facility to provide hot water heating to Dockside Green and will establish a private
utility company to operate a wood-waste gasification system (the “Waste Wood Facility”). Further to that
commitment, Dockside Green LP has established DGE as the district energy system utility.
The Dockside Green project will be a sustainable development certified by the Canada Green Building Council’s
Leadership in Energy and Environmental Design (“LEED”TM) green building rating system (Exhibit B-1, p. 30).
LEED certification involves certification and credits in five principal LEED categories: sustainable sites, water
efficiency, energy and atmosphere, materials and resources, and indoor environmental quality. LEED-Platinum is
the highest of the four possible levels of LEED certification (Exhibit B-1, p. 7; Exhibit B-2, p. 1). The
Application states that the Developer’s commitment to the LEED-Platinum certification is reinforced by a
developer covenant with the City of Victoria that requires the Developer to pay the city a penalty for every square
foot of every building that does not achieve the LEED-Platinum rating (Exhibit B-1, p. 30).
Further to the LEED-Platinum certification of the project, DGE will use a wood-waste fired gasification system
provided by Nexterra Energy Corp. (“Nexterra”) capable of delivering 2 MW thermal heat (“MWth”) for
residential/commercial district heating. Nexterra also has plants operating at the University of South Carolina and
the Tolko Industries Ltd. plywood mill near Kamloops (Exhibit B-1, pp. 52-53). The energy derived from the
system is intended to reduce the greenhouse gas emissions that would otherwise be produced from energy use at
the development (Exhibit B-1, p. 7; Exhibit B-2, Attachment 9.3, p. 4). Technology Early Action Measures
(“TEAM”) funding from the federal Department of Natural Resources will provide partially repayable assistance
of $1.5 million. TEAM funding supports projects that are designed to demonstrate technologies that mitigate gas
emissions and sustain economic and social development (Exhibit B-1, pp. 52-53).
![Page 354: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/354.jpg)
APPENDIX A to Order No. C-1-08
Page 3 of 13
Also as part of the project’s LEED-Platinum certification, the Developer intends to construct on-site sewage
treatment systems and will establish a separate private utility company to operate the sewage systems to provide
sewage service to Dockside Green, and to provide irrigation service and water for toilet facilities. DGE states that
Dockside Green, with future growth, will also include sewer waste heat recovery technology to provide energy to
customers through the DES (Exhibit B-2, Attachment 1.1, p. 28).
In addition, the Developer has agreed to implement certain transportation strategies including: a mini-transit
service offering shuttle service from Dockside Green to various downtown Victoria locations; a car-share program
offering residents the use of electric and high fuel-efficiency vehicles to be provided by the developer; and
installation of bicycle racks throughout Dockside Green (Exhibit B-2, Attachment 1.1, p. 28).
The Application states that all of the buildings in the development will be designed to outperform the Model
National Energy Code for Buildings by at least 40 percent which “…will translate into savings for occupants as
well as peak electricity demand reductions that will benefit the Province of BC” (Exhibit B-1, p. 31).
1.3 Dockside Green Energy LLP
DGE is jointly owned by Corix Utilities Inc. (“Corix”), Terasen Energy Services Inc. (“TES”), Vancity and
Windmill. Corix, Windmill, and TES each own a 17 percent interest in DGE and Vancity owns the remaining
49 percent. Corix is experienced in the ownership and operation of utility and district energy systems, and DGE
has contracted with Corix to provide utility operations (Exhibit B-1, pp. 2-8).
In addition to serving the customers within the Dockside Green development, DGE will be seeking to serve
customers in close proximity to, but outside of, the project (“Off-site” customers) in order to earn incremental
revenues and reduce the cost of serving the Dockside Green customers. Although DGE states that it has received
expressions of interest from other nearby developments and is engaged in other nearby prospects, the only Off-
site customer currently forecast to be served by DGE is a Delta Hotel. DGE currently has a Memorandum of
Understanding (“MOU”) with the Delta Hotel and DGE assumes that the Delta Hotel MOU will be converted into
a sales agreement with no material changes (Exhibit B-1, pp. 20-21).
DGE will meter energy use at the building level and will bill each strata as a separate customer. Each strata will
sub-meter energy use for the purpose of allocating energy costs within the strata (Exhibit B-1, p. 8).
![Page 355: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/355.jpg)
APPENDIX A to Order No. C-1-08
Page 4 of 13
1.4 Regulatory Process for Review of the Application
DGE filed its Application on December 21, 2007. By Commission Order No. G-8-08 dated January 11, 2008, the
Commission determined that a written public hearing process was necessary to review the Application and a
public notice and Regulatory Timetable were prepared. On February 28, 2008 DGE’s letter to the Commission
requested that the Regulatory Timetable be revised, and by letter dated February 29, 2008, the Commission
accepted DGE’s proposal.
The Commission issued Information Requests No. 1 and 2 to DGE on January 11, 2008 and February 15, 2008,
respectively and DGE filed its responses on January 21, 2008 and March 6, 2008 respectively. On March 11,
2008 DGE filed some outstanding responses to Information Request No. 1 and its Final Submission.
The only party to intervene in the written hearing process was SunGen Sustainable Developments Inc., which did
not file information requests, evidence or final submissions with respect to the Application.
On March 20, 2008 DGE filed a request for approval to charge the rates proposed in the Application on an interim
basis in order to supply hydronic energy service to the initial strata complex at Dockside Green based on the
applied-for rates and terms and conditions pending a final Commission Decision. The Commission, by letter
dated March 28, 2008, concluded that it would not be appropriate to approve rates for Dockside Green prior to the
issuance of a CPCN to DGE and denied DGE’s request for approval to charge rates on an interim basis. The
Commission noted that the lack of a CPCN and approved rates should not of itself prevent DGE from providing
service to customers at Dockside Green, and the Commission would be unlikely to object to DGE charging for
such service, as it views the arrangements for service prior to granting a CPCN as a private matter between the
parties.
2.0 CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
DGE applied pursuant to Sections 45 and 46 of the Utilities Commission Act (“UCA” or “Act”) for a CPCN to
construct and operate a DES to provide energy service to the Dockside Green development.
Section 45 of the UCA states, in part:
![Page 356: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/356.jpg)
APPENDIX A to Order No. C-1-08
Page 5 of 13
“45 (1) Except as otherwise provided, after September 11, 1980, a person must not begin the construction or operation of a public utility plant or system, or an extension of either, without first obtaining from the commission a certificate that public convenience and necessity require or will require the construction or operation.”
Section 46 of the UCA states, in part:
“(1) An applicant for a certificate of public convenience and necessity must file with the commission information, material, evidence and documents that the commission prescribes.
(2) The commission has a discretion whether or not to hold any hearing on the application.
(3) The commission may issue or refuse to issue the certificate, or may issue a certificate of public convenience and necessity for the construction or operation of a part only of the proposed facility, line, plant, system or extension, or for the partial exercise only of a right or privilege, and may attach to the exercise of the right or privilege granted by the certificate, terms, including conditions about the duration of the right or privilege under this Act as, in its judgment, the public convenience or necessity may require.”
The Commission reviewed the Application through a written hearing process as described above and notes that
there was no opposition to the Application. The Commission understands the nature of both the DES and the
Dockside Green project to be unique in many respects. The thermal energy generation system technology
proposed for the DES will be provided under contract as a “turn key” installation (Exhibit B-1, p. 12). A multi-
year draft contract for the supply of biomass for the DES is in place (Exhibit B-1, p. 39). The Commission
considers the unique nature of the development, the emerging technology of the thermal energy generation system
and the security of supply and quality of biomass to be risks unique to this project and, to properly conserve the
public interest, should be shareholder risks. These issues are addressed elsewhere in this Decision.
Commission Determination
The Commission Panel approves the CPCN Application for the DES as described in the Application
subject to the conditions made elsewhere in this Decision. DGE will provide written confirmation to the
Commission accepting the conditions of the CPCN within 60 calendar days of this Order. Should such
confirmation not be received the CPCN is cancelled immediately.
![Page 357: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/357.jpg)
APPENDIX A to Order No. C-1-08
Page 6 of 13
3.0 RATES
3.1 Adjustment of Rates
DGE states that because it has proposed offering levelized rates, it will be forgoing a portion of its allowed return
during the build-out period in order to offer customers lower initial rates, and that the opportunity for generating
additional revenue (from off-site customers) reduces the under-earning in the early years of the project
(Exhibit B-2, p. 7). DGE is proposing that additional revenues from other off-site customers be credited to the
utility in order to allow a potential equity return over the 20-year period that is equal to or in excess of the target
ROE (Exhibit B-1, p. 49).
DGE also states that it “…would adjust the levelized rates provided that DGE has earned a cumulative average
rate of return since the inception of rates exceeding its allowed rate of return or if such rate adjustment would not
otherwise impair DGE’s ability to earn a reasonable rate of return on its investment over the term of the levelized
rate period” (Exhibit B-2, p. 7).
Commission Determination
The Commission Panel notes that the allowed rate of return is not a guarantee that the utility will achieve that
return, and also that a levelized tariff rate over time implies a recognition that there may be over-earnings in some
years that compensate for under-earnings in the early years of a project. The Commission Panel determines
that given the nature of the Dockside Green project the levelized rate proposed, including the proposed
deferral of depreciation of plant assets for the Dockside Green project, is appropriate.
The Commission Panel determines that in its Annual Reports, DGE should include a calculation of the
cumulative average rate of return since the inception of rates. The Commission will consider that
cumulative average rate of return along with any other factors it considers appropriate to determine at that
time whether a revision to the tariff rate is required.
![Page 358: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/358.jpg)
APPENDIX A to Order No. C-1-08
Page 7 of 13
4.0 REVENUE REQUIREMENTS
4.1 Capital Structure and Return on Equity
DGE states that it expects to capitalize 60 percent of the net rate base with long term debt, with the interest rate on
the debt expected to be 6.5 percent and amortized over 258 months. DGE expects to capitalize the remaining
40 percent of the rate base with common equity “…at a target return on equity (ROE) of 9.7 percent, which is
based on the current allowed ROE for a low-risk benchmark utility plus 100 basis points” (Exhibit B-1, p. 39).
DGE subsequently revised its financial model to incorporate an ROE of 9.62 percent, which is 100 basis points
greater than the 2008 allowed ROE for a low-risk benchmark utility of 8.62 percent (Exhibit B-4, p. 7).
DGE states that the capital structure and target ROE provide the utility owner an opportunity to earn a fair return
on invested equity taking into consideration various risks associated with the enterprise (Exhibit B-1, pp. 48-49).
DGE provides a table showing the capital structures and risk premiums for some other British Columbia utilities
and submits that DGE’s business risk is directionally higher than established utilities because “…DGE is a new
business venture employing emerging technology, in which the exact nature of future customer needs is difficult
to estimate with precision” (Exhibit B-4, p. 6).
DGE highlights the energy demand risk arising from the long lead time required for the Dockside Green project
and the consequent uncertainty in forecasting the composition of future housing and timing of customer additions.
DGE notes that the assumed energy use volumes for Dockside Green are based on engineering estimates that
consider the expected energy requirements associated with LEED-Platinum standards, and that the volume risk
arises from occupancy, energy intensity, weather and other forecast errors (Exhibit B-4, p. 4). DGE notes that it
has mitigated the demand forecast risk in large part through the proposed rate structures (a 50 percent
fixed/50 percent variable rate structure) and through Service Agreements with DGLP (Exhibit B-1, p. 48).
The other significant risk claimed by DGE is that of construction cost escalation, which it submits has also been
mitigated through the Service Agreement with DGLP. DGE also states that it will attempt to further mitigate the
risk through fixed price contracts (Exhibit B-1, p. 48). DGE confirms that Nexterra has offered a fixed price turn
key contract for the gasification plant, back-up boiler and building, and that DGLP will provide the site
preparation, road access, landscaping and all required utilities to the central heating plant. DGE further confirms
that the only areas of uncertainty arise from changes to the specifications or scope of the project required by DGE
(Exhibit B-2, p. 9).
![Page 359: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/359.jpg)
APPENDIX A to Order No. C-1-08
Page 8 of 13
Other risks cited by DGE include:
• Operating cost inputs and inflation rates; • Uncertainty of Off-site sales volumes; • Unknown escalation rates of competing fuels; and • Small size company and limited customer base.
DGE is proposing that changes in non-controllable costs be flowed through in future onsite rates, such changes to
include changes in plant operating costs during the initial three years, changes in biomass, natural gas, and
electricity costs, and changes in legal and regulatory requirements. The achieved return on capital over the 20-
year levelization period would be subject to future reviews for reasonableness by the Commission (Exhibit B-1,
p. 49).
The risk of cost changes related to the primary fuel (wood-waste) for the Wood Waste Facility, is limited by the
binding letter of intent between DGE and the supplier, Three Point Properties LLP (“Three Point”), which
provides for a 20-year supply of fuel at a fixed price of $20 per BDT for the first ten year period and $30 per BDT
for the subsequent ten year period. DGE notes that the arrangement with Three Point provides the utility with a
reliable supply of biomass that meets the Nexterra specifications at a stable predictable cost, but that the
arrangement does not restrict the utility from pursuing other supply sources, which may enhance price-
competitiveness (Exhibit B-2, p. 5).
Commission Determination
The Commission has reviewed the evidence provided by DGE and concurs that there are risks associated with the
project, but also notes that DGE has taken measures to mitigate those risks. Such measures include the levelized
rate structure that includes a higher fixed rate component than typical utility rates, the use of cost or risk sharing
agreements, and the use of fixed price long-term contracts.
DGE provided a list of some other B.C. utilities and the capital structures and risk premiums allowed for those
utilities (Exhibit B-4, p. 6) and the Commission has also considered those comparables.
Finally, the Commission has considered the LEED-Platinum design of the Dockside Green development and that
all of the buildings in the development will be designed to outperform the Model National Energy Code for
Buildings by at least 40 percent, which will translate into savings for occupants. Vancity and Windmill make up
DGLP and own 49 percent and 17 percent of DGE respectively. In the Commission’s view, the allowed capital
structure and ROE should not penalize green developments that incorporate DES.
![Page 360: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/360.jpg)
APPENDIX A to Order No. C-1-08
Page 9 of 13
The Commission determines that given the unique nature of this project, its small size, and the fact that it
is an entirely greenfield project, the applied-for capital structure and risk premium of 100 basis points
should be approved. The Commission also determines that even though the levelized rate is based on an
ROE of 9.62 percent, DGE should use the ROE for a low-risk benchmark utility as determined by the
Commission plus the additional 100 basis points allowed as a basis for calculating its allowed earnings for
each year for service to Dockside Green.
The Commission conditionally approves the long-term debt financing rate of 6.5 percent but requires that
any debt instrument be filed with the Commission and such instrument will be subject to acceptance at that
time.
5.0 TARIFF TERMS AND CONDITIONS
5.1 Sections 22 and 23
Section 22: Term of Service Agreement states that the initial term of the service agreement, when a Main
Extension is required, will be for a period of time fixed by the utility not exceeding the number of years used to
calculate the revenue in the Main Extension test. The Main Extension test is an economic test described in
Section 10 of the Tariff Terms and Conditions, and establishes that if the economic test results indicate a negative
net present value for a proposed extension, the extension may proceed if the customers to be served by the
extension provide a contribution in aid of construction so that any projected revenue shortfall is eliminated.
Section 23: Termination of Service states, among other things, that termination of service may result in the
customer being charged the full cost of all infrastructure associated with the provision of service to the customer
as determined by the utility to ensure other customers are not adversely impacted by the termination.
The Commission Panel is not persuaded that the requirement in Section 23 indicating that a customer terminating
service may be charged the full cost of all infrastructure associated with the provision of service to the customer
“…as determined by the utility…” is necessary or in the public interest. The Commission Panel also notes that
the “…full cost of all infrastructure…” is not a defined term. While the Commission Panel can speculate or
assume that the “full cost” refers to the depreciated book value of the infrastructure in question, and that the use of
the depreciated book value might be sufficient to ensure that other customers are not adversely impacted, it is not
clear that such is the case. The Tariff provision as currently worded would not preclude an argument that full cost
refers to the original, undepreciated cost of the infrastructure.
![Page 361: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/361.jpg)
APPENDIX A to Order No. C-1-08
Page 10 of 13
Commission Determination
Provisions concerning recovery of infrastructure costs may be appropriate and may be included in contracts
between the DGE and the Developer, and ultimately stratas within the Dockside Green development. That
appears to be within the control of DGE and the Developer. For new Off-site attachments, to the extent that they
require new infrastructure, the Commission Panel is of the view that DGE has the ability under Section 22 to set a
term of service equal to the number of years used to calculate the revenue in the Main Extension test. Therefore,
the Commission determines that contractual provisions between the customers and DGE, the Main Extension test,
and the ability of DGE under Section 22 to establish for any new customer on a main extension a term of service
that is equal to the number of years used to calculate the revenue in the Main Extension test, in combination,
provide adequate protection to DGE, without the need for the noted provision in Section 23. Consequently, the
Commission directs DGE to remove the sentence that reads as follows from Section 23:
“Termination of Service may result in the Customer being charged the full cost of all infrastructure associated with the provision of Service to the Customer as determined by the Utility to ensure other Customers on the Hydronic Energy system are not adversely impacted by the termination.”
The Commission also requires that any rate changes, which may be required either for new or existing customers,
be included in a tariff and submitted to the Commission for approval prior to such rates coming into effect.
6.0 RESPONSIBILITY FOR RISKS
DGE identifies a number of risks and notes the actions it has taken to mitigate many of the risks. The
Commission, in approving the requested capital structure and ROE, is recognizing the risks associated with the
unique nature of the project, in every respect.
For greater clarity and certainty the Commission addresses the following risks and clarifies responsibility for
each.
6.1 Thermal Energy Generation System
DGE states that Nexterra has been contracted to provide a turn key gasification system that will supply 2 MWth
of hot water to the Dockside Green DES and that the gasification system will be housed to ensure that there is no
disturbance to the local community from the gasification system operations (Exhibit B-1, p. 12). Nexterra will
![Page 362: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/362.jpg)
APPENDIX A to Order No. C-1-08
Page 11 of 13
guarantee the heat generation capacity and emissions for the gasification system (Exhibit B-1, p.18). The system
will have a 3.4 MWth natural gas back-up system that will provide peaking capacity and back-up heat when the
gasification plant is not in operation. The Application states that as a requirement of the LEED-Platinum
designation, any credits or monetary value assigned to greenhouse gas emissions at Dockside Green will be
owned by the developer (Exhibit B-1, p. 33).
DGE, in its justification for requested equity ratio and risk premium, describes the operation as a “new business
venture employing emerging technology” (BCUC IR 2.23.1). The Commission is of the view that in allowing the
requested equity ratio and risk premium, customers should not be exposed to risks from uncertainties related to
the “emerging technology”. Furthermore, the inability of customers to share in any monetary benefits related to
the greenhouse gas impact of this technology indicates that it would not be reasonable for them to be responsible
for any extraordinary costs that may be required in order to realize such benefits.
Commission Determination
Any extraordinary capital expenditures or operating and maintenance expenses, natural gas and/or any
other commodity costs that are incremental to the costs included in the revenue requirements estimate
presented in the Application and are required in order that the thermal energy generation system referred
to as the Nexterra Plant fulfills the role described for it in the Application and supporting material, will not
be included in DGE rate base and revenue requirements, and will not be recovered in DGE customer rates.
6.2 Biomass Plant Fuel and Operating Costs
DGE states that biomass for the gasification plant will be supplied from local sources and, at the time of the
Application, there is a draft 20-year fixed price agreement between DGE and a local supplier to supply wood-
waste (Exhibit B-1, p. 38). DGE states that in addition to this draft agreement it has identified several alternate
sources of supply should these be required. DGE proposes that changes in non-controllable costs be flowed
through in future onsite rates, and includes in those costs, changes in plant operating costs and changes in biomass
costs. In view of the costs stated in the draft 20-year fixed price agreement, which underpin the economics of the
DES and the assurance of alternate sources of supply, and consideration of the risks associated with emerging
technology in the ROE, the Commission Panel will not permit the customer to be exposed to the risk of higher
costs for biomass fuel.
![Page 363: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/363.jpg)
APPENDIX A to Order No. C-1-08
Page 12 of 13
Commission Determination
Any extraordinary capital expenditures or operating and maintenance expenses, natural gas and/or any
other commodity costs that are incremental to the costs included in the revenue requirements estimate
presented in the Application and are required in order to obtain, process, handle or replace the fuel source
for the district energy system, including the cost of gas that is used because wood supply is not available or
the cost of wood supply to the extent it exceeds the price set out in the Binding Letter of Intent with Three
Point Properties LLP that is Attachment 7.1 in Exhibit B-2, will not be included in the DGE rate base and
revenue requirements, and will not be recovered in DGE customer rates.
7.0 ANNUAL REPORTING REQUIREMENTS
Section 24 of the Act requires that:
“In its supervision of public utilities, the commission must make examinations and conduct inquiries necessary to keep itself informed about
(a) the conduct of public utility business, (b) compliance by public utilities with this Act, regulations or any other law, and (c) any other matter in the commission’s jurisdiction.”
In compliance with Section 24, the Commission has directed the utilities under its jurisdiction to file Annual
Reports within four months after the end of the financial year. The Commission is empowered to require the
Annual Report filing pursuant to Section 49 of the Act which states that:
“The commission may, by order, require every public utility to do one or more of the following:
(a) keep the records and accounts of the conduct of the utility's business that the commission may specify, and for public utilities of the same class, adopt a uniform system of accounting specified by the commission; (b) provide, at the times and in the form and manner the commission specifies, a detailed report of finances and operations, verified as specified; (c) file with the commission, at the times and in the form and manner the commission specifies, a report of every accident occurring to or on the plant, equipment or other property of the utility, if the accident is of such nature as to endanger the safety, health or property of any person; (d) obtain from a board, tribunal, municipal or other body or official having jurisdiction or authority, permission, if necessary, to undertake or carry on a work or service ordered by the commission to be undertaken or carried on that is contingent on the permission.”
![Page 364: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/364.jpg)
APPENDIX A to Order No. C-1-08
Page 13 of 13
The Commission direction to utilities regarding the annual report requirements were updated in Commission
Letter No. L-36-94.
The Commission has established an Annual Report form for steam/hot water utilities that are applicable to DGE. DGE can obtain a copy of the Annual Report forms for steam/hot water utilities from the Commission.
DGE’s Annual Report to the Commission is also to contain an updated CPCN Summary section of the Financial Model that was submitted in Exhibit B-4 (“Updated CPCN Summary”). The Updated CPCN Summary in DGE’s Annual Report to the Commission is to show the forecast and actual results by year from 2009 to 2018 with an explanation of the variances in the current year from forecast.
![Page 365: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/365.jpg)
ERICA M. HAMILTON COMMISSION SECRETARY
[email protected] web site: http://www.bcuc.com
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, B.C. CANADA V6Z 2N3
TELEPHONE: (604) 660-4700 BC TOLL FREE: 1-800-663-1385
FACSIMILE: (604) 660-1102
Log No. 25530
PF/Dockside Green Reconsider C-1-08/Vary Conditions Determination
VIA E-MAIL [email protected] June 30, 2008 Mr. David Bursey Bull, Housser & Tupper LLP Barristers & Solicitors 3000 Royal Centre P.O. Box 11130 1055 West Georgia Street Vancouver, B.C. V6E 3R3
Re: Dockside Green Energy LLP (“DGE”) Certificate of Public Convenience and Necessity for the District Energy System
Application for Reconsideration of BCUC Order No. C-1-08 dated April 17, 2008 (“Order”)
Further to DGE’s May 30, 2008 application for reconsideration of Commission Order No. C-1-08, enclosed is Order No. C-3-08 and Reasons for Decision. Yours truly, Original signed by: Erica M. Hamilton cms Enclosure
![Page 366: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/366.jpg)
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, B.C. V6Z 2N3 CANADA
web site: http://www.bcuc.com
TELEPHONE: (604) 660-4700 BC TOLL FREE: 1-800-663-1385
FACSIMILE: (604) 660-1102
…/2
BR I T I S H COL U M BI A
UTI LI TI E S COMM I SSI ON OR D E R NUM B E R C-3-08
IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
an Application by Dockside Green Energy LLP for Reconsideration of Certain Provisions of
Commission Order No. C-1-08 and Reasons for Decision BEFORE: L.F. Kelsey, Panel Chair and Commissioner P.E. Vivian, Commissioner June 30, 2008 A.A. Rhodes, Commissioner
O R D E R
WHEREAS: A. By letter dated December 21, 2007, Dockside Green Energy LLP (“DGE”) applied to the Commission for a
Certificate of Public Convenience and Necessity (“CPCN”) to construct and operate a district energy system (“DES”) to provide energy service to the Dockside Green development (“Dockside Green”) currently being built on the Inner Harbour in Victoria, B.C. and for approval of Service Agreements, Terms and Conditions of Service and levelized rates (the “Application”); and
B. By Order No. G-8-08 dated January 11, 2008, the Commission established a Written Public Hearing and
Regulatory Timetable; and C. By letters dated January 11 and February 15, 2008, the Commission issued Information Requests No.1 and
No. 2 to DGE; and D. By letters dated January 21 and March 6, 2008, DGE filed responses to Information Requests No. 1 and
No. 2; and E. By e-mail dated January 23, 2008 SunGen Sustainable Developments Inc. filed a request for Intervenor
status; and F. By letter dated March 11, 2008 DGE filed its final submission; and G. By letter dated March 20, 2008, DGE filed responses to outstanding questions from Information Request
No. 1; and H. By Order No. C-1-08 (the “Order”) the Commission granted a CPCN to DGE for the construction and
operation of a DES to provide hydronic energy service at Dockside Green as set out in the Application, subject to the following conditions (“Conditions”):
![Page 367: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/367.jpg)
2
…/3
BR I T I S H COL U M BI A
UTI LI TI E S COMM I SSI ON OR D E R NUM B E R C-3-08
1.1 Any extraordinary capital expenditures or operating and maintenance expenses, natural gas and/or any
other fuel commodity costs that are incremental to the costs included in the revenue requirements estimate presented in the Application and are required in order that the thermal energy generation system referred to as the Nexterra Plant fulfills the role described for it in the Application and supporting material, will not be included in DGE rate base and revenue requirements and will not be recovered in DGE customer rates.
1.2 Any extraordinary capital expenditures or operating and maintenance expenses, natural gas and/or any
other fuel commodity costs that are incremental to the costs included in the revenue requirements estimate presented in the Application and are required in order to obtain, process, handle or replace the fuel source for the district energy system, including the cost of gas that is used because wood supply is not available or the cost of wood supply to the extent it exceeds the price set out in the Binding Letter of Intent with Three Point Properties LLP that is Attachment 7.1 in Exhibit B-2, will not be included in the DGE rate base and revenue requirements and will not be recovered in DGE customer rates.
1.3 DGE has provided written confirmation to the Commission that it accepts the conditions to the CPCN,
within 60 calendar days of the date of this Order; and I. By letter dated May 30, 2008 DGE requested, pursuant to section 99 of the Utilities Commission Act (the
“Act”) that the Commission reconsider and vary its Order to remove the Conditions (the “Reconsideration Application”); and
J. By letter dated June 4, 2008, the Commission accepted the position of DGE that the matter should proceed
directly to a reconsideration and the Commission established a reconsideration of the Conditions, by way of a Written Public Hearing, based on the merits of the matter as set out in the Reconsideration Application; and
K. By copy of its letter dated June 4, 2008, the Commission provided an opportunity for the Intervenor of record
to comment on DGE’s request for reconsideration of Conditions in the Order; and L. The Intervenor did not file comments; and M. By letter dated June 6, 2008, DGE confirmed that was is content to rely on its submission dated 30 May 2008
for the purpose of the Commission’s reconsideration of the Conditions in the Order; and N. The Commission has considered the matter and determined that Commission Order No. C-1-08 should be
varied.
![Page 368: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/368.jpg)
3
Orders/C-3-08_Dockside Green Reconsider C-1-08 Reasons
BR I T I S H COL U M BI A
UTI LI TI E S COMM I SSI ON OR D E R NUM B E R C-3-08
NOW THEREFORE pursuant to Section 99 of the Act, the Commission orders that Commission Order No. C-1-08 is varied as follows: 1. Sections 1.1, 1.2, 1.3 and 2 are removed. 2. Section 11 should be read so as to reflect the removal of the Commission determinations and directions set
out in Sections 1.1, 1.2, 1.3 and 2 only and should include all other directions in the Reasons for Decision attached as Appendix A to Commission Order No. C-1-08 and Appendix A to this Order.
DATED at the City of Vancouver, in the Province of British Columbia, this 30th day of June 2008. BY ORDER Original signed by: L.F. Kelsey Commissioner Attachment
![Page 369: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/369.jpg)
APPENDIX A to Order No. C-3-08
Page 1 of 11
Application by Dockside Green Energy LLP for Reconsideration of Certain Provisions of
Commission Order No. C-1-08 and Reasons for Decision
REASONS FOR DECISION
1.0. BACKGROUND
1.1 Brief Summary of the CPCN Application
On December 21, 2007 Dockside Green Energy LLP (“DGE”) applied (“the Application”) to the British
Columbia Utilities Commission (“BCUC”, “Commission”) for:
(a) a Certificate of Public Convenience and Necessity (“CPCN”) to construct and operate a district energy system (“DES”) to provide energy service to the Dockside Green development currently being built on the Inner Harbour in Victoria, and
(b) approval of:
• a levelized rate base • forecast revenue requirements, including:
o a deemed capital structure of 40% equity, 60% debt o an allowed return on equity of 9.62% o long term debt financing at 6.5% o forecast operating costs
• accounting treatment of: o depreciation of plant assets o a 20 year levelized rate structure o rate design
• Service Agreement Terms & Conditions [Tariff]
The Dockside Green development is, if not unique, at least rare in its commitment to environmental and energy
sustainability relative to current standards of development.
Dockside Green is a mixed residential, office, retail and industrial development with a planned total floor space of
129,658 square meters (approximately 1.4 million square feet) on fifteen acres of formerly contaminated
industrial land in Victoria. The project is to be developed in nine phases over seven years and the first phase of
residential condominiums is now complete.
![Page 370: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/370.jpg)
APPENDIX A to Order No. C-3-08
Page 2 of 11
The developer of the project is the Dockside Green Limited Partnership (“Dockside Green LP” or “Developer”),
which is owned by Vancity Capital Corporation (“Vancity”) and Windmill West Properties LLP (“Windmill”).
The Developer intends to construct a biomass facility to provide hot water heating to Dockside Green and has
established a private utility company, DGE, as the district energy system utility to operate a wood-waste
gasification system (the “Waste Wood Facility”). DGE is jointly owned by Corix Utilities Inc. (“Corix”),
Terasen Energy Services Inc. (“TES”), Vancity and Windmill. Corix, Windmill, and TES each own a 17 percent
interest in DGE and Vancity owns the remaining 49 percent. Corix is experienced in the ownership and operation
of utility and district energy systems, and DGE has contracted with Corix to provide utility operations (Exhibit B-
1, pp. 2-8).
The Dockside Green project will be a sustainable development certified by the Canada Green Building Council’s
Leadership in Energy and Environmental Design (“LEED”™) green building rating system (Exhibit B-1, p. 30).
LEED certification involves certification and credits in five principal LEED categories: sustainable sites, water
efficiency, energy and atmosphere, materials and resources, and indoor environmental quality. LEED-Platinum is
the highest of the four possible levels of LEED certification (Exhibit B-1, p. 7; Exhibit B-2, p. 1), and is the
expected rating for the Dockside Green development.
Further to the LEED-Platinum certification of the project, DGE will use a wood-waste fired gasification system
provided by Nexterra Energy Corp. (“Nexterra”) capable of delivering 2 MW thermal heat (“MWth”) for
residential/commercial district heating. The energy derived from the system is intended to reduce the greenhouse
gas emissions that would otherwise be produced from energy used at the development (Exhibit B-1, p. 7;
Exhibit B-2, Attachment 9.3, p. 4). DGE confirms that Nexterra has offered a fixed price turn key contract for
the gasification plant, back-up boiler and building, and that Dockside Green LP will provide the site preparation,
road access, landscaping and all required utilities to the central heating plant. DGE further confirms that, with
respect to the Nexterra plant, the only areas of uncertainty arise from changes to the specifications or scope of the
project required by DGE (Exhibit B-2, p. 9).
![Page 371: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/371.jpg)
APPENDIX A to Order No. C-3-08
Page 3 of 11
Nexterra will guarantee the heat generation capacity and emissions for the gasification system and will provide a
one year warranty covering the system and its components (Exhibit B-1, p. 18). DGE states that biomass for the
gasification plant will be supplied from local sources and, at the time of the Application, there is a draft 20-year
fixed price agreement between DGE and a local supplier to supply wood waste (Exhibit B-1, p. 38). DGE states
that in addition to this draft agreement it has identified several alternate sources of supply should these be
required. The system will have a 3.4 MWth natural gas back-up system that will provide peaking capacity and
back-up heat when the gasification plant is not in operation. The Application states that, as a requirement of the
LEED-Platinum designation, any credits or monetary value assigned to greenhouse gas emissions at Dockside
Green will be owned by the Developer (Exhibit B-1, p. 33). DGE will meter energy use at the building level and
will bill each strata as a separate customer. Each strata will sub-meter energy use for the purpose of allocating
energy costs within the strata (Exhibit B-1, p. 8).
Technology Early Action Measures (“TEAM”) funding from the federal Department of Natural Resources will
provide partially repayable assistance of $1.5 million. TEAM funding supports projects that are designed to
demonstrate technologies that mitigate gas emissions and sustain economic and social development (Exhibit B-1,
pp. 52-53).
In addition to serving the customers within the Dockside Green development, DGE will be seeking to serve
customers in close proximity to, but outside of, the project (“Off-site” customers) in order to earn incremental
revenues and reduce the cost of serving the Dockside Green customers. Although DGE states that it has received
expressions of interest from other nearby developments and is engaged in other nearby prospects, the only Off-
site customer currently forecast to be served by DGE is a Delta Hotel. DGE currently has a Memorandum of
Understanding (“MOU”) with the Delta Hotel and DGE assumes that the Delta Hotel MOU will be converted into
a sales agreement with no material changes (Exhibit B-1, pp. 20-21).
DGE states that the requested capital structure of 40 percent equity and 60 percent debt and target ROE of 9.62
percent provide the utility owner an opportunity to earn a fair return on invested equity taking into consideration
various risks associated with the enterprise (Exhibit B-1, pp. 48-49). DGE provides a table showing the capital
structures and risk premiums for some other British Columbia utilities and submits that DGE’s business risk is
directionally higher than established utilities because “…DGE is a new business venture employing emerging
technology, in which the exact nature of future customer needs is difficult to estimate with precision”
(Exhibit B-4, p. 6).
![Page 372: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/372.jpg)
APPENDIX A to Order No. C-3-08
Page 4 of 11
1.2 Highlights of the Decision
By Commission Order No. C-1-08 dated April 17, 2008 (the “Order”) the Commission granted a CPCN to DGE,
subject to the following conditions:
1.1 Any extraordinary capital expenditures or operating and maintenance expenses, natural gas and/or any other fuel commodity costs that are incremental to the costs included in the revenue requirements estimate presented in the Application and are required in order that the thermal energy generation system referred to as the Nexterra Plant fulfills the role described for it in the Application and supporting material, will not be included in DGE rate base and revenue requirements and will not be recovered in DGE customer rates.
1.2 Any extraordinary capital expenditures or operating and maintenance expenses, natural gas and/or
any other fuel commodity costs that are incremental to the costs included in the revenue requirements estimate presented in the Application and are required in order to obtain, process, handle or replace the fuel source for the district energy system, including the cost of gas that is used because wood supply is not available or the cost of wood supply to the extent it exceeds the price set out in the Binding Letter of Intent with Three Point Properties LLP that is Attachment 7.1 in Exhibit B-2, will not be included in the DGE rate base and revenue requirements and will not be recovered in DGE customer rates.
1.3 DGE has provided written confirmation to the Commission that it accepts the conditions to the
CPCN, within 60 calendar days of the date of this Order.
2. If any of the conditions in the CPCN for the district energy system are not met, the CPCN is cancelled immediately.
The Commission generally granted approval of other matters requested in the Application, subject to DGE
holding a CPCN for the DES, and with the exception of a small change to the Tariff as proposed.
2.0 APPLICATION FOR RECONSIDERATION
By Letter dated May 30, 2008 DGE advised the Commission that it has reviewed the Order and finds it acceptable
except for the conditions set out in sections 1.1 and 1.2 of the Order (“Conditions”). “Therefore, DGE requests,
pursuant to section 99 of the Utilities Commission Act (“Act”), that the Commission reconsider and Vary its Order
to remove the Conditions” (the “Reconsideration Application”). DGE cites the following grounds in support of
this request for reconsideration:
1. The Commission erred in law by including the Conditions in the Order without giving DGE an opportunity to comment on them.
![Page 373: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/373.jpg)
APPENDIX A to Order No. C-3-08
Page 5 of 11
2. Changed circumstances – recent amendments to the Act require the Commission to consider the British Columbia Energy Objectives.
DGE requested that the Commission consider the request for reconsideration expeditiously as the Dockside Green
project is advancing.
3.0 THE RECONSIDERATION PROCESS
In considering a request for reconsideration, the Commission follows the practice outlined in the Commission’s
Reconsideration Criteria, which is outlined in the Commission’s document, “Understanding Utility Regulation, A
Participants’ Guide to the BC Utilities Commission”. Although a request for reconsideration usually proceeds
through a two phase process, in the situation at hand the Commission accepted the position of DGE that the
matter should proceed directly to a reconsideration and by letter dated June 4, 2008 (Reconsideration Exhibit A-1)
established a reconsideration of Order No. C-1-08 according to a written submission process. In considering the
DGE request the Commission was of the understanding that DGE did not wish to file any further submissions on
this matter, other than a reply to a submission from the Intervenor in the proceeding that considered the CPCN
Application, should a submission be filed in this proceeding. The Commission requested that DGE confirm this
understanding. By letter dated Friday, June 6, 2008 DGE confirmed that it is “content to rely on its submission
dated 30 May 2008 for the purpose of the Commission’s reconsideration of the Conditions of the Order”
(Reconsideration Exhibit B-2).
One Intervenor registered in the proceeding to consider the CPCN Application for the DES, however, the
Commission notes that the Intervenor did not participate actively in the proceeding. The Commission, by copy of
its letter of June 4, 2008, provided an opportunity for the Intervenor of record to comment on DGE’s request for
reconsideration of Conditions of the Order. No comments from the Intervenor were received by the Commission
by the June 10, 2008 deadline.
4.0 RECONSIDERATION
4.1 DGE Position
DGE states that there are two reasons which support its request for reconsideration. The Commission considers
that these “reasons” address the question of “grounds” that must be met in order for a reconsideration to be
warranted.
![Page 374: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/374.jpg)
APPENDIX A to Order No. C-3-08
Page 6 of 11
“(a) The Commission erred in law The Commission erred in law by including the Conditions in the Order without giving DGE an opportunity to comment on them. Doing so contravenes basic principles of administrative fairness. Specifically, DGE was not given a fair opportunity to know the case it had to meet and was denied a right to be heard on the issues raised by the Conditions” (Reconsideration Exhibit B-1, p. 1). (b) Changed circumstances - recent amendments to the Act require the Commission to consider the British Columbia Energy Objectives Recent amendments to the Act require the Commission to consider the “government’s energy objectives” in making certain decisions whether to issue a CPCN” (Exhibit B-1, p. 2). DGE acknowledges that the Commission’s decision to impose the Conditions was made before these amendments to the Act came into force, but states “the Commission must now have regard to them during this reconsideration” (Reconsideration Exhibit B-1, p. 3).
DGE requests that the Commission delete Section 1 from the Order and identifies the following reasons why the
Conditions should be deleted from the Order. The Commission considers that the following reasons are
additional grounds, which go to the merits of the Reconsideration Application.
“ (a) The Conditions are ambiguous The meaning of “extraordinary” and “incremental” in the Conditions is unclear in the context in which those terms are used in each condition. The following text is similar in each condition: Any extraordinary capital expenditures or operating and maintenance expenses ... that are incremental to the costs included in the revenue requirements estimate presented in the Application . . . DGE does not know how the Commission intends to identify and measure “extraordinary incremental” costs in relation to the thermal energy generation system and the fuel supply. Consequently, DGE does not know how it would implement the Conditions. The uncertain scope of the Conditions makes it difficult for DGE to assess the associated financial risk.
(b) Unfair allocation of risk to DGE Extraordinary expenditures would normally include expenditures that by their inherent nature are difficult to forecast. If that is the intent in the Conditions, then the justification for requiring DGE to bear this forecast risk is not explained. The evidentiary record before the Commission does not justify allocating extraordinary financial risk to DGE.
![Page 375: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/375.jpg)
APPENDIX A to Order No. C-3-08
Page 7 of 11
DGE’s allowed return on equity (“ROE”) is not extraordinary - only 100 basis points higher than the ROE the Commission sets for a low-risk benchmark utility. In absolute dollars, 100 basis points at full build-out of the DGE system would equate to approximately $24,000 per year. The 100 basis point risk premium is modest and reasonable for a small utility like DGE, but certainly not adequate to compensate for the extraordinary financial risk imposed by the Conditions. As explained in DGE’s response to BCUC Information Request #2, Question 23.1, DGE’s equity ratio and level of ROE are comparable to other Commission-regulated utilities that have less risk.
For the setting of rates and service, the law is clear that the BCUC mandate under section 59 of the Act is to balance the interests of the utility as owner and the interests of the ratepayers as service users. The public utility’s interest is to receive a fair return on its prudently invested capital, which includes a fair return of the capital through reasonable depreciation and a fair return on the capital through a reasonable return on capital invested. The ratepayers’ interest is to receive safe and reliable service under terms and rates that are just and reasonable . . .
The Conditions upset the required balance by imposing unfair financial risk on DGE without a commensurate return on investment. In effect, the Commission is deciding in advance that any “extraordinary incremental” expense identified in the Conditions will not be prudent. DGE will be denied a fair opportunity to recover any such investment even if it is prudent and in the interests of the customers. DGE will not even have the opportunity to demonstrate the prudence of its actions.
(c) The Conditions are unnecessary to protect any public interest DGE presumes the Conditions are intended to protect the DGE ratepayers from extraordinary costs that DGE may encounter. DGE submits that it is unnecessary and, in fact, punitive for the Commission to prejudge future circumstances by deciding now that DGE must bear those extraordinary costs whatever the circumstances may be. The ambiguity in the Conditions will require DGE to return to the Commission in any event to verify that it is applying the Conditions correctly. The public interest would be better served by reviewing the relevant circumstances at the time the event occurs before making a judgment about how extraordinary incremental costs should be recovered. DGE is a regulated public utility under the Act. The Commission has comprehensive regulatory powers over DGE to protect customers and the public interest. If DGE incurs extraordinary incremental costs, then the Commission has the authority to review the prudence of those costs before DGE may include them in the rates it will charge its customers. DGE should be allowed a fair opportunity to recover those costs if they are prudent and reasonable. The Commission’s authority to review DGE’s costs is more than adequate to protect the customers and the public interest. The Commission has not explained why the additional measures in the Conditions are necessary to serve the public interest. The unique and innovative “green” nature of the Dockside Green development is a prominent feature of the development and will be well known to those who buy property in the development. In fact, the LEED Platinum aspect of the development is likely to be an attraction for many buyers. All buyers will receive extensive disclosure statements outlining the features of the development, including the DGE system. The disclosure statements are governed by the Real Estate Development Marketing Act. DGE will be also distributing information through a website and other means to explain its system. These circumstances do not warrant extraordinary “up front” measures to eliminate all equipment and energy supply risk at the expense of DGE.
![Page 376: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/376.jpg)
APPENDIX A to Order No. C-3-08
Page 8 of 11
(d) Inequitable treatment among utilities The Commission has not explained why DGE should bear financial risk that other utilities do not bear. Specifically, other utilities are typically permitted an opportunity to justify the prudence of any extraordinary incremental costs for equipment and energy supply, if and when those costs occur. If the Commission decides the costs are prudent, then the utility is allowed to include them in the rates. DGE filed a comprehensive application explaining the DGE system, the operation, the service, the forecast costs and the measures that DGE has taken to manage the risk in the contracts with Nexterra and Three Point Properties. DGE has also responded to numerous information requests that elaborate on the information in the application. DGE believes it has done as much or more than other established utilities have done in similar situations to demonstrate the prudence of its actions to date. Treating DGE in a different manner is inequitable and puts DGE at a competitive disadvantage. There is no basis in economic theory or law to do so in this case. Nor is there a need to do so.
(e) Contrary to the Act, British Columbia Energy Plan, and Energy Objectives The Conditions impose an unnecessary and unfair burden on DGE that frustrates the attempt to develop an innovative and environmentally-desirable approach to energy supply in an urban setting. This outcome is contrary to the objectives of the recent British Columbia Energy Plan and related policy initiatives. More importantly, the Conditions are contrary to the Government energy objectives as set out in the recently-amended Act. The DGE system is a district energy system that uses biomass as the fuel. These two elements both have significant environmental benefits compared to a conventional energy system by using fuel and infrastructure efficiently to reduce the environmental footprint. In supplying energy to the Dockside Green development and potentially other customers in the surrounding area, DGE’s objective is to make the Dockside Green development greenhouse gas neutral. The Dockside Green project is targeting a LEED Platinum standard. The project is already recognized as one of the world’s leading examples of sustainable development. In British Columbia, the Province’s energy policy objectives are designed to promote energy efficient and greenhouse gas neutral energy projects of this very type. Distributed energy systems have an important role to play in reducing the environmental impact of energy consumption. The Conditions create an entry barrier for innovative technology. This decision will send a signal to the market place that will discourage investment in innovative energy distribution systems. The default to conventional energy distribution systems will be compelling since the financial risk will be less. This outcome is contrary to the clear intent of the recent amendments to the Act” (Reconsideration Exhibit, pp. 3-8).
![Page 377: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/377.jpg)
APPENDIX A to Order No. C-3-08
Page 9 of 11
4.2 Commission Determination on Grounds for Reconsideration
The Commission will first respond to DGE’s grounds in support of the request for reconsideration.
1. The Commission erred in law by including the Conditions in the Order without giving DGE an opportunity to comment on them.
The Commission disagrees with DGE that there was an error in law. The Commission is of the view that the
Conditions to the granting of a CPCN for the construction and operation of the DES were not “new ground”, as
referenced in the Reconsideration Application. The Conditions related to assurances of performance of the
“Nexterra Plant” and the wood supply made in the Application and subsequent responses to Information
Requests. The Commission, in issuing Order No. C-1-08 was simply imbedding the commitments, contractual
arrangements and assurances made by DGE into the CPCN.
2. Changed circumstances – recent amendments to the Act require the Commission to consider the British Columbia Energy Objectives
The Commission agrees with this statement; however, the Commission reminds DGE that it did consider the
unique nature of this project, its LEEDS target designation and the project’s alignment with the British Columbia
Energy Objectives and specifically noted in granting the applied-for capital structure and ROE, “in the
Commission’s view, the allowed capital structure and ROE should not penalize developments that incorporate
DES” (Decision, Appendix A, p. 8). DGE is also reminded that the Commission did grant a CPCN, as requested,
albeit with Conditions that are related to undertakings and commitments detailed in the Application.
Nevertheless, the Commission acknowledges that the Conditions may, to some extent, create an entry barrier for
innovative technology by increasing the financial risk to DGE employing such technology relative to
conventional energy systems. As this outcome would appear to be inconsistent with the BC Energy Objectives,
the Commission concludes that it needs to reconsider the Conditions in the Order.
The Commission will, therefore, consider DGE’s reasons with respect to why the Conditions should be deleted
from the Order.
![Page 378: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/378.jpg)
APPENDIX A to Order No. C-3-08
Page 10 of 11
4.3 Commission Reconsideration of Conditions
With respect to DGE’s comment above that “[t]he Conditions impose an unnecessary and unfair burden on DGE
that frustrates the attempt to develop an innovative and environmentally-desirable approach to energy supply in an
urban setting”, the Commission reminds DGE of its own assertion that “the BCUC mandate under section 59 of
the Act is to balance the interests of the utility as owner and the interests of the ratepayers as service users”
(Reconsideration Exhibit B-1, p. 4). DGE states further “[t]he ratepayers interest is to receive safe and reliable
service under terms and rates that are just and reasonable” (Reconsideration Exhibit B-1, p. 4). That is, although
the Commission must consider the BC Energy Objectives when reviewing a CPCN Application, it is not clear that
the Commission is expected to approve an alternative that put at risk the provision of safe, reliable service under
terms and rates that are just and reasonable.
In explaining why the Conditions should be deleted from the Order, DGE states that the meaning of
“extraordinary” and “incremental” in the Conditions is unclear in the context in which those terms are used in
each condition (Reconsideration Exhibit B-1, p. 3). DGE also states that it “presumes the Conditions are
intended to protect the DGE ratepayers from extraordinary costs that DGE may encounter. DGE submits that it is
unnecessary and, in fact, punitive for the Commission to prejudge future circumstances by deciding now that
DGE must bear those extraordinary costs whatever the circumstances may be. The ambiguity in the Conditions
will require DGE to return to the Commission in any event to verify that it is applying the Conditions correctly.
The public interest would be better served by reviewing the relevant circumstances at the time the event occurs
before making a judgment about how extraordinary incremental costs should be recovered” (Reconsideration
Exhibit B-1, p. 6). The Commission accepts that the wording of the Conditions does not provide an explicit
formula and that a Commission review would likely be needed to determine an amount to be disallowed under the
Conditions.
DGE further states “DGE is a regulated public utility under the Act. The Commission has comprehensive
regulatory powers over DGE to protect customers and the public interest. If DGE incurs extraordinary
incremental costs, then the Commission has the authority to review the prudence of those costs before DGE may
include them in rates it will charge its customers” (Reconsideration Exhibit B-1, p. 6).
The Commission is persuaded by the argument that the interests of both the ratepayers and the utility will be
properly served by removing the Conditions and instead, as DGE suggests, “reviewing the relevant circumstances
at the time the event occurs before making a judgement about how extraordinary incremental costs should be
recovered” (Reconsideration Exhibit B-1, p. 6). As noted above, DGE states it “is a regulated public utility under
![Page 379: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/379.jpg)
APPENDIX A to Order No. C-3-08
Page 11 of 11
the Act. The Commission has comprehensive regulatory powers over DGE to protect customers and the public
interest. If DGE incurs extraordinary incremental costs, then the Commission has the authority to review the
prudence of those costs before DGE may include them in the rates it will charge its customers.” The CPCN
Application and evidence is very specific about the commitments, contractual arrangements, and assurances made
by DGE to mitigate risk and this should prove to be a useful reference for both DGE and the Commission when
assessing the prudency of costs before including them in rates. The extent to which the Dockside Green
disclosure statement explicitly discusses responsibility for incremental costs related to the thermal energy
generation system and fuel supply may also provide a useful reference when considering incremental costs. The
Commission is satisfied that this approach will afford DGE the opportunity to demonstrate the prudence of its
actions and at the same time address the interests of the ratepayers as service users. Furthermore, the Commission
expects that the levelized rate methodology approved for Dockside Green should have the effect of muting the
impact of incremental costs on ratepayers. That is, extraordinary incremental costs may result in the rates
established under the levelized rate methodology continuing in effect for a longer period of time.
4.4 Commission Determination
The Commission grants a CPCN to DGE for the construction and operation of a DES to provide hydronic
energy service at Dockside Green as set out in the Decision, with conditions removed.
The Commission has reviewed Sections 2 through 11 in the Order in the context of the above Determination and
finds no reason to change those Sections with the exception that Section 2 is not required and Section 11 must be
changed as it relates to the above Commission Determination.
![Page 380: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/380.jpg)
![Page 381: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/381.jpg)
![Page 382: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/382.jpg)
![Page 383: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/383.jpg)
![Page 384: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/384.jpg)
![Page 385: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/385.jpg)
![Page 386: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/386.jpg)
![Page 387: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/387.jpg)
![Page 388: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/388.jpg)
![Page 389: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/389.jpg)
![Page 390: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/390.jpg)
![Page 391: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/391.jpg)
![Page 392: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/392.jpg)
IN THE MATTER OF
TERASEN GAS INC.
BIOMETHANE APPLICATION
DECISION
December 14, 2010
BEFORE:
D.A. Cote, Panel Chair/Commissioner A.A. Rhodes, Commissioner L.A. O’Hara, Commissioner
![Page 393: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/393.jpg)
TABLE OF CONTENTS
Page No.
1.0 EXECUTIVE SUMMARY ............................................................................................................. 1
2.0 INTRODUCTION ....................................................................................................................... 4
2.1 Application .......................................................................................................................... 4
2.2 Orders Sought ..................................................................................................................... 5
2.3 Regulatory Process .............................................................................................................. 6
3.0 PROJECT DESCRIPTION ............................................................................................................. 9
3.1 Overview ............................................................................................................................. 9
3.1.1 Supply of Biomethane ........................................................................................... 10
3.1.2 Sale of Biomethane to Customers ........................................................................ 10
3.1.3 Cost Allocation and Recovery ............................................................................... 11
3.1.4 Notional Delivery .................................................................................................. 13
3.2 Outline of Projects ............................................................................................................ 13
3.2.1 Catalyst Project ..................................................................................................... 13
3.2.2 CSRD Project ......................................................................................................... 15
3.3 Criteria for Future Projects ............................................................................................... 17
3.3.1 Guiding Principles for Development of Biomethane Supply ................................ 17
3.3.2 Maximum Biomethane Cost ................................................................................. 18
3.3.2.1 BC Hydro’s RIB Tier 2 Rate ...................................................................... 19
3.3.2.2 Alternatives Considered for Economic Test ........................................... 20
3.3.3 Regulatory Review of New Supply Projects and Contracts .................................. 21
3.3.4 Post Implementation Review ................................................................................ 22
3.4 Pricing Methodology ......................................................................................................... 22
4.0 KEY ISSUES AND DETERMINATIONS ....................................................................................... 24
4.1 Introduction ...................................................................................................................... 24
4.2 Alignment with British Columbia’s Energy Objectives and Provincial Government Policy ............................................................................. 24
4.4 Product Demand ............................................................................................................... 30
4.5 Commission Determination on the Projects ..................................................................... 34
![Page 394: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/394.jpg)
TABLE OF CONTENTS
Page No.
4.6 Terasen’s Role in Biogas Upgrading Process .................................................................... 35
4.7 Criteria for Future Projects ............................................................................................... 39
4.8 Risk of Stranded Assets ..................................................................................................... 43
4.9 Principles for Cost Recovery ............................................................................................. 45
4.9.1 Rate Setting ........................................................................................................... 45
4.9.2 General Cost Recovery Principles ......................................................................... 46
4.9.3 Determination of Costs Related to System Changes ............................................ 48
4.9.4 Costs to be Allocated to all Customers ................................................................. 48
4.9.5 Costs to be Allocated to Biomethane Program Customers .................................. 49
4.9.6 Intervener Submissions......................................................................................... 50
4.10 Other Project Risks ............................................................................................................ 52
4.10.1 Risk to Gas Supply Portfolio .................................................................................. 52
4.10.2 Risk of Failure to Supply Biomethane ................................................................... 53
4.10.3 Operational and System Risk ................................................................................ 54
4.10.4 Facilities Cost Risk ................................................................................................. 54
4.11 Post Implementation Review and Reporting .................................................................... 55
5.0 OTHER APPROVALS REQUESTED ............................................................................................ 58
5.1 Biomethane Variance Account ......................................................................................... 58
5.2 Rate Schedules .................................................................................................................. 59
6.0 OTHER COMMISSION PANEL CONSIDERATIONS ..................................................................... 62
7.0 SUMMARY OF DIRECTIVES ..................................................................................................... 64
COMMISSION ORDER G‐194‐10
APPENDICES APPENDIX A Orders Sought APPENDIX B The Regulatory Process APPENDIX C List of Exhibits APPENDIX D List of Acronyms Appendix E Sections of Utilities Commission Act
![Page 395: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/395.jpg)
1
1.0 EXECUTIVE SUMMARY
On June 8, 2010 Terasen Gas Inc. filed an Application for approval of what it describes as an end‐to‐
end business model encompassing the purchase of biogas and/or Biomethane for sale to its
customers. The Application was filed against the backdrop of the continued evolution of British
Columbia’s energy policy. The most recent addition, The Clean Energy Act, received Royal Assent
on June 3, 2010 and, in the view of the Applicant, has given renewed and heightened importance
to its role in the development of renewable resources, the reduction of GHG emissions, the
reduction of waste through the use of biogas and biomass as well as its role in promoting energy
efficiency. Further, Terasen has noted that federal, provincial, regional and municipal governments
have all become increasingly focused on climate change and the impact of pollution and have
adopted policies to favor renewable energy forms as key to solving environmental challenges.
Terasen Gas is developing a number of initiatives which it believes are aligned with BC Government
Policy and the Clean Energy Act. These are outlined in its 2010 Long Term Resource Plan that is
currently before the British Columbia Utilities Commission. The Biomethane Service Offering
Application is the first of these initiatives that has come before the Commission. This Application is
made up of three components:
• The Biomethane Supply Model which addresses the acquisition of a reliable supply of
biogas.
• The Biomethane product offering which consists primarily of a rate offering allowing for
the notional sale of Biomethane to Terasen customers on a voluntary basis.
• The cost allocation and recovery model addressing the recovery of costs for the product
offering from the various customer groups.
This Biomethane Service Offering which includes all elements of the biomass model has been
referred to as the Biomethane Program or Program within this Decision. Terasen’s Application
seeks approval of a number of Orders encompassing rates, cost recovery, supply and post
implementation review which are related to the Program. Key among these are the following:
![Page 396: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/396.jpg)
2
approval of two projects, the Catalyst Project in Abbotsford, BC and the Columbia Shuswap
Regional District Project in Salmon Arm, BC; the allocation of costs between all non by‐pass
customers and voluntary Biomethane gas purchasing customers and a set of criteria allowing for
the filing of future supply contracts.
In its review of the Application, the Commission Panel raised and examined a number of issues in
reaching the determinations made in this Decision. The first group of these includes the following:
the alignment with British Columbia’s energy objectives and Provincial Government policy, the
adequacy of supply for these and future Projects and the level of customer demand for this type of
program. On the basis of this examination, the Panel is satisfied the Program is in alignment with
both British Columbia’s energy objectives and Provincial Government policy and there is sufficient
demand and supply to justify moving forward. Accordingly, the Panel has determined the two
Projects are in the public interest and has approved both of them as well as the related capital
costs. However, the Panel in reaching this determination has noted that it would be prudent for
TGI to thoroughly test the proposed model in the marketplace before reaching a conclusion as to
its full market potential.
The second group of issues is related to how the Biomethane Program will work and includes the
following:
• Terasen’s proposed role in the biogas upgrading process;
• The criteria for future projects;
• The risk of stranded assets and other project risks;
• Principles for cost allocation and recovery; and
• Post implementation review and reporting.
With respect to Terasen’s proposed role in the upgrading process, the Panel has made no finding
on the acceptability of this and directs that the upgrading business be sufficiently distinct so as to
be severable if the Commission were to determine that this function should be conducted through
a separate entity in the future. Concerning the criteria for future projects to be approved on a
![Page 397: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/397.jpg)
3
streamlined basis, the Panel has added criteria limiting the total production of Biomethane for all
projects to 250,000 GJ per year during the test period and set a maximum commodity price at
$15.28 per GJ. In addition, the Panel has approved the cost allocation methodology as proposed by
Terasen as reasonable and in the public interest. Finally, the Commission Panel directed the post
implementation review and reporting period be reduced from the requested five years to two
years.
In this Decision, the Commission Panel has allowed Terasen Gas to move forward with a
Biomethane Program on a test basis for a two year period. In introducing limitations on scope and
a term for the test, the Panel believes that Terasen will learn valuable lessons which can be applied
to the development of a model which will sustain the Program over the long term. It believes that
taking this approach is prudent and in the best interests of TGI ratepayers.
![Page 398: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/398.jpg)
4
2.0 INTRODUCTION
This Application is submitted by Terasen Gas Inc. (Terasen, Terasen Gas, TGI or the Company) for
approval to introduce an end‐to‐end business model for the acquisition of a Biomethane gas supply
and the sale of this renewable energy to its customers.
2.1 Application
TGI and its affiliated companies sell and deliver natural gas to residential, commercial and industrial
customers throughout British Columbia (BC). They provide service to 940,000 customers and which
represents over 95 percent of gas users in the Province. Their operations are subject to regulation
by the British Columbia Utilities Commission (Commission, BCUC).
By Application dated June 8, 2010 Terasen applied for approval of a Biomethane Service Offering
and Supporting Business Model, for approval of a Salmon Arm Biomethane Project and for one in
the Abbotsford area (the Application). Terasen Gas proposes to develop an initial supply of
Biomethane from two projects:
• a farm in Abbotsford, BC where a project partner will collect agricultural waste and use anaerobic digestion and upgrading technology to develop Biomethane which will be delivered to Terasen for injection into the distribution system (the Catalyst Project); and
• a landfill project in Salmon Arm, BC where raw biogas will be produced in a landfill by a project partner and then upgraded to pipeline quality Biomethane by Terasen (the CSRD Project, or the Salmon Arm Project).
Biogas is a gas substantially composed of methane that is produced by the breakdown of organic
matter (biomass) in the absence of oxygen. Biomethane is renewable energy and refers to biogas
that has been upgraded to primarily methane by the removal of other constituents, so that it is
safely interchangeable with natural gas in the distribution and transmission system. (Exhibit B‐1,
p. 7)
![Page 399: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/399.jpg)
5
The end‐to‐end business model for a Biomethane program proposed by Terasen in the Application
has three parts encompassing models for the acquisition of a supply of biogas, the sale of
Biomethane to its customers and the allocation and recovery of costs.
Terasen states that market research suggests there is a strong desire on the part of customers to
purchase renewable clean energy. It further states that the data presented in the Application
supports the position that demand for the product will exceed the capability of the initial projects
to supply it. This has resulted in Terasen proposing a phased approach which it states is both
flexible and scalable allowing supply and demand to be balanced. (Exhibit B‐1, pp. 1‐3) Worthy of
note is a letter from the Assistant Deputy Minister of Energy, Mines and Petroleum Resources,
expressing the government’s support for the Biomethane Service Offering. In it he states that:
“[t]he objectives of this proposal align with the policy actions of the BC Energy Plan, the BC Bioenergy Strategy and the British Columbia energy objectives of the Clean Energy Act (the Act), particularly the objectives in section 2(g) “to reduce greenhouse gas emissions” and section 2(j) “to reduce waste by encouraging the use of waste heat, biogas and biomass.” (Exhibit E‐1)
2.2 Orders Sought
TGI seeks Commission approval of a number of orders pursuant to the Utilities Commission Act
R.S.B.C. 1996 c. 473 (the Act, UCA). Listed in their entirety in Appendix A to this Decision, they
include the approval of rate related orders, cost recovery related orders for both voluntary
participant customers and all non‐bypass customers, supply project related orders and post
implementation review orders.
![Page 400: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/400.jpg)
6
2.3 Regulatory Process
The Regulatory Process is described in detail in Appendix B. Nine organizations registered as
Interveners for the Application. They are as follows:
• Catalyst Power Inc.
• BC ARD Corporation
• BC Bioenergy Network
• British Columbia Power and Hydro Authority (BC Hydro)
• British Columbia Old Age Pensioners’ Organization et al (BCOAPO)
• Elemental Energy Inc.
• Commercial Energy Consumers Association of British Columbia (CEC)
• BC Sustainable Energy Association (BCSEA)
• BP Canada Energy Company
Among these the BCOAPO, CEC, BC Hydro and BCSEA actively participated in some or all of the
Processes.
2.4 Context and Key Issues
TGI is seeking approval for the introduction of an end‐to‐end business model encompassing the
acquisition of a supply of Biomethane and the sale of this renewable energy to its customers. As a
starting point, Terasen has proposed that the supply of Biomethane be developed from two initial
projects which were broadly described earlier in Section 2.1. These projects represent two
different approaches to securing raw biogas and then upgrading it to allow it to be injected into the
natural gas pipeline system. The first of these projects, the Catalyst Project, represents the
traditional supply side management process for Terasen where the product has been purchased in
its final form. The second, the CSRD Project, represents a significant departure from this as Terasen
![Page 401: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/401.jpg)
7
moves up the supply chain to provide the biogas upgrading service role. The Catalyst Project and
the CSRD Project will be collectively referred to as “the Projects”, in this Decision. The Biomethane
Service Offering including all elements of the business model will be referred to as the Biomethane
Program or Program.
A significant part of the Application is centered upon an examination and justification of the
Projects and the resale of Biomethane from them. However, the Application goes much further in
that it proposes a model which the Company will use as a basis for development of a broader
Biomethane product offering in the future. Included in the model are the following:
• A set of future project selection criteria which, when satisfied, will allow for a streamlined regulatory process.
• A departure from the traditional supply side management processes utilized by Terasen.
• A set of principles governing the allocation of costs and their recovery from ratepayers.
It is further proposed that this model be reviewed through a post implementation report and
workshop, which is contemplated to occur five years following the launch of the initial project.
Given the potential size and scope of the initiative being proposed by Terasen, the Commission
Panel needs to consider issues far beyond those needed to reach a determination on the Projects.
In reaching its Decision, the Panel also needs to consider the impact of the alternative positions it
may take on the issues arising and assess the suitability of the model and whether changes are
necessary to protect the public interest in the period which lies ahead. In what follows, the Panel
will provide an outline of the Program before examining each of the key issues it believes to be
important in reaching a determination as to whether the Application is to be accepted and whether
changes to the proposed model are required. Accordingly, following a description of the key
elements of the Program, the Panel will initially examine the following issues:
• How the Program aligns with British Columbia energy objectives and Policy;
![Page 402: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/402.jpg)
8
• The adequacy of supply of biogas;
• The level of customer demand for the Projects and others like them.
The Panel will then examine some of the broader issues related to the model including:
• Terasen’s proposed role in the biogas upgrading process;
• The criteria for future projects;
• The risk of stranded assets and other project risks;
• Principles for cost allocation and recovery; and
• Post implementation review and reporting.
![Page 403: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/403.jpg)
9
3.0 PROJECT DESCRIPTION
3.1 Overview
The Clean Energy Act, S.B.C. 2010 c. 22 (CEA) received Royal Assent on June 3, 2010. In Terasen’s
view it has given a renewed and heightened importance to its role in developing renewable
resources, reducing GHG emissions, reducing waste by using biogas and biomass as well as
promoting energy efficiency. The Commission Panel considers the following British Columbia
energy objectives included in section 2 of the CEA are germane to the Application:
(d) to use and foster the development in British Columbia of innovative technologies that support energy conservation and efficiency and the use of clean or renewable resources;
(g) to reduce BC greenhouse gas emissions
(i) by 2010 and for each subsequent calendar year to at least 6 percent less than the level of those emissions in 2007….;
(h) to encourage the switching from one kind of energy source or use to another that decreases greenhouse gas emissions in British Columbia;
(j) to reduce waste by encouraging the use of waste heat, biogas and biomass.
In addition, federal, provincial, regional, and municipal governments are increasingly focused on
climate change and pollution, adopting policies in favour of renewable forms of energy as a key
part of the solution to environmental challenges. The Provincial Government has also explicitly
stated its support for biogas project development in the 2008 Bioenergy Strategy document.
(Exhibit B‐1, Appendix B‐7, p. 8) Moreover, Terasen notes that many of the logical partners in the
development of Biomethane projects are municipalities or regional districts because landfills and
sewage treatment facilities owned and/or operated by them are often excellent sources of raw
biogas. Terasen Gas submits the capture of biogas, and its upgrading to pipeline quality
Biomethane, can help local governments generate revenue and meet the municipal GHG emission
targets by way of the beneficial use of waste methane rather than flaring it. (Exhibit B‐1, p. 27)
![Page 404: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/404.jpg)
10
The end‐to‐end business model proposed by the Company is made up of the three components
listed below and described subsequently in more detail:
• The Biomethane supply model ‐ which addresses the logistics of acquiring a reliable supply of biogas, safely and reliably upgrading it to Biomethane and injecting it into TGI’s distribution system;
• The model for offering Biomethane product to customers ‐ which consists primarily of the formulation of a rate offering to allow the notional sale of Biomethane to those Terasen customers who are willing to pay a premium price for this product; and
• The cost allocation and recovery model ‐ which addresses the related cost recovery of this product offering from various customer groups. (Exhibit B‐1, p. 2)
3.1.1 Supply of Biomethane
Terasen states that its partners will be responsible for the collection of raw material and the
facilities required for production of biogas. However, for the process to upgrade biogas into
Biomethane TGI has introduced two models. In the first model, Terasen will negotiate a
contractual relationship to purchase upgraded Biomethane from project partners, providing these
independent operators can meet Terasen’s financial and technical standards. In the second,
Terasen’s preferred model, it will own and operate the upgrading facilities “to ensure reliability,
safety and the continuous flow of product from the Biomethane supply project to the customer.”
In all cases, Terasen proposes to retain control of the interconnection facilities to control the
injection of Biomethane into the distribution system. (Exhibit B‐1, p. 2)
3.1.2 Sale of Biomethane to Customers
Based on its market research, Terasen believes its customers have a “significant interest in
purchasing Biomethane from Terasen Gas as an environmentally superior option to conventional
natural gas.”
![Page 405: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/405.jpg)
11
Terasen proposes to take a phased approach to launch this program in recognition of the limited
availability of Biomethane at this time. The first phase of the Biomethane product offering (the
Offering) will involve making a blended Biomethane product available to residential customers
starting with a blend of 10 percent Biomethane and 90 percent conventional natural gas. Phase
two will involve launching the same 10 percent blend for small and large commercial customers on
January 1, 2012. Terasen also plans to sell Biomethane to on‐system transport customers and off‐
system wholesale customers. Eventually, Terasen’s goal is to expand its offerings as the Program
matures and new supply sources are developed. (Exhibit B‐1, p. 3)
3.1.3 Cost Allocation and Recovery
Terasen Gas states that the Offering will be a premium product and accordingly customers
choosing to participate will have to pay a higher price to reflect the actual higher cost of the
Biomethane. Terasen proposes the following cost allocation and pricing principles for its new end‐
to‐end business model:
• Customers should bear the cost of the energy they choose to consume. Therefore, Terasen intends to aggregate the biogas acquisition and upgrading costs and proposes to recover them as a commodity cost for Biomethane from those customers who opt for the Program. In those cases where Terasen buys the upgraded Biomethane from an independent operator that cost would be included as a commodity cost.
• Costs associated with making the Biomethane service offering available to all customers should be borne by all non‐bypass customers. Terasen envisages these costs to include quality monitoring, IT upgrades, program management and customer education with some marketing involved.
(Exhibit B‐1, p. 3)
![Page 406: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/406.jpg)
12
The Biomethane Service Offering Model is depicted for the reader’s benefit in the diagram below.1
1 Diagram was created from information in Exhibit B‐1
![Page 407: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/407.jpg)
13
3.1.4 Notional Delivery
Terasen Gas proposes what it describes as a “notional delivery” of Biomethane. The Company
explains that “notional delivery” is a concept used in the trading of commodities, where delivery is
notional rather than real. Terasen is of the view that the interchangeability of Biomethane with
conventional natural gas allows for this concept to be used in the Application, as the end user will
not be able to differentiate between the products. Terasen draws the analogy between the
residential Customer Choice Program where gas marketers are responsible for delivery of natural
gas to the system, but their particular customers may not actually receive those molecules of
natural gas, as individual molecules are not tracked. (Exhibit B‐1, p. 15)
The Commission Panel has some concern about the applicability of notional delivery to the
Offering. The Application is premised on the fact that Biomethane is a different product than
natural gas with different carbon properties. Terasen is asking customers to agree to pay a
premium for a different and arguably superior product which the customer may or may not
receive. It is important that Terasen be able to communicate this distinction as part of its
marketing program so there is no misunderstanding on the part of the consumer.
3.2 Outline of Projects
TGI has included two supply projects in the Application for the Commission’s consideration. They
represent concrete examples of the two supply models described earlier. The Projects are
described in more detail below.
3.2.1 Catalyst Project
The first project brought forward by Terasen is an agricultural waste to Biomethane project located
in Abbotsford, BC. The project partner is Catalyst Power Incorporated (Catalyst). In this project,
which represents the first supply model, Terasen is purchasing upgraded Biomethane with a
relatively small capital investment required only in distribution main and interconnection facilities.
![Page 408: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/408.jpg)
14
Highlights of this Project and key provisions of the supply agreement are summarized as follows:
Highlights of the Project:
• Catalyst investment in the digestion, gas collection and upgrade technology:
$ 5 Million; and
• Terasen investment as shown below:
Table 3‐1: Capital Cost Summary
Source: Exhibit B‐1, p. 100 The injected Biomethane is forecast to displace the quantity of natural gas required to serve more
than 875 households annually, based on Lower Mainland typical household demand of 95 GJ per
year, and thus reduce GHG emissions by at least 4,000 tonnes annually based on the minimum
projected supply. Assuming a 10 percent blend, this converts to 8,750 customers. The range of
expected annual GHG emissions associated with the Catalyst Agreement is shown below.
Table 3-2: Annual CO2e reduction
Source: Exhibit B‐1, p. 101
![Page 409: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/409.jpg)
15
Key provisions of the Catalyst supply agreement:
• Quantity: Minimum annual delivery of 84,000 GJ;
• Term: 10 years;
• Price: As negotiated with Catalyst, falls within the range of expectations;
• Quality: Terasen Gas quality specifications; and
• Other: The non‐performance definition and excuse from non‐performance for maintenance in the agreement strike a balance between committing both Catalyst and Terasen to deliver and accept pipeline quality Biomethane and allow both companies sufficient flexibility to solve minor operational issues which may arise.
A number of measures have been incorporated into both the agreement and the facilities
themselves to mitigate a range of potential risks. These risks are further addressed in Sections 4.7
and 4.9.
Terasen states that Catalyst has conducted significant public consultation in its efforts to get the
necessary agriculture and land use approvals in place to allow the construction and operation of an
anaerobic digester and biogas upgrading system on the site. (Exhibit B‐1, pp. 94‐105)
3.2.2 CSRD Project
This biogas project will be located at the regional landfill within the city limits of Salmon Arm, BC.
The project partner is the Columbia Shuswap Regional District. Terasen states that in this case it
will be purchasing raw biogas and investing in upgrading equipment along with the distribution
main and interconnection facilities, which include gas quality monitoring, pressure regulation and
odorizing. Highlights of the proposed project and key provisions of the supply agreement are
summarized as follows:
![Page 410: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/410.jpg)
16
Highlights of the Project:
• CSRD investment in the landfill gas capture, collection and flare system: $ 4.8 Million
• Terasen Gas investment in upgrading and interconnection facilities as shown below.
Table 3‐3: Capital Cost Summary
Source: Exhibit B‐1, p. 89 It should also be noted that in this Project funding from the provincial government’s Innovative
Clean Energy (ICE) fund and the BC Bioenergy Network (BCBN) of some $500,000 will reduce the
Terasen capital expenditure to $ 1.8 Million.
The injected Biomethane will displace the quantity of natural gas required to serve more than 300
households annually, based on North Okanagan typical annual household demand of 100 GJ, and
thus reduce GHGs by approximately 1,500 tonnes per annum as shown in the Table below.
Table 3-4: Annual CO2e reduction
Source: Exhibit B‐1, p. 91
![Page 411: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/411.jpg)
17
Key provisions of the supply agreement:
• Quantity: 30,000 GJ per annum;
• Term: 15 years, with a yearly automatic renewal after the first 15 years;
• Price: As negotiated with CSRD, falls within the range proposed as an economic test for future projects;
• Quality: a raw gas quality specification; and
• Other: CSRD is required to make commercially reasonable efforts to maintain equipment and supply the best quality gas possible.
Again, a number of measures have been incorporated into both the agreement and the facilities to
mitigate a potential supply risk, operational risks and risk of stranded assets. These are addressed
in further detail in Sections 4.7 and 4.9.
Finally, Terasen states the CSRD has indicated that there are no outstanding claims or concerns in
the planned project area. (Exhibit B‐1, pp. 83‐94)
3.3 Criteria for Future Projects
One of the numerous approvals Terasen is seeking is an order that future supply contracts for the
purchase of biogas or Biomethane which meet the criteria described in the Application meet the
filing requirements in sections 71(1)(a) and 71(1)(b) of the UCA. It states that an early adoption of
this framework will facilitate growth of the supply industry “by establishing clear and achievable
parameters for our potential supply partners.” This Section addresses the criteria which have been
proposed.
3.3.1 Guiding Principles for Development of Biomethane Supply
TGI intends to apply the following guiding principles to the development of future Biomethane
supply:
![Page 412: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/412.jpg)
18
a) Project Economics: A cost of service (COS) model will be used to evaluate the attractiveness of projects, with the estimated capital and operating costs borne by Terasen and the estimated production costs of Biomethane as key inputs. Each project will be evaluated against a COS threshold that will represent the maximum cost of Biomethane delivered to the Terasen system.
b) Gas‐Processing Technology: Terasen will use proven technology to ensure reliability and safety with technology being evaluated on the basis of cost, output gas purity and gas recovery.
c) Working with biogas Project Proponents: Terasen will work with project proponents to mitigate project risks.
d) Cost Recovery: Terasen will capture all capital and operating costs associated with the supply projects, including regulated return on capital investments in an aggregated Biomethane cost of gas calculation that will be recovered from customers participating in the Biomethane Program.
e) Gas Quality: Biomethane that is injected into the system must meet minimum Terasen gas quality specifications.
f) Injection Location: Terasen will evaluate all projects on a case‐by‐case basis to ensure that the injection location has sufficient local demand to utilize Biomethane.
g) Contract Length: Long term contracts, preferably ten years or more to allow for a stable supply and a reasonable capital depreciation period.
h) Project Design for Mobility: Terasen will engineer facilities in order to minimize the risk of stranded assets.
i) Investment Arrangement: Terasen’s preferred model is to invest in upgrading equipment to retain maximum control of gas quality and safety. It will invest in sufficient equipment to ensure that quality and safety specifications are met and that there is a means of stopping Biomethane supply on short notice. In all cases, Terasen will reserve the right to refuse gas if customer safety or asset integrity is at stake.
(Exhibit B‐1, pp. 74‐76)
3.3.2 Maximum Biomethane Cost
Terasen proposes to apply a maximum cost as a screen for the supply of Biomethane. This will
ensure it has adequate flexibility in developing new sources of supply while protecting Biomethane
![Page 413: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/413.jpg)
19
customers from undue rate increases. Further, Terasen notes BC Hydro’s entrance into the biogas
market by way of the Call for Community Biomass Energy projects. TGI states that “a given
maximum rate for Biomethane helps create a better understanding for potential biogas producers
of the relative economic benefits of using their biogas for upgrading to Biomethane vs. combustion
to create electricity to sell to BC Hydro.” (Exhibit B‐1, p. 76)
TGI approach to determining the maximum Biomethane cost is addressed below.
3.3.2.1 BC Hydro’s RIB Tier 2 Rate
Terasen Gas states that because there are no available external benchmarks specific to Biomethane
the price of new British Columbia based electricity supply, a competing clean energy source,
provides an appropriate initial reference point or proxy for Biomethane pricing until the market is
better developed. By Order G‐124‐08 the Commission directed BC Hydro to establish the
Residential Inclining Block (RIB) Tier 2 rate at BC Hydro’s cost of new supply at the plant gate,
grossed up for losses. Terasen states that because this rate is linked to the cost of new clean
electricity supply, it is an appropriate price cap for Biomethane after adjusting for thermal
efficiency and allowances for its distribution costs. Accordingly, Terasen proposes that, until such
time as an alternative market‐based mechanism becomes known, it will seek to develop
Biomethane projects at a maximum unit cost based on the following calculation:
Table 3‐5: Proposed maximum Unit Cost
Source: Exhibit B‐1, p. 77
![Page 414: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/414.jpg)
20
Should this formula be accepted, Terasen plans to use a maximum unit cost of $15.280 per GJ as
“the default financial litmus test for the time being.” In Terasen’s rate structure this price would be
comparable to the commodity price for conventional natural gas. Finally, Terasen proposes to
adjust the maximum forecast rate to reflect the unit cost changes in the various components
included in the calculation. (Exhibit B‐1, pp. 76‐77)
3.3.2.2 Alternatives Considered for Economic Test
In developing its proposed economic test, TGI considered and rejected five alternative
methodologies as follows:
• BC Hydro Clean Energy Rate:
• $0.13 per kWh (Clean Energy call) which, using the above conversion formula, translates into a comparative price for Biomethane of $25.83 per GJ. Terasen notes that while Biomethane costs will be streamed directly to Terasen customers, the higher clean electricity costs will be mixed into a large pool of lower‐cost electricity to BC Hydro customers to form the RIB Tier 2 rate. As a result, the Clean Energy Rate would be too expensive and not comparable to the blended electricity rates actually charged to customers. Accordingly, Terasen states that “it must protect its competitive standing” and that due to its transparency, the RIB Tier 2 rate is the superior solution.
• $150 per MWh (Bioenergy Phase 2 Call RFP) which, using the same multiplier of 277.778 kWh per GJ is equivalent to BC Hydro offering $41.667 per GJ of electricity made from raw biogas. Applying again the above conversion formula results in a competitive alternative proxy of $30.83 per GJ of Biomethane delivered to a Terasen customer. For the same reasons stated above, Terasen rejected this alternative. However, Terasen states it “may need to review this rationale as the market for Biomethane develops so as to remain competitive in sourcing biogas and Biomethane in British Columbia.”
• South East False Creek District Energy System (SEFCDES): This option was not pursued because it might be less relevant as the SEFCDES only serves a small, high‐end showcase development neighbourhood in Vancouver. Further, Terasen states that the rate structure is not truly comparable to those of large scale utilities because District Energy System rates could include more services and product offerings than the typical price for services provided by electricity or natural gas utilities.
![Page 415: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/415.jpg)
21
• Dockside Green Energy (DGE): Terasen states that the DGE rate structure, serving one high‐end neighbourhood in Victoria, encompasses a mix of a fixed amount for floor space and a variable amount for energy which is first charged to strata corporations, which then allocate the costs to individual strata unit owners. This in turn makes a direct translation between energy consumption and cost more complex. Accordingly, Terasen also rejected this option.
• Gas Commodity Rate Cap (a multiple of the existing natural gas commodity rate to set a fixed percentage premium): Terasen also eliminated this methodology because there is no apparent relationship between factors driving natural gas market prices and the cost of producing Biomethane. Further, Terasen notes as GHG neutral Biomethane is a fundamentally different product than conventional natural gas, therefore “imposing a pricing relationship between the two would be difficult to justify.”
• No Cap: Terasen states that because the Biomethane service offering is fully optional for customers who may leave it at any time, setting no price cap “would be consistent with market‐based economic principles of determining the price and therefore the availability of a product as being whatever the market may bear.” Ultimately, however, Terasen decided that, given the lack of customer experience with this type of offering, and given that this is only the first phase of a multi‐phase product roll‐out, there should be a price ceiling for the product to build up both the level of customer comfort and education until the market is more mature.
(Exhibit B‐1, pp. 76‐80)
3.3.3 Regulatory Review of New Supply Projects and Contracts
For future biogas or Biomethane supply contracts TGI proposes a streamlined process in which it
will only file the supply contract for acceptance under section 71 of the UCA, with no additional
information. Terasen would choose not to apply for approval of expenditures pursuant to section
44.2 of the UCA. Terasen proposes the following criteria for this streamlined process:
1. The projected supply meets the proposed economic test with the maximum price for delivered Biomethane re‐calculated from time to time based on updates to the BC Hydro RIB Tier 2 rate;
2. The supply contract is at least ten years in length;
3. Terasen has, by agreement, retained final control over the injection location;
4. Terasen is satisfied that the upgrade technology is sufficiently proven;
![Page 416: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/416.jpg)
22
5. Terasen has, by agreement, reserved the right to refuse gas if customer safety or asset integrity is at stake; and
6. The partner is a municipality, regional district or other public authority, or is a private party with a track record in dealings with Terasen or that posts security to reduce the risk of stranding.
(Exhibit B‐1, p. 80)
3.3.4 Post Implementation Review
Terasen states that in requesting approval for streamlining the development of future Supply and
Tariff Offerings, it acknowledges a requirement for a thorough review of the Biomethane Program’s
success in the future. Terasen proposes that the review be conducted through a Post
Implementation report and workshop, both occurring five years after the launch date of the
residential Biomethane Program.
Terasen further states that this timeline should allow it adequate time to validate its research into
residential and commercial markets, and to develop additional supply projects to help this industry
to mature. In the meantime, Terasen proposes to report on the developments of this new program
through its revenue requirement applications related to the end‐to‐end business model and report
the Biomethane gas cost as a part of the quarterly gas cost reporting established with the
Commission. (Exhibit B‐1, p. 81)
3.4 Pricing Methodology
Terasen notes that the Biomethane gas which is sold to customers is expected to be more
expensive than conventional natural gas for the foreseeable future. As outlined in Section 3.1.3 of
this Decision, Terasen has, based upon a set of principles, developed a methodology for allocating
certain costs to all TGI customers and others specifically to Biomethane Program customers who
have voluntarily signed up for the offering.
![Page 417: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/417.jpg)
23
For all non‐bypass customers Terasen is proposing setting up non‐rate base deferral accounts to
capture costs incurred which are applicable to this group for the period prior to January 1, 2012
(encompassing the remainder of the 2010‐2011 revenue requirements period). Following this it
proposes to recover the costs from the non‐bypass customer group through their amortization
over the ensuing three year period. Based on projections, the impact on non‐bypass customers
from 2012 to 2019 varies from $0.004 to $0.006 per GJ with a levelized rate impact of $0.004 per
GJ. Terasen calculates the incremental revenue requirements over this period to be $4,084,100
resulting in an annual incremental cost of 38 cents for a customer using 95 GJ per year. (Exhibit B‐1,
pp. 107‐111)
TGI states that the Biomethane costs will be recovered from the voluntary group of Biomethane
Program customers through a Biomethane Energy Recovery Charge (BERC). To capture any
variance between forecasted BERC and actual costs, TGI seeks Commission approval for a further
deferral account. The Company has calculated the initial BERC to be $9.904 GJ and has requested
this amount be effective October 1, 2010. This will apply to 10 percent of the total gas used (the
Biomethane portion) and will be adjusted annually based on deferral account balances. Customers
choosing this option will do so under Rate Schedule 1B which has been applied for in this
Application. (Exhibit B‐1, pp. 112 ‐118)
![Page 418: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/418.jpg)
24
4.0 KEY ISSUES AND DETERMINATIONS
4.1 Introduction
Having laid out the key attributes and a framework for the Program in Section 3.0, we will now
examine the issues related to the Application. We will begin by examining the key elements of the
Application in terms of its alignment with British Columbia’s energy objectives and Provincial
Government policy and continue with a discussion of the adequacy of supply and related demand
issues. This will demonstrate that in the Panel’s view there is justification for proceeding, at a
minimum, with the Projects. Additionally, our examination will provide a basis upon which to
discuss issues related to how to most effectively roll out the Program and protect the public
interest. These include the criteria for future projects, the risk of stranded assets, principles for
cost recovery, other project risks and post implementation review and reporting.
4.2 Alignment with British Columbia’s Energy Objectives and Provincial Government Policy
The Panel finds that the Application is consistent with government policy as outlined in the CEA and
elsewhere.
As noted earlier, section 2 of the CEA, sets out British Columbia’s energy objectives. Relevant
objectives include:
(d) to use and foster the development in British Columbia of innovative technologies that support energy conservation and efficiency and the use of clean or renewable resources;
(g) to reduce BC greenhouse gas emissions;
(i) by 2012 and for each subsequent calendar year to at least 6 percent less than the level of those emissions in 2007;
(h) to encourage the switching from one kind of energy source or use to another that
decreases greenhouse gas emissions in British Columbia;
![Page 419: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/419.jpg)
25
(j) to reduce waste by encouraging the use of waste heat, biogas and biomass.
“Greenhouse gas” is a defined term which means: “any or all of carbon dioxide, methane, nitrous
oxide, hydrofluorocarbons, perfluorcarbons, sulphur hexafluoride and any other substance
prescribed by regulation.” (Greenhouse Gas Reduction Targets Act S.B.C. 2007, c. 42 s. 1)
However, Terasen’s evidence is that Biomethane is greenhouse gas neutral with zero carbon
intensity, making it, in a pure form, greener than the electricity which is consumed in the province.
(Exhibit B‐10, BCUC IR 2.4.1)
The Carbon Tax Act, S.B.C. 2008, c. 40 (CTA) is also relevant. Schedule 1 to the CTA contains a Table
which sets out the rate of tax applicable to various types of fuel, including natural gas. However, by
section 1 of the CTA, neither methanol produced from biomass nor methane produced by waste in
a landfill is considered to be a “fuel” for the purposes of the Table and is therefore arguably not
subject to a carbon tax.
TGI states that it has received confirmation from the British Columbia Ministry of Finance that
Biomethane itself is exempt from the carbon tax but that there is some uncertainty surrounding
the tax treatment of Biomethane blended with natural gas. Terasen is seeking to obtain clarity
from the Ministry on this issue. (Exhibit B‐12, BCSEA IR 2.21.1)
The publication of the British Columbia government entitled “BC Bioenergy Strategy – Growing our
Natural Energy Advantage” provides insight into the process, government policy and the resultant
carbon footprint. Essentially, as noted above, bioenergy is energy which is derived from organic
biomass; biomass being waste material which is often produced from normal daily activities and
includes renewable sources such as manure, municipal waste, sewage and wood debris. When this
biomass is converted to energy, it is considered to be a clean source of energy. This is because gas
which would simply be released into the atmosphere naturally is used to produce energy, in place
of non‐renewable sources, thus reducing the greenhouse gases which would otherwise be released
into the atmosphere.
![Page 420: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/420.jpg)
26
The publication states: “[b]ioenergy is absolutely critical to achieving B.C.’s climate goals and
economic objectives” and the government indicated that its bioenergy strategy would create new
economic opportunities and “establish British Columbia as the hub of a global supply network of
bioenergy resources, technologies and services.”
The Application includes letters of support, including a letter dated April 5, 2010 from the BC
Sustainable Energy Association which states: “[a]ppropriately carried out and regulated, the use of
renewable biogas would cause net reductions in greenhouse gas emissions in BC relative to
business as usual.” As noted previously, the Ministry of Energy, Mines and Petroleum Resources
also supports the Biomethane Program as being in alignment with Provincial policy actions and
objectives.
Section 44.2 (5) of the UCA, requires the Commission to consider a number of matters prior to
accepting an expenditure schedule filed by a public utility under section 44.2. Relevant to this
application are: the applicable of British Columbia’s energy objectives, Terasen’s most recent long
term resource plan filed under section 44.1, if any, and the interests of persons in British Columbia
who receive or may receive service from the public utility.
Applicable British Columbia Energy Objectives
The applicable objectives were set out in detail in Sections 3.1 and 4.2 above.
The Commission Panel is of the view that the process of converting biomass to biogas to usable
Biomethane uses innovative technology, as evidenced by the government’s commitment to its
bioenergy strategy. Biomethane is also considered to be clean and is a renewable resource.
Further, the use of Biomethane in place of natural gas will reduce greenhouse gas emissions, as
explained above, and the Biomethane Program entails the use of biomass and biogas.
![Page 421: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/421.jpg)
27
The Commission Panel also considers the carbon tax to be another clear expression of government
policy aimed at reducing carbon and the fact that Biomethane is not considered subject to the tax
(albeit in a pure form) provides additional support for the Program.
The Commission Panel therefore finds that the Application is consistent with British Columbia’s
energy objectives and Provincial Government energy policy.
TGI’s Most Recent Long Term Resource Plan
Terasen filed a long term resource plan under section 44.1 on June 27, 2008. The long term
resource plan included five year capital plans and statements of facilities expansion, although no
specific approval was requested. The only issues of any contention were carved off and made the
subject of a separate proceeding, being Terasen’s Energy Efficiency and Conservation Application.
The long term resource plan was accepted in its modified form by Commission Order G‐194‐08
dated December 15, 2008.
The Commission Panel sees nothing in Terasen’s long term resource plan which is inconsistent with
the Biomethane Program.
The Interests of Persons in British Columbia who Receive or May Receive Service from Terasen Gas
The Commission Panel considers that allowing customers to opt to select the more expensive
Biomethane product is in the interests of Terasen’s customers at this time, as it will provide
maximum customer choice. In the future, it may be unnecessary to allow for this choice, as the
carbon tax increases and prices of natural gas and Biomethane adjust in accordance with market
forces. A portion of the expenditure will be recovered from all non‐bypass customers and,
considering the relatively small cost of making the Program available, the Commission believes that
it is in the interest of Terasen customers whether or not they choose to participate.
![Page 422: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/422.jpg)
28
4.3 Biogas Supply
To evaluate the merits of the Application, the Commission must determine if there is enough
evidence in this proceeding to forecast that the potential Biomethane supply in TGI’s service area
can support the planned offering. Within the Application, Terasen performs an evaluation and
concludes that the potential Biomethane supply is sufficient. (Exhibit B‐1, p. 66)
In order to estimate the future potential of Biomethane, TGI undertook a four step process that
included: i) quantifying the total amount of bioenergy in BC; ii) identifying and excluding bioenergy
resources not suitable for Biomethane; iii) estimating the range of supply, and iv) developing a
short term supply estimate. This process involved collecting data from sources who have studied
BC’s bioenergy, making reasonable estimates of future events, and engaging potential partners
who have an interest in Biomethane production. (Exhibit B‐1, pp. 62‐65)
Supported by this preliminary estimation, TGI believes there is sufficient raw biogas to produce
enough Biomethane to support its planned offering and estimates Biomethane supply in 10 years
could be in the range of 2.24 to 5.6 Petajoules ( PJ).2 Terasen also noted that there is strong
interest from various potential partners to work with it to develop Biomethane projects within its
service territory. (Exhibit B‐1, p. 66, as amended by Exhibit B‐1‐1)
However, Terasen notes that the sources of the energy and estimated supply of Biomethane are
not well established. It is Terasen Gas’ position that the first four years of the estimate are more
accurate than the long‐term forecast, but both long‐term and short‐term estimates are subject to
some uncertainty. (Exhibit B‐1, p. 65)
A graphic demonstration of Terasen’s estimated availability of Biomethane until 2020 has been
included below:
2 One Petajoule is 106 Gigajoules and Terasen’s total forecast energy consumption for 2011 was 161.8 PJ in the 2010‐2011 Revenue Requirements Application made to the Commission on June 15, 2009.
![Page 423: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/423.jpg)
29
Figure 4‐1: Terasen Gas Forecast for Annual Biomethane Supply (PJ)
Source: Exhibit B‐1, p. 65 as amended by Exhibit B‐1‐1
TGI’s projection of Biomethane supply indicates that initial supplies will be much lower than the
potential supplies reached in 2020. It forecasts Biomethane supplies in 2010 to be 0.05 PJ and to
be in the range of 0.18‐0.23 PJ in 2011. (Exhibit B‐1, p. 65 as amended by Exhibit B‐1‐1) Given that
Biomethane supplies are not yet well established (Exhibit B‐1, p. 65), the Company has proposed
risk‐management techniques to address potential Biomethane supply shortfalls. Terasen suggests
that these techniques, which include limiting program enrollment and reserving the right to
purchase carbon offset credits or remove customers from the program provide the Company with
an additional safety net if needed. (Terasen Final Submission, p. 44)
No Intervener raised concerns regarding matters of Terasen’s Biomethane supply.
![Page 424: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/424.jpg)
30
Commission Determination
The Commission Panel believes that Terasen has reasonably identified potential sources of biogas
in its service area and evaluated the likelihood of Biomethane production. However, this is a new
type of venture and there is little independent evidence to corroborate these estimates. The
Commission Panel is satisfied that Terasen understands this difficulty and related impacts, and has
made reasonable attempts to formulate an estimate given these constraints. The Commission
Panel accepts TGI’s estimate of its potential Biomethane supply and finds this supply to be
sufficient to justify moving forward with the Biomethane Program but the Panel also
acknowledges the limited data available to support this estimate.
As noted, the Commission Panel accepts that there is a risk that the Biomethane supply estimates
may be inaccurate. The Commission Panel further notes that TGI has attempted to mitigate this
risk by proposing policies that allow it to purchase carbon offset credits or limit service in certain
circumstances. The Commission Panel finds that TGI has proposed reasonable techniques to
address the risk of Biomethane shortfalls if short‐term supply estimates are overstated. Further,
the Commission Panel approves TGI’s proposal to purchase carbon offsets and to recover costs
through the Biomethane Variance Account in the event of under‐supply of Biomethane, at a per
gigajoule unit price not to exceed the difference between the Biomethane Energy Recovery
Charge and the Commodity Cost Recovery Charge in effect at that time.
4.4 Product Demand
A fundamental consideration is determining whether there is sufficient demand from the BC
consumer to justify the implementation of a comprehensive Biomethane gas offering program
within the province. Terasen, as a means of providing background in its Application, provides an
overview of the types of green business models or programs deployed in North America and their
participation rates. (Exhibit B‐1, pp. 28‐29) In addition, Terasen commissioned TNS Canadian Facts
(TNS) to conduct primary research as a means of evaluating and validating potential BC residential
and commercial markets for a biogas program as well as the market drivers and factors affecting
![Page 425: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/425.jpg)
31
different price points. (Exhibit B‐1, p. 35)
In its review of voluntary renewable energy market programs in North America, Terasen notes that
there are three primary types of programs:
• Contribution programs – those designed to allow customers to contribute to a utility managed fund for renewable energy project development.
• Energy‐based programs – those allowing customers for a premium to purchase a certain amount of energy from sources which are renewable.
• Carbon offset programs – those which provide the customer the option of offsetting their GHG emissions through the purchase of carbon offsets.
Of these, Terasen notes that energy‐based programs had the highest level of success. Further, the
Company reports that according to National Renewable Energy Laboratory (NREL) the top ten
green programs in the US in 2008 had participation rates ranging from 5 percent to 21 percent and
all ten were some type of energy‐based scheme. Overall, the participation rate for all programs
reported on had a mean of 2.2 percent and a median of 1.2 percent, numbers which have
increased steadily over the previous six years. (Exhibit B‐1, pp. 28‐30) Terasen reports that if the
average were relied upon, the uptake in this jurisdiction would result in over 16,000 signups for the
Biomethane Program. This exceeds anticipated production at the two current supply projects in
the Application. (Exhibit B‐1, p. 46)
Terasen commissioned a survey of residential and commercial customers. Key findings of the
survey as reported are as follows:
1. Both residential and commercial customers strongly support Terasen’s investment in and the offering of biogas programs (67 percent support investing in biogas projects and 65 percent support offering programs).
2. Both customer markets also show preference for an energy‐based program. When presented with a choice between biogas and carbon offsets, customers favoured the former by a three to one margin. Further, 56 percent of residential and 47 percent of commercial customers indicated they would sign up for a biogas program as opposed to 24 percent of
![Page 426: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/426.jpg)
32
residential and 35 percent of commercial who would do so with a carbon offset based program.
3. When given a choice as to whether customers would prefer a program that was paid for by customers who signed up for a biogas offering and paid a premium as opposed to all customers bearing the cost 47 percent of residential and 60 percent of commercial customers preferred a universal price increase (to all customers) while 26 percent supported a premium price increase. However, a large number (27 percent) did not state a preference or did not know how to answer the question. When questioned further about the level of increased costs customers would be willing to pay if all customers had to pay (amounts between 0.5 and 3 percent were explored), there was a strong support for a modest percentage increase in cost (between 0.5 and 1 percent). This support lessened as the cost premium approached 3 percent.
4. With respect to price premiums and blends with a voluntary program, there was a strong preference for a 10 percent price premium on the commodity and for a 10 percent blend of biogas and corresponding GHG reductions (46 percent for both residential and commercial). The preference dropped significantly for higher prices and blends of biogas and GHG reductions.
5. Assuming the program was offered on a voluntary basis, 16 percent of residential and 10 percent of commercial customers indicated a disposition to enroll. These numbers drop as the price level is raised. Terasen reports that this equates to an estimated 120,000 residential customers and 9,200 commercial customers.
On the basis of this research Terasen has concluded that a renewable energy program where
customers enroll to have a portion of their natural gas come from biogas will be most effective.
Terasen further concludes that the number of customers who would support a universal cost
increase if it were moderate, is supportive of its proposed hybrid model where some costs
associated with the Program are borne by all customers. Finally, it has concluded that the research
supports rolling out the Program first to residential customers due to their higher participation
potential and their preference for an initial offering of a 10 percent cost increase for a 10 percent
blend to maximize household involvement. (Exhibit B‐1, pp. 35‐47)
In response to BCOAPO IR 1.4.3, Terasen indicated that it undertook to reflect some of the
characteristics of the top ten green programs in its proposal. Included among these are the
following: the choice of a renewable energy program, the consideration of marketing strategies
such as those identified in Chartwell’s “Helping Customers Live a Sustainable Lifestyle 2007”
![Page 427: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/427.jpg)
33
(Exhibit B‐1, Appendix C‐2), and the use of a lower price option in the introductory phase of the
program.
None of the Interveners expressed concern with respect to Terasen’s estimate of customer
demand and how this was integrated into Program development. However, the BCOAPO did
express some concern with respect to the use of the mean rather than the median as related to the
level of “take up” rates in the secondary research. In spite of these concerns, it stated it did not
“believe that TGI’s estimated total demands for green offerings are a cause for concern in this
proceeding.” (BCOAPO Final Submission, p. 3, emphasis in original)
Commission Determination
The body of research presented by Terasen demonstrates that there is a willingness among
customers to actively support what has been described as “green pricing” programs. The
information provided by NREL indicates that there is significant variance among the US jurisdictions
reviewed with respect to the level of participation. Ignoring for a moment the results and attributes
of the ten most successful programs, the fact that the mean participation rate for all programs was
2.2 percent, which would result in an uptake rate of 16,000 households in BC, provides some
comfort notwithstanding the concerns raised by BCOAPO that the median of 1.2 percent was a
more appropriate measure. By contrast, the TNS survey indicates there may be a potential
participation rate as high as 120,000 households if customer actual participation rates match
customer intentions measures.
The Commission Panel notes that the TNS survey undertaken by Terasen was with BC residents
only and is more representative and better reflects the customer views and intentions as well as
the unique market conditions within the province of British Columbia. Accordingly, we put more
weight on this survey in spite of the fact that it measures intentions rather than actual results as
was the case with the NREL Report. However, in doing so the Panel acknowledges there is a
potential for a relatively high participation rate (perhaps as many as 120,000 households) but is not
persuaded that the case for this has been adequately made. In our view, the most appropriate way
![Page 428: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/428.jpg)
34
to determine the actual market potential as differentiated from customer intentions is to test it
within the BC market.
Terasen, in the view of the Panel has chosen a model which has been designed to reflect much of
what has been learned from successful programs in other jurisdictions as well as from the primary
research conducted within BC. Firstly, the choice of an energy‐based program is very much in
keeping with the success stories from other jurisdictions. Moreover, it is an appropriate response
to what was learned through research in the BC market where both residential and commercial
customers indicated a strong preference for this type of model. We also consider the choice of a
10 percent premium for a 10 percent blend of biogas to be a good choice given the fact that the
TNS survey indicates a strong preference for these percentage levels.
The Commission Panel finds that the research presented by Terasen supports the position that
there is likely to be sufficient demand to justify moving forward with a Biomethane Program.
4.5 Commission Determination on the Projects
As noted in the above, the Commission Panel is satisfied there is sufficient demand for and supply
of Biomethane to move forward with the Projects. Further, the Panel is satisfied the Program is in
alignment with British Columbia’s energy objectives and government policy. Accordingly, we
approve the Purchase Agreements with the CSRD and Catalyst, and expenditures related to the
facilities for both of these Projects.
However, the Panel remains concerned that the model proposed by Terasen Gas has yet to be
tested in the British Columbia marketplace. In our view it would be prudent for TGI to gain
knowledge and experience by a thorough testing of the Program before any firm determination can
be made as to the full market potential. The two Projects will provide a reference case which will
serve as a basis for future projects. Therefore, we have determined the scope of the Biomethane
Program should be limited until such time as actual results can be analyzed and more definitive
conclusions drawn. This will be discussed further in Section 4.6, Criteria for Future Projects.
![Page 429: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/429.jpg)
35
4.6 Terasen’s Role in Biogas Upgrading Process
TGI takes the position that its ownership and operation of the upgrading facilities will promote the
efficient development of Biomethane supply projects and ensure that the Biomethane, which is to
be injected into the distribution system, will arrive “safely and economically” with dependable
flow. (Exhibit B‐1, p. 6) As discussed earlier, the upgrading process purifies raw biogas to remove
contaminants, producing Biomethane, which is directly substitutable for natural gas.
As discussed previously, Terasen Gas proposes two business supply models. In one, CSRD, Terasen
will purchase raw biogas from a supplier and upgrade that gas to Biomethane. This model will
therefore entail Terasen’s investment in the facilities required to upgrade the biogas to
Biomethane. This is above and beyond its investment in the facilities necessary to measure the
flow of gas, connect to the TGI distribution system and test the gas to ensure its compatibility with
natural gas, which is a requirement under both business models.
Terasen notes that its proposed investment in the upgrading facilities is minor in comparison with
the significant capital investment involved in the development and collection of raw biogas, a field
which it does not intend to enter, as this is currently outside its area of expertise. Nonetheless, its
capital investment is acknowledged to be “material.” (Exhibit B‐1, pp. 6, 76)
Terasen states that the upgrading of biogas to Biomethane “is purely a gas processing and gas
management step” falling within its core expertise and that TGI “is best positioned in most cases to
ensure that the biogas is upgraded in a manner that will best ensure a consistent and reliable
supply of Biomethane.... .” (Exhibit B‐1, p. 71)
TGI describes the advantages of its ownership of the upgrading facilities as follows:
• Terasen is able to best ensure the safe, reliable and economic delivery of Biomethane to the distribution system;
• Terasen’s retention of control over the upgrading process allows it to optimize operations and balance final gas quality with total volume of Biomethane; and
![Page 430: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/430.jpg)
36
• Terasen’s point of control being further upstream of the measuring and monitoring point gives Terasen greater control of gas quality and customer and equipment safety.
(Exhibit B‐1, p. 71)
Terasen summarizes its position: “Terasen Gas must own and operate equipment to upgrade raw
biogas to Biomethane in order to ensure safe and reliable operation of Biomethane supply
projects.” However, Terasen Gas does concede that when appropriate project partners can be
found, there will be an opportunity for the development of “an independent Biomethane
upgrading industry in British Columbia.” (Exhibit B‐1, p. 72)
Terasen advises that in the natural gas industry, raw gas producers may own and operate the
upgrading facilities, or the raw gas may be upgraded in third party facilities. (Exhibit B‐1, p. 73)
Terasen also notes that at the time it filed its Application there were “no operating biogas
upgrading plants in the province and therefore no experienced operators.” (Exhibit B‐3, BCUC
IR 1.2.2)
Terasen Gas suggests that, as its ownership of the upgrading equipment as utility assets best
ensures the reliability of supply, this should be the preferred ownership model, absent other
commercial reasons favouring third party ownership. Terasen submits that this supports a flexible
approach to the issue. (Terasen Final Submission, p. 29) Terasen further suggests that “commercial
realities” will favour TGI’s ownership and operation of the upgrading facilities as its involvement as
an experienced, reputable and reliable partner will assist developers in obtaining financing. It also
suggests that less financing will be needed in total if it owns the upgrading equipment instead of
the developer. It further states that “[d]evelopers have indicated that a partner with experience in
gas processing and gas technology is attractive.” (Exhibit B‐2, BCUC IR 1.2.2; Terasen Final
Submission, p. 31)
Terasen also submits that, to the extent that its involvement in the upgrading operation might
discourage other market participants, such a line of enquiry is misplaced and that “[p]rotecting
potential third party suppliers (if and when they exist) from competition…to encourage new market
![Page 431: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/431.jpg)
37
participants cannot be the end objective of public utility regulation as defined by the [Utilities
Commission] Act.” It submits that the Commission only has jurisdiction over the competitive
landscape for ownership of upgrading facilities to the extent that such ownership is ultimately
related to the quality, reliability and cost‐effectiveness of Biomethane service.” Terasen adds that
“logic would suggest that the longer‐term effect of insulating third parties that might be interested
in owning upgrading facilities from competition with an efficient producer like TGI will be
inefficiencies that result in higher overall costs of supply to customers.” (Terasen Final Submission,
p. 31)
Terasen’s evidence is that the only constraint it is placing on potential third party involvement in
the upgrading process is that they are “able to demonstrate they are capable of providing a reliable
and safe source of Biomethane.” (Exhibit B‐3, BCUC IR 1.26.1)
To the BCOAPO, “the nub of the issue is whether to permit the regulated monopoly distribution
utility to venture into a commodity supply venture, and how to reconcile this intrusion into the
unregulated, competitive supply market with the need to develop more environmentally benign
ways of sourcing household energy.” The BCOAPO offers only “strings‐attached” support for the
Application, stressing that in its view, “biogas marketing and project costs are, for the most part,
best undertaken by non‐utility entities” and that this “should not be taken as a template or
precedent for the utility to venture further into the gas commodity refining and supply line of
business.” (BCOAPO Final Submission, p. 3)
Terasen maintains the view that its venture into the upgrading industry should be done through
Terasen Gas itself in its current structure as opposed to through a non‐regulated business or
through a separate, regulated entity. It’s position is that all upgrading activities are subject to
regulation by the Commission, given the definition of “public utility” in the UCA, and its application
to a “person…who owns or operates…equipment or facilities…for… the production…of natural
gas…or any other agent [i.e. Biomethane] for the production of … heat … to or for the public or a
corporation for compensation…” Terasen states that the definition of public utility covers both the
upgrading of biogas to Biomethane and the notional sale of the Biomethane to customers and that
![Page 432: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/432.jpg)
38
any entity that sells upgraded Biomethane either to the public or to Terasen will be subject to the
Commission’s regulatory oversight.
However, Terasen suggests that regulation of this business need not be active, but “passive” as the
pricing issue can be addressed in the review of the purchase agreements. (Exhibit B‐3, BCUC
IR 1.1.1)
Terasen states that the “BCOAPO has not articulated how or why TGI’s supply model will impair fair
competition, prevent a competitive marketplace, or negatively impact ratepayers” and suggests
that its evidence in respect of its (or a reliable partner’s) need to own and operate biogas
upgrading equipment was not challenged. It further suggests that the BCOAPO did not address its
other areas of evidence relating to the development of a competitive marketplace. (Terasen
Reply, p. 4)
Commission Determination
Assuming, without necessarily deciding that upgrading processes are subject to regulation by the
Commission, the Commission Panel remains concerned about Terasen’s entry into a new area of
business. The Commission Panel is not convinced that Terasen must be involved in the upgrading
process to ensure the quality of product, reliability of delivery, and safety of the operation. The
Commission Panel is of the view that Terasen’s testing and control of the product in its
interconnection facilities, prior to its inclusion in the distribution system, which will happen under
either proposed business model, will provide that measure of protection. However, the
Commission Panel is prepared to allow the CSRD Project to proceed considering grants have been
obtained to reduce the cost (and risk) of the project.
The Commission Panel makes no finding on the acceptability of Terasen’s involvement in
performing the upgrading at this time, particularly as there may be an industry developing which
might result in a competitive business environment for future upgrading projects. As this is a new
business for Terasen, the Commission Panel rejects Terasen’s submission that it is or will
![Page 433: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/433.jpg)
39
necessarily be an “efficient producer” and that its involvement in the upgrading process necessarily
promotes “cost effectiveness”. In addition, the Commission Panel notes that the upgrading of
biogas does not have the significant upfront capital investment and potential economies of scale
typical of a natural monopoly. Upgrading of biogas may therefore evolve to an industry made up of
a number of separate, small upgrading businesses. The use of a separate entity, owned by Terasen,
will maintain the advantages Terasen’s cites in terms of its reputation, experience and expertise.
Accordingly, the Commission Panel directs that Terasen’s costs of the upgrading project be
segregated so they may be compared with costs of other potential upgrading operations by other
industry participants in the future. The Commission Panel further directs that the upgrading
business be kept sufficiently distinct so as to be severable, should the Commission determine
that this business ought to be conducted through a separate entity in the future.
4.7 Criteria for Future Projects
As outlined in Section 3.3 of this Decision, TGI has proposed that the process for regulatory review
of future new supply projects and contracts be streamlined. Within the Application it has sought
an order to allow future supply contracts that meet the criteria described within Section 8.4 of the
Application to also meet the filing requirements in sections 71(1) (a) and 71(1) (b) of the UCA.
(Exhibit B‐1, p. 133) Accordingly, the Company proposes to file supply contracts only under
section 70 [sic] without additional supporting information. (Exhibit B‐1, p. 80)
In its Final Submission, Terasen states that the Commission can accept an energy supply contract
under section 71 or it can require additional evidence in support of the public interest. Terasen
argues that many of the public interest considerations will be the same, while acknowledging there
will be differences which will exist among future supply contracts with respect to terms of the
agreements including price. Accordingly, TGI submits that the potential for redundancy in the
Commission’s review of what are relatively small supply projects makes it desirable for an efficient
public interest review process and the criteria (outlined in Section 3.3 of this Decision) provide an
appropriate reference point. (Terasen Final Submission, p. 34)
![Page 434: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/434.jpg)
40
Both the CEC and BCSEA generally support the proposal put forward by Terasen with respect to
establishing criteria for acceptance under section 71. BCSEA notes that it provides a balance
between efficiency and regulatory oversight. (BCSEA Final Submission, p. 7) The CEC submits that
because of the small size of the projects being considered, it would be inappropriate to burden this
new initiative with undue regulatory process. However, the CEC submits that the Commission
should consider two additional criteria; continued prospects for customers buying the service and
continued backup plans for mitigation of risk for the magnitude of supply under contract. (CEC Final
Submission, p. 3) BCOAPO provided no specific submissions with respect to the criteria issue.
Terasen states that concerns underlying the CEC’s recommendation for the additional criteria have
been adequately addressed in the proposal. (Terasen Reply, p. 2)
The Commission Panel acknowledges the need to promote regulatory efficiency where appropriate
and in the public interest. However, in doing so, it underlines the importance of establishing
criteria that are sufficiently precise and comprehensive to ensure the public interest continues to
be met in the future. The Panel believes there are a number of issues arising from the criteria
which have been proposed by Terasen. Firstly, there is concern as to whether the RIB Tier 2 rate
proposed by Terasen as a price ceiling is appropriate. Secondly, the Panel has concerns with
respect to scope of the criteria being proposed and believes that consideration of further criteria
should be undertaken in reaching a determination on this.
As outlined previously in Section 3.3.2.1 of this Decision, TGI states that the justification to use RIB
Tier 2 pricing as a proxy for Biomethane pricing is based upon two factors:
• the lack of external benchmarks specific to Biomethane; and
• the fact that RIB Tier 2 pricing (currently $15.28) reflects the price of new British Columbia based electrical supply which is viewed as a competing clean energy source.
![Page 435: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/435.jpg)
41
On this issue the CEC, while stating it is comfortable with the proposed $15 ceiling, submits the RIB
Tier 2 rate may not be the most appropriate way to regulate Biomethane as BC Hydro’s rates may
vary for numerous unrelated reasons. (CEC Final Submission, p. 3) BCSEA submits that it agrees
with TGI’s reliance on the RIB Tier 2 rate as a benchmark for establishing an appropriate cost at
least until an alternative market‐ based mechanism is found. (BCSEA Final Submission, p. 5)
No other Intervener took a position on the price ceiling.
Terasen Gas points out in its Reply that there are currently no external pricing benchmarks for
Biomethane and the RIB Tier 2 rate is only an initial reference point and it will propose a price
ceiling change in the event it becomes necessary in the future. (Terasen Reply, p. 2)
With respect to the scope of criteria, the Panel notes again that this is a completely new business
undertaking for Terasen. While the research conducted indicates there is good potential, this has
yet to be proven in the BC marketplace and, in spite of expectations, it could result in failure. The
potential impact of this is raised by BCOAPO in its Final Submission where it notes its main concern
relates to the impact of the cost of stranded assets on non‐participants if the commercial venture is
unsuccessful. BCOAPO acknowledges that the small cost, the review process and the ability to
remove and resell the installation if required, serve to mitigate its concern. (BCOAPO Final
Submission, p. 3)
Commission Determination
The Commission Panel accepts that there is a need for streamlining of the approval process as it is
likely that many of the projects which will be proposed in the future will be small in size and
subjecting them to rigorous scrutiny in each case would not be in the public interest. Accordingly,
we have determined that future energy supply contracts for the purchase of biogas or
Biomethane that meet the criteria listed in Section 3.3.3 of these Reasons with the following
additional criteria will meet the filing requirements in sections 71(1)(a) and 71(1)(b) of the Act:
![Page 436: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/436.jpg)
42
• The total production of Biomethane for all projects undertaken under what has been approved in this Decision does not exceed an annual purchase in each year of 250,000 GJ.
• The maximum price for delivered Biomethane on the system is set at $15.28 per GJ.
The Panel is encouraged by the initiative Terasen Gas has taken with this Biomethane Program and,
subject to certain conditions raised within this Decision, is supportive of moving forward with
additional projects in the future. However, the Biomethane Program is a new initiative and has not
been tested in the marketplace. If the Panel were to approve future projects with no limitations as
proposed by Terasen in the Application, it could be placing the ratepayer at risk for what in total
could be a substantial amount. We do not believe this would be in the public interest. However,
we are not convinced that the risk is so great that all future initiatives should be held back pending
full testing of the model as suggested by the comments of BCOAPO. Therefore, we have provided
in our determination that TGI can purchase a total of 250,000 GJ annually which will allow some
latitude for TGI to proceed with some additional projects before returning to the Commission with
the results from what has been undertaken and recommendations for the future. Nevertheless,
the Panel would like to be clear that in spite of this, we view these initial programs as a test phase
only. The results from these projects will very much determine whether the Program will continue
and whether the model as proposed is suitable. We acknowledge the recommendations of the CEC
with respect to additional criteria but given the limitations we have set, it is premature to add
these criteria at this time. Further, even with these criteria as Terasen has acknowledged, the
Commission retains the right to depart from them and require further process. (Exhibit B‐3,
BCUC 1.24.3)
The Commission Panel notes the comments of CEC with respect to tying the pricing ceiling for
future projects to the RIB Tier 2 rate as proposed by Terasen and has similar concerns with respect
to the potential for future price changes. However, the Panel is satisfied that setting the rate
ceiling at $15.28 per GJ which corresponds to the current RIB Tier 2 rate is reasonable as it provides
Terasen with sufficient discretion to operate with some flexibility with the initial projects.
![Page 437: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/437.jpg)
43
4.8 Risk of Stranded Assets
A stranded asset is an asset that is worth less on the market than it is on a balance sheet due to the
fact that it has become obsolete in advance of complete depreciation. Stranded costs related to
stranded assets are inevitable in any industry where the regulatory environment changes
dramatically, and partial or full compensation for stranded costs is usually considered fair play for
monopoly services suddenly thrust into a competitive market place. Today, the debate continues
regarding the extent to which the regulatory compact entitles utilities to recover the cost of
stranded assets in future rates. Depending on circumstances, utilities have been allowed to
recover the entire investment or a partial investment from their regular customers over a certain
amortization period. There may even be situations where no recovery would be permitted. This
larger question cannot be answered in this proceeding but, nevertheless, the following should be
considered in this context of uncertainty regarding the ultimate responsibility over stranded assets.
This Section addresses the risk of the Projects in the event those ventures are not commercially
successful. Related to the risk of failure to supply is the potential for permanent termination of the
contract by project partners that would leave Terasen’s installed facilities idle. This is a particular
concern in the case of the CSRD Project where Terasen Gas is investing in the upgrading facilities.
TGI submits that the risk of stranded assets is modest to start with and that Terasen has taken
appropriate steps to mitigate that risk contractually:
• The overall investment required by Terasen is low, being $1.8 Million for CSRD and $0.6 Million for Catalyst;
• There is little risk of stranding associated with lack of customer demand, as the Biomethane generated by the two projects would be consumed based on the conservative measure of industry average demand;
• The 15‐year and 10‐year terms for the CSRD and Catalyst Projects respectively provide longer term supply of biogas and a reasonable period over which to recover equipment costs;
![Page 438: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/438.jpg)
44
• Under the contracts, Terasen has the right to enter the site and physically recover its facilities after a specified period of non‐performance. The majority of facilities used for the project could be recovered and used for other projects. In addition, the CSRD contract provides Terasen with a termination payment in excess of the estimated value of the stranded assests and moving costs whereas the Catalyst contract provides Terasen with appropriate security against stranding; and
• Advancements in upgrading technology will have little impact on the success of the CSRD project, as the current equipment recovers as much as 95 percent of the methane in raw biogas. As a result, any technological improvements over time will result in only minor efficiency improvements and would therefore not make the current technology obsolete.
(Terasen Final Submission, pp. 24‐25, 28)
BCOAPO submits that its main concern (apart from whether this is appropriate utility activity at all)
is “the risk of stranded costs being visited upon non‐participants if the venture is not successful
commercially.” However, BCOAPO acknolwedges that in this case the relatively small cost, the
post‐implementation review, and the configuration of the installation to facilitate removal and
resale, all mitigate that concern. Finally, BCOAPO submits that Biomethane is a technology which
should have an opportunity to incubate under the aegis of the utility, so long as financial risks to
non‐participants are contained, and that the proposed projects may be a useful and necessary
“kickstart” for future green initiatives by other parties. (BCOAPO Final Submission, pp. 2‐3)
The CEC submits that the investments proposed by Terasen are modest, the risks relative to those
investments are well identified and Terasen has plans for substantial risk mitigation should they be
realized. Accordingly, the CEC agrees with Terasen’s summary of its evidence. (CEC Final
Submission, p. 2)
Commission Determination
The Commission Panel finds that the total capital investment required by TGI for the Projects is
relatively low; especially after allowing for the funding received from the Innovative Clean Energy
fund and from the BC Bioenergy Network. The Commission Panel also notes the supporting
![Page 439: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/439.jpg)
45
Intervener submissions on this matter and finds that Terasen has taken reasonable steps to
mitigate the ultimate risk of stranded assets in terms of the specific structure of contracts it has
negotiated. Finally, the Commission Panel finds that there is little risk of stranding due to lack of
customer demand as the estimates used for projections are on the conservative side.
With regard to future projects, the Commission Panel finds that the Guiding Principles for
Development of Biomethane Supply, the proposed contract language as well as the price ceiling, a
predetermined production quantity limit and the shorter time period to be allowed for the test
period will serve to mitigate concern over the risk of stranded assets. This should be true even in
the cases of future projects that will not receive special funding.
4.9 Principles for Cost Recovery
As illustrated in the Biomethane Service Offering Model diagram in Section 3.0, Terasen proposes
that customers opting for the Biomethane Offering should pay the full costs of the Biomethane gas
supply while all Terasen Gas customers will share the costs related to the interconnection and
monitoring equipment as well as the cost of IT upgrades, program management and customer
education. This Section outlines the proposal in more detail to address the question: Should any
costs be shared by all Terasen customers at all?
4.9.1 Rate Setting
Terasen seeks approval for its proposed rate, tariff provisions, cost allocation methodology, and
accounting treatment pursuant to sections 44.2, and 59 to 61 of the UCA. These are listed in
Appendix E.
![Page 440: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/440.jpg)
46
4.9.2 General Cost Recovery Principles
TGI proposes that customers opting into the Offering and committing to purchase Biomethane
should pay the full costs to supply pipeline quality Biomethane gas. Where Terasen will acquire
raw biogas for upgrading, the acquisition costs of the raw biogas, and the costs of owning and
operating the upgrading equipment will be fully recovered via the Biomethane rate. Similarly, for
those projects where Terasen will acquire pipeline‐ready Biomethane, these costs will be fully
recovered via the Biomethane rate. Terasen states that incremental Customer Works LP (CWLP)
charges related to processing customer enrolments in the Biomethane Program and ongoing O&M
such as customer drops, moves and changes will be fully recovered from only the Biomethane
Program customers via the Biomethane rate. (Exhibit B‐1, p. 17)
However, Terasen Gas states that some costs are being incurred in order to give all customers the
choice of participating in the Biomethane Program, and that all customers obtain environmental
benefits from Terasen offering Biomethane as an option. Terasen further states that costs incurred
to provide this choice and deliver environmental benefits should be allocated to all customers of
the utility because this is consistent with the implementation of other programs, such as the
Customer Choice Program. (Exhibit B‐1, pp. 107‐108)
All operating and maintenace and capital costs included in the determination of the rate impacts,
including the allocation of costs between all customers and those choosing to participate in the
Biomethane Program, are shown in the following two tables.
![Page 441: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/441.jpg)
47
Table 4‐1 Terasen Gas Inc. – Biogas O&M Details
Source: Exhibit B‐1, Appendix J‐1, p. 1
![Page 442: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/442.jpg)
48
Table 4‐2 Terasen Gas Inc. – Biogas Capital Details
Source: Exhibit B‐1, Appendix J‐1, p. 2
4.9.3 Determination of Costs Related to System Changes
TGI commissioned an IT consulting firm to assess the required business system changes and
estimate the costs required to implement the new Offering, including customer enrolment,
program management, nominations, customer billing and rate setting. Terasen states that the
system impact analysis has taken into consideration the existing initiative to replace the current
customer billing system and move customer care services in‐house. Terasen believes it has
developed a cost‐effective and workable solution along with supporting processes and systems to
implement a Biomethane Program in British Columbia. (Exhibit B‐1, p. 109)
4.9.4 Costs to be Allocated to all Customers
Costs that will be allocated to all Terasen Gas distribution customers will include:
• Cost of service related to gas analyzing equipment, meters, transmission or distribution pipeline extensions constructed to receive the injection of Biomethane;
![Page 443: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/443.jpg)
49
• Capital costs for application development and configuration of the current customer billing system and modifications to supporting processes to support accepting on‐line enrolment requests, configure the new Biomethane tariff and provide additional reporting;
• On‐going operating costs related to additional customer inquiry calls, quarterly updates to the tariff rate, customer education costs, including costs associated with marketing the Program, and a new full time position of biogas Program Manager.
Terasen proposes the creation of a non‐rate base deferral account to capture costs applicable to all
customers incurred prior to January 1, 2012. It further proposes to recover these costs from all
non‐bypass customers by amortizing them through delivery rates commencing January 1, 2012
over a three year period. The forecast levelized rate impact for these customers is $0.004 per GJ.
By way of example, Terasen states that for a residential customer using 95 GJ per year, the annual
incremental cost is 38 cents. (Exhibit B‐1, pp. 110‐111)
4.9.5 Costs to be Allocated to Biomethane Program Customers
Costs to be allocated to Biomethane Program customers include the cost of purchasing
Biomethane and raw biogas, including upgrading costs, as well as the ongoing administrative O&M
costs directly related to Biomethane customers such as customer enrollment, removal of
customers from the program and billing adjustments.
Terasen proposes to recover these costs through a Biomethane Energy Recovery Charge. As this
rate will be based on forecast costs, Terasen seeks Commission approval of a deferral account, the
Biomethane Variance Account (BVA), to capture the difference between actual costs and revenues
collected through the BERC rate. Terasen has calculated the BERC rate as $ 9.904/GJ and seeks
approval of the Biomethane Energy Recovery Charge at this amount effective October 1, 2010.
(Exhibit B‐1, p. 117)
![Page 444: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/444.jpg)
50
By electing to participate in the first phase of the Biomethane Program offering, residential
customers will pay a gas commodity price based on a 10 percent Biomethane and 90 percent
natural gas blend. Terasen submits its proposal results in a minimal rate impact for all non‐bypass
customers, and a Premium Service rate that reflects the premium cost of Biomethane. It also
points out that there is a longer‐term customer interest in ensuring that its product offerings meet
the expectations of customers and potential customers and also submits “[a]ll customers benefit
from initiatives to retain and add throughput to the Terasen system because added throughput
spreads system costs over a larger base, thus resulting (all else equal) in lower delivery rates.”
Finally, Terasen submits that that the proposed rates are just and reasonable, given the benefits to
all customers associated with the premium offering, and the principled basis Terasen has proposed
for cost allocation. (Terasen Final Submission, pp. 19, 51)
4.9.6 Intervener Submissions
BCOAPO strongly supports “thoughtful and economical efforts to increase the use of renewable
resources and reduce GHG emissions in the province” and believes that such efforts are in the
public interest. However, BCOAPO submits that the costs of achieving that goal must be
distributed appropriately and through correct mechanisms. While BCOAPO has some concerns, it
supports the Application noting the small annual costs to non‐participants. (BCOAPO Final
Submission, pp. 2‐3)
BCSEA supports the concept that customers in the Biomethane Program should pay for the cost of
Biomethane and all customers should pay for the cost of making the Biomethane Program
available. BCSEA agrees with Terasen that the principle is analogous to the Commission‐approved
treatment of the Customer Choice Program. (BCSEA Final Submission, p. 6)
The CEC supports Terasen’s efforts to address the long term management of risk by way of this
initiative to ensure retention and addition of customers to the system in order to spread
distribution costs over a larger base. The CEC submits that Terasen’s rates should be set on the
basis of cost causality for utility service rates and believes that the Shareholder should not be
![Page 445: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/445.jpg)
51
inherently responsible for the cost of any of the proposed Biomethane Service. The CEC further
submits that Terasen has correctly defined cost allocation methodologies appropriate for utility
service and has proposed to apply them correctly. Finally, the CEC notes that the allocation of
marketing, advertising, promotion and education back to all customers appears to be standard
practice and that there is no quality evidence on the record to support alternative cost‐allocation
methodologies. The CEC submits that the Commission should give weight to the fact that the
magnitude of the expenditures for this new service does not warrant revision of the cost allocation
methodology at this time. “The broad interest of customers in GHG reduction and the potential for
renewable options makes the cost allocation to all customers appropriate.” (CEC Final Submission,
pp. 4‐5)
Commission Determination
The Commission Panel is cognizant of the new post CEA environment which is challenging TGI to
innovate and adapt its utility service model. In this regard, the Commission Panel agrees with
Terasen and the CEC that it is in the long term interest of all Terasen utility customers that new
initiatives contribute to retention and the addition of throughput in the system, which will result in
system costs being spread over a larger base. The Commission Panel also notes the dual role of the
Commission in balancing the interests of ratepayers and the utility.
It is in this context that the Commission Panel approves the cost allocation methodology
proposed by Terasen Gas for the test period as just and reasonable. It is important to consider
this finding as a test period approval only, as another determination will be required at the point of
the review for Phase 1. The Commission Panel also notes the “strings‐attached” support given by
BCOAPO. Because in this Application the small levelized annual cost to non‐participants,
(estimated at 38 cents to an average customer) is not material, it is relatively easy to approve the
methodology. Small programs like this give Terasen an opportunity to develop the markets and
test customer demand under the auspices of the utility regulatory model. However, as the
Biomethane business grows and matures the issue of “who pays” becomes more significant. In the
long term, once the markets have evolved, a time may come to take a fresh look at the role of the
![Page 446: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/446.jpg)
52
utility vis‐a‐vis competitive markets as discussed in Section 6.0.
The Commission is concerned that distribution (or transmission) pipeline extensions to connect the
projects are included in the costs allocated to all customers. These costs can vary widely from
project to project, and arguably are more akin to upgrading costs. However, considering the
relatively modest amount of those connection costs for the two projects at hand and the test
period nature of this approval, the Commission will only require that this cost be identified and
monitored.
The Commission Panel notes that TGI has budgeted $160,000, $240,000 and $300,000 for customer
education in 2010, 2011 and 2012 respectively, but has not sought approval of these. The
Commission accepts that these expenditures will be recorded in the appropriate deferral account.
However, the Panel notes that recovery in future rates of these amounts will be subject to future
review by Commission.
Specific approvals for the Biomethane Energy Recovery Charge, the Biomethane Variance Account
and other components of the approvals sought will be addressed in Section 5.0.
4.10 Other Project Risks
This Section addresses project risks other than risk of stranded assets for the CSRD and Catalyst
Projects and summarizes Terasen’s mitigation measures.
4.10.1 Risk to Gas Supply Portfolio
TGI states that quantity of biogas and Biomethane from the Projects will not impact its overall gas
supply portfolio. At these early stages with low levels of supply, entering the two agreements will
not cause Terasen to alter its other portfolio or planning practices or contracts. Terasen further
states that because of this, the amounts of new supply promised will not leave the Company
vulnerable to either additional market purchases or access to alternative sources of conventional
![Page 447: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/447.jpg)
53
gas to replace biogas or Biomethane that is not delivered. However, Terasen also states that as
additional biogas and Biomethane purchase agreements come on line it will reassess the impact on
its overall portfolio. Finally, Terasen points out that the Catalyst agreement includes the full costs
of replacement gas in the non‐performance remedies within the agreement. (Exhibit B‐1, pp. 92,
101, 102)
4.10.2 Risk of Failure to Supply Biomethane
In the case of the CSRD Project, Terasen notes that the composition of buried waste in the Salmon
Arm landfill is not fully predictable and therefore neither is the gas production from the landfill. As
a result, there is the potential for an interruption in either supply of raw gas or Biomethane. It
states that it has mitigated these risks in two ways:
• From the gas system perspective, planning will be done assuming that biogas is not available;
• From a financial perspective, the compensation for sale of gas is based on sellable (purified) gas. The CSRD will not receive any payments unless Terasen can successfully upgrade the biogas and inject it into the distribution system. Further, there is also a minimum supply requirement that if not met will trigger a contractual default.
(Exhibit B‐1, p. 92)
In the case of the Catalyst Project, Terasen explains that failure of Catalyst to provide gas to the
Company could result from events such as loss of waste stream supplies (anaerobic digester
feedstock), failure to meet gas specifications, breach of contract or poor financial health resulting
in interruption to operation. Terasen states that it has addressed these risks through a non‐
performance clause in the agreement. (Exhibit B‐1, p. 102)
![Page 448: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/448.jpg)
54
4.10.3 Operational and System Risk
Terasen Gas takes the position that “in the unlikely event that a failure of the biogas upgrading
equipment occurs”, contaminants harmful to the pipeline or disruptive to customer service could
occur. In order to mitigate this risk, Terasen will ensure the upgrading system be designed to self‐
monitor for abnormal conditions and, as owner of the upgrading equipment, will always have the
final control of the gas quality. Should Biomethane not meet these specified quality, Terasen will
immediately stop delivery to customers and evaluate the problem with the CSRD. (Exhibit B‐12,
p. 93)
To mitigate the same concerns in the case of Biomethane delivery from Catalyst, the agreement
requires that Biomethane must meet Terasen Gas specifications and includes the right of Terasen
to interrupt delivery from the project if the gas does not meet these quality specifications. The
Catalyst facilities will also be linked with TGI’s gas control system to allow real time monitoring of
the quality sampling equipment. Terasen further states that the pressurized flows of conventional
natural gas will automatically backfill and replace the lost flow of Biomethane during any such
stoppage. (Exhibit B‐1, p. 102)
4.10.4 Facilities Cost Risk
Terasen states there is some risk that costs for the facilities could be higher than expected, but
notes it has followed best practices for cost projections and used conservative estimates for
interconnection and monitoring equipment to mitigate this risk. Terasen further states that for the
upgrading plant it has negotiated a fixed price contract with the supplier. Finally, Terasen notes
that in the CSRD cost‐of‐service analysis it has included a 10 percent contingency allowance on
capital costs. (Exhibit B‐1, p. 93)
In the case of the Catalyst Project, Terasen has followed the above practices for the
interconnection and monitoring equipment to mitigate risk. In addition, it has included a
20 percent contingency allowance on capital costs. (Exhibit B‐1, p. 103)
![Page 449: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/449.jpg)
55
Commission Determination
The Commission Panel finds that Terasen Gas has taken prudent steps to mitigate risks inherent in
innovative new projects such as the CSRD biogas and Catalyst Biomethane Projects. However, the
Commission Panel notes that after the test period there will be a requirement for a more
comprehensive review of who owns the upgrading facilities as discussed in Section 4.5. This review
should also provide an opportunity for a further risk assessment.
4.11 Post Implementation Review and Reporting
In its Application, Terasen acknowledges that following implementation a thorough review of the
Biomethane Program will be necessary. The Company proposes that the review be carried out five
years following the Program launch and be made up of two components; a post‐implementation
report and a workshop. The report and workshop will address the following elements:
• How many and what types of supply projects have been developed;
• Customer segmentation;
• Enrollment and attrition Rates; and
• Review of the costs incurred and their recovery.
Terasen notes that the five year time span will be sufficient to allow the industry to mature through
the development of additional projects and to validate the research which has been conducted into
the residential and commercial markets. In the ensuing period, Terasen proposes to report on the
development of the Program through its revenue requirement applications as well as report on the
costs of Biomethane gas as part of the regular quarterly gas cost reporting which has been
established with the Commission. (Exhibit B‐1, p. 81)
BC Hydro had no comments in its submissions with respect to the post‐implementation review and
reporting process. Likewise, the BCOAPO had no comments concerning the timing and review of
the Program. However, based on the BCOAPO’s stated position that the Projects should be made a
![Page 450: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/450.jpg)
56
“one off” and not be taken as a template for further ventures into the gas commodity refining and
the supply line of business, it can be inferred that it is BCOAPO’s view the timeline for review of the
Projects could be shortened. (BCOAPO Final Submission, p. 3) BCSEA stated in its submission that it
was in support of what Terasen has proposed. (BCSEA Final Submission, p. 7) The CEC recommends
that the Commission request annual reporting encompassing on‐going investment expenditures,
operating costs and updated projections for customers, as well as volumes and costs in addition to
what has been proposed. (CEC Final Submission, p. 5)
In Reply to the CEC submission, Terasen states that if the Commission wishes it to address the
additional information in annual reports it will do so. However, it notes that what has been
proposed is redundant as it will be addressed more appropriately in TGI’s future resource plans
and/or revenue requirements applications. Terasen concludes by pointing out that the costs for
what it describes as redundant reporting will be borne by customers. (Terasen Reply, p. 3)
Commission Determination
As outlined in Section 4.6, the Panel has placed limits on total Biomethane production for all
projects undertaken in this program. Our purpose is to allow Terasen the flexibility to expand the
program from the two Projects. However, we also want to ensure there is the opportunity for
stakeholders to better understand and review the success or failure of this Program and whether
the proposed Biomethane Offering Model is appropriate before it is allowed to grow to the point
where it would be difficult to reverse without a significant financial impact. In keeping with this
view, the Panel finds the five year time period proposed by Terasen for a full review of the program
to be unnecessarily lengthy. We believe that reducing this time period to a period of two years will
allow TGI sufficient time to launch some additional projects and undertake the analysis necessary
to provide an adequate basis for review. Accordingly, the Commission Panel, to safeguard the
public interest, has determined that Terasen will be granted a period of two years from the date
of the Order issued concurrently with this Decision for review and preparation of further
applications in support of expansion of this Program.
![Page 451: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/451.jpg)
57
The Panel, acknowledging the CEC recommendations, expects Terasen’s analysis and report to be
comprehensive. Our requirements include but are not limited to examination of the following
information:
• Full financial review of all projects (individual and aggregate numbers) which have been undertaken;
• Validation of the market research;
• Enrollment and attrition rates;
• Costs and assessment of customer marketing/education programs;
• Customer segmentation and targeting;
• Assessment of Pricing Methodology and Principles for Cost Recovery;
• Future Projects that are under consideration
• Forecasts of Biomethane supply as well as customer demand and anticipated update for the next ten year period.
![Page 452: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/452.jpg)
58
5.0 OTHER APPROVALS REQUESTED
5.1 Biomethane Variance Account
The Commission Panel approves the creation of a rate base deferral account, called the
Biomethane Variance Account, as proposed by Terasen. This account will capture costs to procure
and process consumable Biomethane gas as well as revenues collected through Biomethane energy
recovery components of rates. The Commission Panel finds the BVA to be a reasonable mechanism
to accumulate any differences in Biomethane service costs and revenues. Further, the Panel
accepts Terasen’s quarterly reporting process and Biomethane Energy Recovery Charge rate setting
mechanism as proposed in the Application as this methodology is consistent with the Company’s
existing gas reporting and rate setting methodologies.
Commencing January 1, 2012, the treatment of all costs related to and resulting from ongoing
Biomethane operations will be reviewed by the Commission as a component of Terasen’s Revenue
Requirements Application (RRA). Within TGI’s RRA for 2012 and onwards, Terasen is directed to
include a separate section providing actual and forecasted Biomethane operating, maintenance
and capital costs and an analysis of these costs. This disclosure is to include, amongst other
things, a breakdown of costs incurred by category of past and projected years and an explanation
of the financial results experienced and expected in the test period. Details of all accumulations
within the BVA should also be provided.
The Commission Panel further approves Terasen’s request for two new non‐rate base deferral
accounts (New Deferral Accounts) to capture the following costs, as described by the Application,
incurred prior to January 1, 2012:
i) Costs of service associated with the capital additions to the delivery system; and
ii) Operating and maintenance costs applicable to all customers (attracting AFUDC).
(Exhibit B‐1, pp. 110‐111)
![Page 453: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/453.jpg)
59
As costs associated with the New Deferral Accounts will be incurred in the remaining portion of the
revenue requirement period, the Panel accepts the proposed deferral treatment until January 1,
2012.
In the Application, the Company seeks to recover costs accumulated in the New Deferral Accounts
from all non‐bypass customers over a three year period by amortizing them through delivery rates
commencing January 1, 2012. (Exhibit B‐1, p. 111) The Commission Panel approves this request as
an acceptable recovery period given the nature and forecasted extent of these costs.
As part of its 2012 Revenue Requirements Application, TGI is directed to report the total values
accumulated in the New Deferral Accounts from inception as well as a breakdown of the costs
accumulated in the accounts by nature and dollar amount. Further, the Company is directed to
present within its annual regulatory report to the Commission, the total value of each of these
deferral accounts, net of any amortization. This is to be done each year until the remaining
balance is $nil.
Terasen also seeks to set the Biomethane Energy Recovery Charge at $9.904/GJ and seeks approval
that the Biomethane Energy Recovery Charge is set at this amount effective October 1, 2010.
(Exhibit B‐1, p. 117) Because the rate of $9.904/GJ is well below the maximum rate of $15.28
previously established in Section 4.6, the Panel accepts the Biomethane Energy Recovery Charge
at $9.904 for all Rate Schedules effective October 1, 2010 to recover forecasted costs.
5.2 Rate Schedules
TGI seeks approval of rate schedules of both Phase 1 and 2 of the proposed Offering. TGI proposes
that the Commission approve Rate Schedules 1B and 11B and amendments to Rate Schedule 30
effective October 1, 2010 (Phase 1), and also approve Rate Schedules 2B and 3B for commercial
customers effective January 1, 2012 (Phase 2). TGI notes that Rates Schedules 1B, 11B and the
amendments to Rate Schedule 30 reflect the rate methodology described in this Application. Rate
Schedules 2B and 3B reflect methodology which TGI indicates is consistent with Phase 1 as well as
![Page 454: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/454.jpg)
60
offering higher blends of Biomethane which TGI believes may appeal to commercial customers.
TGI also requests an amendment to its General Terms and Conditions to include reference to the
Biomethane Offering. (Exhibit B‐1, pp. 52‐53 as amended by Exhibits B‐1‐1 and B‐3)
TGI believes it is important to approve both Phase 1 and 2 Rate Schedules at this time for two
reasons. The first reason is to avoid the additional regulatory cost to review Phase 2 as a separate
proceeding in the future, especially given the body of evidence submitted in this proceeding, and
secondly to avoid future delays on timely expansion. (Terasen Final Submission, p. 40)
TGI indicates its intent to file with the Commission additional tariff schedules when the opportunity
to expand the program exists. Also, TGI notes that the Biomethane rollout to other regions and
rate classes will be driven by customer uptake rates in Phase 1 combined with supply availability.
TGI proposes that as such, customer offerings and rate schedules could be modified from time to
time. (Exhibit B‐1, p. 53)
CEC submits that the proposed phase in of the TGI Biomethane service is reasonable and sensible
and agrees that setting rates now is appropriate and may avoid unnecessary regulatory
proceedings. (CEC Final Submission, p. 4)
BCSEA accepts TGI’s explanation for offering the Biomethane Program to residential customers
initially and later expanding the program to make it available to commercial customers and
possibly offer Biomethane blends higher than the 10 percent proposed in Phase 1. Also, BCSEA
accepts TGI’s rationale for seeking approval for the Phase 2 rate schedules at this time. (BCSEA
Final Submission, p. 6)
BCOAPO and BC Hydro express no position on tariff matters.
![Page 455: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/455.jpg)
61
Commission Determination
The Commission Panel approves TGI’s Biomethane new Rate Schedules 1B, 11B, 2B and 3B and
the proposed amendments to existing Rate Schedule 30 as well as requested changes to TGI’s
General Terms and Conditions. The Commission Panel finds that sufficient evidence has been
presented in this proceeding for it to determine that the proposed Rate Schedules are just and
reasonable based on the proposed allocation methodology. It therefore approves them for Phase 1
and 2 of the Biomethane Program. However, if the new Rate Schedules 2B and 3B, when filed,
deviate from the methodology described in the Application, the Commission may determine
further regulatory process is necessary for those Rate Schedules. In addition, the Panel directs TGI
to provide to the Commission any future proposed Biomethane Rate Schedules or amendments
to schedules at least 60 days in advance of their proposed effective date. If the Commission
identifies Biomethane program matters for those Rate Schedules that deviate from the
methodology described in the Application, the Commission may determine that further regulatory
process is necessary before approving any proposed rate offerings or changes related to TGI’s
Biomethane Program.
![Page 456: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/456.jpg)
62
6.0 OTHER COMMISSION PANEL CONSIDERATIONS
This Application for approval of a Biomethane Program and Supporting Business Model is just one
of a number of projects Terasen is contemplating as means of dealing with the new environment
which has resulted from passage of recent legislation including the Clean Energy Act. A number of
other new initiatives have been outlined as being under consideration within the Company’s 2010
Long Term Resource Plan which was filed with the Commission in July of this year. Collectively,
these represent a significant departure from the role Terasen has traditionally played as a public
utility. As the Company moves forward with what is a new business model, the issue becomes how
to best reconcile those instances where it has moved to a different position on the supply side or is
undertaking activities which are more characteristic of a non monopolistic company dealing within
a competitive market. In undertaking these new initiatives questions arise as to whether they
should be allowed within a regulatory framework and where this leaves the ratepayer with respect
to who bears the risk.
This Hearing has dealt with a number of questions related to Terasen’s departure from the status
quo. Included among these are the following:
• The provision of biogas upgrading services representing a move up the supply chain.
• Principles governing the allocation of costs to ratepayers.
• The risk of stranded assets and resultant question of who pays.
In order to facilitate the process and avoid unnecessary impediments, the Commission Panel chose
to deal with this application with the understanding that it represents a test program which will
provide valuable information and answers to the question as to how best to handle this model on a
go forward basis. Accordingly, the Panel provided direction with respect to Terasen’s proposal to
own the upgrading facilities in some instances, share costs for the Program among various
ratepayer groups and place overall risk for the Program on the broad ratepayer group. However,
the Commission Panel would like to be clear that these decisions were made to facilitate the test
program only. Following the filing of the Post Implementation report, the Commission may decide
![Page 457: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/457.jpg)
63
to fully review the model and make other determinations based on the information or lack thereof
in that report.
As to the larger questions involving the impact of Terasen’s proposed new business model, the
Commission Panel does not consider it appropriate to answer these questions within the context of
this Hearing. However, we do believe that the changes being contemplated and the issues which
arise from them are significantly important to warrant a formal process to deal with them at a
future date.
![Page 458: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/458.jpg)
64
7.0 SUMMARY OF DIRECTIVES
This Summary is provided for the convenience of readers. In the event of any difference between
the Directives in this Summary and those in the body of the Decision, the wording in the Decision
shall prevail.
Directive Page
1. The Commission Panel therefore finds that the Application is consistent with British Columbia’s energy objectives and Provincial Government energy policy.
27
2. The Commission Panel accepts TGI’s estimate of its potential Biomethane supply and finds this supply to be sufficient to justify moving forward with the Biomethane Program but the Panel also acknowledges the limited data available to support this estimate.
30
3. The Commission Panel finds that TGI has proposed reasonable techniques to address the risk of Biomethane shortfalls if short‐term supply estimates are overstated. Further, the Commission Panel approves TGI’s proposal to purchase carbon offsets and to recover costs through the Biomethane Variance Account in the event of under‐supply of Biomethane, at a per gigajoule unit price not to exceed the difference between the Biomethane Energy Recovery Charge and the Commodity Cost Recovery Charge in effect at that time.
30
4. The Commission Panel finds that the research presented by Terasen supports the position that there is likely to be sufficient demand to justify moving forward with a Biomethane Program.
34
5. Accordingly, we approve the Purchase Agreements with the CSRD and Catalyst, and expenditures related to the facilities for both of these Projects.
34
6. Therefore, we have determined the scope of the Biomethane Program should be limited until such time as actual results can be analyzed and more definitive conclusions drawn.
34
![Page 459: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/459.jpg)
65
7. Accordingly, the Commission Panel directs that Terasen’s costs of the upgrading project be segregated so they may be compared with costs of other potential upgrading operations by other industry participants in the future. The Commission Panel further directs that the upgrading business be kept sufficiently distinct so as to be severable, should the Commission determine that this business ought to be conducted through a separate entity in the future.
39
8. Accordingly, we have determined that future energy supply contracts for the purchase of biogas or Biomethane that meet the criteria listed in Section 3.3.3 of these Reasons with the following additional criteria will meet the filing requirements in sections 71(1)(a) and 71(1)(b) of the Act: • The total production of Biomethane for all projects undertaken under what has
been approved in this Decision does not exceed an annual purchase in each year of 250,000 GJ.
• The maximum price for delivered Biomethane on the system is set at $15.28 per GJ.
41
9. It is in this context that the Commission Panel approves the cost allocation methodology proposed by Terasen Gas for the test period as just and reasonable.
51
10. Accordingly, the Commission Panel, to safeguard the public interest, has determined that Terasen will be granted a period of two years from the date of the Order issued concurrently with this Decision for review and preparation of further applications in support of expansion of this Program.
56
11. Within TGI’s RRA for 2012 and onwards, Terasen is directed to include a separate section providing actual and forecasted Biomethane operating, maintenance and capital costs and an analysis of these costs.
58
12. The Commission Panel approves this request as an acceptable recovery period given the nature and forecasted extent of these costs.
59
13. As part of its 2012 Revenue Requirements Application, TGI is directed to report the total values accumulated in the New Deferral Accounts from inception as well as a breakdown of the costs accumulated in the accounts by nature and dollar amount. Further, the Company is directed to present within its annual regulatory report to the Commission, the total value of each of these deferral accounts, net of any amortization. This is to be done each year until the remaining balance is $nil.
59
![Page 460: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/460.jpg)
66
14. The Panel accepts the Biomethane Energy Recovery Charge at $9.904 for all Rate Schedules effective October 1, 2010 to recover forecasted costs.
59
15. The Commission Panel approves TGI’s Biomethane new Rate Schedules 1B, 11B, 2B and 3B and the proposed amendments to existing Rate Schedule 30 as well as requested changes to TGI’s General Terms and Conditions.
61
16. In addition, the Panel directs TGI to provide to the Commission any future proposed Biomethane Rate Schedules or amendments to schedules at least 60 days in advance of their proposed effective date.
61
![Page 461: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/461.jpg)
67
DATED at the City of Vancouver, in the Province of British Columbia, this 14th day of December 2010. ___Original signed by: DENNIS A. COTE PANEL CHAIR ___Original signed by: ALISON A. RHODES COMMISSIONER ___Original signed by: LIISA A. O’HARA COMMISSIONER
![Page 462: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/462.jpg)
SIXTH FLOOR, 900 HOWE STREET, BOX 250 VANCOUVER, BC V6Z 2N3 CANADA web site: http://www.bcuc.com
TELEPHONE: (604) 660‐4700 BC TOLL FREE: 1‐800‐663‐1385 FACSIMILE: (604) 660‐1102
…/2
BRIT I SH COLUMBIA
UTIL I T I ES COMMISS ION ORDER NUMBER G‐ 194‐10
IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Application by Terasen Gas Inc. for Approval of a Biomethane Service Offering and Supporting Business Model
and for the Approval of the Salmon Arm Biomethane Project and
for the Approval the Catalyst Biomethane Project
BEFORE: D.A. Cote, Panel Chair/Commissioner A.A. Rhodes, Commissioner December 14, 2010 L.A. O’Hara, Commissioner
O R D E R WHEREAS:
A. On June 8, 2010, Terasen Gas Inc. (Terasen Gas) filed an application (the Application) for approval of rate schedules, related deferral accounts, a cost recovery mechanism and a Biomethane Energy Recovery Charge to support a Biomethane Service Offering;
B. The Application also sought approval of an expenditure schedule in respect of two Biomethane supply projects: the Salmon Arm Biomethane Project and the Catalyst Biomethane Project, and sought acceptance of the associated energy supply contracts;
C. On June 23, 2010, the Commission issued Order G‐109‐10 establishing a Written Public Hearing Process and a Regulatory Timetable;
D. The Commission has reviewed the Application, the evidence, and the submissions, and for the reasons set out in the Decision issued concurrently with this Order, concludes that the Application should be approved subject to certain additional terms and directives included in this Order and the Decision;
![Page 463: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/463.jpg)
2
…/3
BRIT I SH COLUMBIA
UTIL IT I ES COMMISS ION ORDER NUMBER G‐ 194‐10
NOW THEREFORE pursuant to the provisions of the Utilities Commission Act (the Act), the Commission orders as follows:
1. The Commission approves Rates Schedules 1B, 2B, 3B, 11B, the amended Rate Schedule 30, and the amendments to Terasen Gas’ General Terms and Conditions described in Section 6 of the Application.
2. The Commission will accept, subject to timely filing, the new Rate Schedules 1B, 11B, the amended Rate Schedule 30, and the amendments to Terasen Gas’ General Terms and Conditions, in accordance with this Order and the Decision.
3. The Commission will accept for filing, on or after January 1, 2012, the new Rate Schedules 2B and 3B in accordance with this Order and the Decision.
4. The cost allocations, deferral accounts, and accounting treatment for the costs associated with the Biomethane Program requested by Terasen Gas and described in Section 10 of the Application are approved as described in the accompanying Decision.
5. Terasen Gas may purchase carbon offsets and recover the costs through the Biomethane Variance Account in the event of under‐supply of Biomethane, at a per gigajoule unit price not exceeding the difference between the Biomethane Energy Recovery Charge and the Commodity Cost Recovery Charge in effect at that time.
6. The Biomethane Energy Recovery Charge is set at $9.904/GJ effective October 1, 2010.
7. Pursuant to section 71 of the Act, the following energy supply contracts are accepted as filed:
• the Purchase of Biogas Agreement with the Columbia Shushwap Regional District; and • the Purchase of Biogas Agreement with Catalyst Power Incorporated.
8. Pursuant to subsection 44.2(3) of the Act, the following expenditures are in the public interest and are accepted:
• the expenditures relating to the facilities required for the Salmon Arm Project; and • the expenditures relating to the facilities required for the Catalyst Project.
9. Future Biomethane Program supply contracts for the purchase of biogas or Biomethane filed with the Commission that meet the criteria described in Section 8 of the Application (p. 80), with the following changes and additions, meet the filing requirements described in sections 71(1)(a) and 71(1)(b) of the Act :
i. The total production of Biomethane from all projects undertaken under what has been approved in this Decision does not exceed an annual purchase of 250,000GJ;
![Page 464: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/464.jpg)
3
Orders/G‐194‐10_TGI‐Biomethane Service Offering
BRIT I SH COLUMBIA
UTIL IT I ES COMMISS ION ORDER NUMBER G‐ 194‐10
ii. The Maximum price for delivered Biomethane on the system is set at $15.28.
10. Terasen Gas is directed to:
• Maintain separate records of project costs related to Biomethane upgrading facilities to allow for cost comparisons to other upgrading operations;
• Keep the Biomethane upgrading process sufficiently distinct so as to be severable should the Commission determine that this business ought to be conducted through a separate entity in the future;
• Include in its next Revenue Requirements Application, in accordance with this Order and the Decision, details of costs for all deferral accounts created by this Order;
• Provide to the Commission any future proposed Biomethane rate schedules, or amendments to schedules, at least 60 days in advance of their proposed effective date;
• File a Post‐Implementation Report that provides the information described in Section 8.4.4 of the Application within 2 years of the date of this Order;
• Hold a post‐implementation Workshop for the interveners in this proceeding and any interested stakeholders at which it will address the contents of the Post‐Implementation Report; and
• Comply with all other directives in the Decision.
DATED at the City of Vancouver, in the Province of British Columbia, this 14th day of December, 2010.
BY ORDER Original signed by: D.A. Cote Panel Chair/Commissioner
![Page 465: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/465.jpg)
APPENDIX A Page 1 of 3
APPROVALS SOUGHT Rate Related Orders 1. An order pursuant to sections 59‐61 of the Act approving:
(a) the new Rate Schedules 1B, 11B, and the amendments to Rate Schedule 30;
(b) the new Rate Schedules 2B and 3B effective upon filing of the rate schedules with the Commission, but in any event not before January 1, 2012;
(c) the proposed amendments to Terasen Gas’ General Terms and Conditions, specifically, the
addition of new definitions relating to the Biomethane Service, and the introduction of a Section 28 – Biomethane Service.
Cost Recovery Related Orders (All Customers) 2. An order pursuant to sections 59‐61 of the Act approving:
(a) the allocation of costs to all customers and the accounting treatment of those costs as described in Section 10 of the Application.
(b) a non‐rate base deferral account attracting AFUDC to capture the O&M costs applicable to
all customers incurred prior to January 1, 2012, and to recover these costs from all non‐bypass customers by amortizing them through delivery rates commencing January 1, 2012 over a three year period.
(c) a non‐rate base deferral account to capture the cost of service associated with the capital
additions to the delivery system incurred prior to January 1, 2012, and to recover these costs from all non‐bypass customers by amortizing them through delivery rates commencing January 1, 2012 over a three year period.
Cost Recovery Related Orders 3. An order pursuant to sections 59‐61 of the Act approving:
(a) the allocation of costs to Biomethane Program customers and the accounting treatment of those costs as described in Section 10.6 of the Application.
![Page 466: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/466.jpg)
APPENDIX A Page 2 of 3
(b) the cost recovery methodology applicable to Biogas processing related assets.
(c) a rate base deferral account to capture the costs incurred by Terasen Gas to procure and process consumable Biomethane gas and the revenues collected through the Biomethane energy recovery component of rates, and thereby accumulate any differences (the “Biomethane Variance Account”).
(d) the Biomethane Variance Account balance quarterly reporting process and the Biomethane
Energy Recovery Charge rate setting mechanism on a basis consistent with the Company’s existing gas cost reporting and rate setting mechanisms, as described in Section 10.7 of the Application.
(e) Terasen Gas purchasing carbon offsets and recovering the costs through the Biomethane
Variance Account in the event of under‐supply of Biomethane, at a per gigajoule unit price not to exceed the difference between the Biomethane Energy Recovery Charge and the Commodity Cost Recovery Charge in effect at that time.
(f) the Biomethane Energy Recovery Charge at $9.904/GJ effective October 1, 2010.
Supply Project Related Orders 4. An order pursuant to section 71 of the Act accepting as filed:
(a) the Purchase of Biogas Agreement with the CSRD; and
(b) the Purchase of Biogas Agreement with Catalyst Power Incorporated. 5. An order pursuant to section 44.2 of the Act that the following capital expenditures are
accepted by the Commission and are in the public interest:
(a) The expenditures relating to the facilities required for the Salmon Arm Project described at Table 9‐1 of the Application; and
(b) The expenditures relating to the facilities required for the Catalyst Project described at
Table 9‐4 of the Application. 6. An order that future supply contracts for the purchase of Biogas or Biomethane filed with the
Commission that meet the criteria described in Section 8.4, meet the filing requirements in sections 71(1)(a) and 71(1)(b) of the Act.
![Page 467: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/467.jpg)
APPENDIX A Page 3 of 3
Post‐Implementation Review Orders 7. A direction that Terasen Gas, within 5 years of the date of this order:
(a) file a Post‐implementation Report that provides the information described in Section 8.4.4 of the Application; and
(b) hold a Post‐implementation Workshop, to be attended by Terasen Gas, and any interested
stakeholders and interveners, at which Terasen Gas will address the contents of the Post‐implementation Report.
![Page 468: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/468.jpg)
APPENDIX B Page 1 of 1
THE REGULATORY PROCESS
By Order G‐109‐10 dated June 24, 2010, the Commission established a written hearing process and the following Timetable.
ACTION DATE (2010)
Workshop Thursday, June 24
Intervener Registration Deadline Monday, July 5
Commission Information Request No. 1 Friday, July 16
Intervener Information Requests No. 1 Friday, July 23
Terasen Responses to Information Requests No. 1 Friday, August 6
Commission Information Request No. 2 Friday, August 20
Intervener Information Requests No. 2 Monday, August 23
Terasen Response to Information Requests No. 2 Friday, September 3
Terasen Written Final Submission Friday, September 10
Intervener Written Final Submissions Monday, September 20
Terasen Written Reply Submission Tuesday, September 28
Oral Argument (if Required) Friday, October 8
The Commission received Final Submissions from:
• Terasen on September 10, 2010
• CEC on September 20, 2010
• BC Hydro on September 20, 2010
• BCSEA on September 20, 2010
• BCOAPO on September 21, 2010
Terasen submitted its Reply Submission responding to final submissions of CEC, BC Hydro, BCSEA and BCOAPO on September 27, 2010.
![Page 469: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/469.jpg)
APPENDIX C Page 1 of 4
IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Terasen Gas Inc. Application for Approval of a Biomethane Service Offering,
Supporting Business Model, for the Approval of the Salmon Arm Biomethane Project and for the Approval the Catalyst Biomethane Project
EXHIBIT LIST
Exhibit No. Description COMMISSION DOCUMENTS A‐1 Letter dated June 10, 2010 – Commission comments on the Application and Notice
of Workshop
A‐2 Letter dated June 24, 2010 – Regulatory Timetable
A‐3 Letter dated June 25, 2010 – Appointment of Commission Panel
A‐4 Letter dated July 5, 2010 – Release of Confidential Application Documents to BC Bioenergy Network
A‐5 Letter dated July 16, 2010 – Commission Information Request No. 1
A‐6 Letter dated August 20, 2010 – Commission Information Request No. 2
A‐7 Letter dated October 4, 2010 – Cancellation of Oral Argument scheduled for Friday, October 8, 2010
APPLICANT DOCUMENTS TGI B‐1 TERASEN GAS INC. (TGI) Letter Dated June 8, 2010 ‐ Application for Approval of a
Biomethane Service Offering and Supporting Business Model, for the Approval of the Salmon Arm Biomethane Project and for the Approval the Catalyst Biomethane Project
B‐1‐1 Letter dated June 23, 2010 – Filing errata to the application
![Page 470: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/470.jpg)
APPENDIX C Page 2 of 4 Exhibit No. Description B‐1‐2 Confidential Letter dated June 8, 2010 – TGI CONFIDENTIAL Appendices I J‐3 to the
Application
B‐1‐3 Confidential Letter dated September 1, 2010 ‐ TGI CONFIDENTIAL Contract Amendment to Confidential Appendix I‐2
B‐2 Letter dated June 25, 2010 ‐ Workshop Presentation Materials
B‐2‐1 Letter dated July 8, 2010 – Response to Workshop Undertaking
B‐3 Letter dated August 6, 2010 ‐ TGI Response to BCUC IR No. 1
B‐3‐1 CONFIDENTIAL Letter dated August 6, 2010 ‐ TGI CONFIDENTIAL Response to BCUC IR No. 1
B‐4 Letter dated August 6, 2010 ‐ TGI Response to BCOAPO IR No. 1
B‐4‐1 CONFIDENTIAL Letter dated August 6, 2010 ‐ TGI CONFIDENTIAL Response to BCOAPO IR No. 1
B‐5 Letter dated August 6, 2010 ‐ TGI Response to BCSEA IR No. 1
B‐5‐1 CONFIDENTIAL Letter dated August 6, 2010 ‐ TGI CONFIDENTIAL Response to BCSEA IR No. 1
B‐6 Letter dated August 6, 2010 ‐ TGI Response to CEC IR No. 1
B‐7 Letter dated August 17, 2010 ‐ TGI Response to BCSEA IR No1.20.2
B‐8 Letter dated August 17, 2010 ‐ TGI Response to CEC IR No1.10.1‐2
B‐9 Letter dated August 17, 2010 ‐ TGI Response to BCUC IR No. 1 Attachment 43.1.6 Redacted
B‐10 Letter dated September 2, 2010 – TGI Response to BCUC IR No. 2
B‐11 Letter dated September 2, 2010 – TGI Response to BCOAPO IR No. 2
B‐12 Letter dated September 2, 2010 – TGI Response to BCSEA IR No. 2
B‐13 Letter dated September 2, 2010 – TGI Response to CEC IR No. 2
![Page 471: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/471.jpg)
APPENDIX C Page 3 of 4
Exhibit No. Description INTERVENER DOCUMENTS C1‐1 CATALYST POWER INC. (CP) Online registration dated June 16, 2010 – Requesting
Intervener status by Christopher Bush
C2‐1 BC AGRICULTURE COUNCIL (BCAC) Online registration dated June 16, 2010 – Requesting Intervener status by Mathew Dickson
C3‐1 BC BIOENERGY NETWORK (BCBN) Online registration dated June 23, 2010 – Requesting Intervener status by Sandy Ferguson
C3‐2 Letter dated June 23, 2010 – BCBN Filing Undertaking of Confidentiality by Sandra Ferguson
C3‐3 Letter dated June 23, 2010 – BCBN Filing Undertaking of Confidentiality by Michael Weedon
C3‐4 Online registration dated June 24, 2010 – BCBN addition of Michael Weedon
C4‐1 BRITISH COLUMBIA HYDRO AND POWER AUTHORITY (BC HYDRO) ‐ Online registration dated June 23, 2010 – Requesting Intervener status by Tatiana Noskova
C5‐1 BRITISH COLUMBIA OLD AGE PENSIONERS’ ORGANIZATION (BCOAPO) VIA EMAIL Letter Dated June 23, 2010 ‐ Request for Intervener Status by Jim Quail and James Wightman
C5‐2 Letter Dated July 23, 2010 ‐ BCOAPO Information Request No. 1
C5‐3 Letter Dated August 23, 2010 ‐ BCOAPO Information Request No. 2
C6‐1
ELEMENTAL ENERGY INC. (EEI) ‐ Online registration dated June 25, 2010 – Requesting Intervener status by Richard Hopp
C7‐1
COMMERCIAL ENERGY CONSUMERS ASSOCIATION (CEC)‐Letter dated June 29, 2010 – Requesting Intervener Status
C7‐2 Letter Dated July 23, 2010 ‐ CEC Information Request No. 1
C7‐3 Letter Dated August 23, 2010 ‐ CEC Information Request No. 2
C8‐1
BC SUSTAINABLE ENERGY ASSOCIATION (BCSEA)‐Letter dated July 5, 2010 – Requesting Intervener Status
C8‐2 Letter dated July 7, 2010 – Advising that W.J. Andrews to serve as their counsel
C8‐3 Letter Dated July 21, 2010 ‐ BCSEA Information Request No. 1
![Page 472: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/472.jpg)
APPENDIX C Page 4 of 4 Exhibit No. Description C8‐4 Letter Dated August 23, 2010 ‐ BCSEA Information Request No. 2
C9‐1 BP CANADA ENERGY COMPANY (BPE) Online registration dated July 6, 2010 – Requesting Intervener status by Cheryl Worthy
INTERESTED PARTY DOCUMENTS D‐1 UNION GAS LIMITED (UGL) Online registration dated June 16, 2010 ‐ Request for
Interested Party Status by Patrick McMahon
D‐2 FLOTECH SERVICES NA, LTD (FLOTECH) Online registration dated June 17, 2010 ‐ Request for Interested Party Status by Sean Mezei
D‐3 ENBRIDGE GAS DISTRIBUTION INC. Online registration dated June 17, 2010 ‐ Request for Interested Party Status by Lesley Austin
D‐4 LIFE SCIENCES BC (LSBC) Online registration dated June 24, 2010 ‐ Request for Interested Party Status by Bob Ingratta
D‐5 MANITOBA HYDRO (MH) Online registration dated June 29, 2010 ‐ Request for Interested Party Status by Ashley Jansen
LETTERS OF COMMENT E‐1 MINISTRY OF ENERGY, MINES AND PETROLEUM RESOURCES – Letter dated August 3, 2010
supporting TGI’s Application
![Page 473: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/473.jpg)
APPENDIX D Page 1 of 2
LIST OF ACRONYMS
BCBN BC Bioenergy Network
BCOAPO BC Old Age Pensioners’ Organization, BC Coalition of People with Disabilities, Council of Senior Citizens’ Organizations of BC, federated anti‐poverty groups of BC, and Tenant Resource and Advisory Centre
BCSEA BC Sustainable Energy Association
BERC Biomethane Energy Recovery Charge
BVA Biomethane Variance Account
BC British Columbia
BC Hydro British Columbia Hydro and Power Authority
Commission, BCUC British Columbia Utilities Commission
CEA Clean Energy Act
CEC Commercial Energy Consumers Association of British Columbia
Catalyst Catalyst Power Incorporated
CSRD Columbia Shuswap Regional District
COS cost of service
CWLP Customer Works LP
DGE Dockside Green Energy
GHG Greenhouse Gas
GJ gigajoule
ICE Innovative Clean Energy
IT Information and Technology
NREL National Renewable Energy Laboratory
O & M Operating and Maintenance
![Page 474: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/474.jpg)
APPENDIX D Page 2 of 2 PJ petajoule
RIB Residential Inclining Block
RRA Revenue Requirements Application
SEFCDES South East False Creek District Energy System
Terasen, TGI or the Company Terasen Gas Inc.
the Act or UCA Utilities Commission Act
![Page 475: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/475.jpg)
APPENDIX E Page 1 of 6
SECTIONS OF UTILITIES COMMISSION ACT
Section 44.2 states: Expenditure schedule
44.2 (1) A public utility may file with the commission an expenditure schedule containing
one or more of the following:
(a) a statement of the expenditures on demand‐side measures the public utility has made or
anticipates making during the period addressed by the schedule;
(b) a statement of capital expenditures the public utility has made or anticipates making
during the period addressed by the schedule;
(c) a statement of expenditures the public utility has made or anticipates making during the
period addressed by the schedule to acquire energy from other persons.
(2) The commission may not consent under section 61 (2) to an amendment to or a
rescission of a schedule filed under section 61 (1) to the extent that the amendment
or the rescission is for the purpose of recovering expenditures referred to in
subsection (1) (a) of this section, unless
(a) the expenditure is the subject of a schedule filed and accepted under this section, or
(b) the amendment or rescission is for the purpose of setting an interim rate.
(3) After reviewing an expenditure schedule submitted under subsection (1), the
commission, subject to subsections (5), (5.1) and (6), must
(a) accept the schedule, if the commission considers that making the expenditures referred
to in the schedule would be in the public interest, or
(b) reject the schedule.
(4) The commission may accept or reject, under subsection (3), a part of a schedule.
(5) In considering whether to accept an expenditure schedule filed by a public utility other
than the authority, the commission must consider
(a) the applicable of British Columbia's energy objectives,
![Page 476: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/476.jpg)
APPENDIX E Page 2 of 6
(b) the most recent long‐term resource plan filed by the public utility under section 44.1, if
any,
(c) the extent to which the plan is consistent with the applicable requirements under
sections 6 and 19 of the Clean Energy Act,
(d) if the schedule includes expenditures on demand‐side measures, whether the demand‐
side measures are cost‐effective within the meaning prescribed by regulation, if any,
and
(e) the interests of persons in British Columbia who receive or may receive service from the
public utility.
(5.1) In considering whether to accept an expenditure schedule filed by the authority, the
commission, in addition to considering the interests of persons in British Columbia
who receive or may receive service from the authority, must consider and be guided
by
(a) British Columbia's energy objectives,
(b) an applicable integrated resource plan approved under section 4 of the Clean Energy
Act,
(c) the extent to which the schedule is consistent with the requirements under section 19 of
the Clean Energy Act, and
(d) if the schedule includes expenditures on demand‐side measures, the extent to which the
demand‐side measures are cost‐effective within the meaning prescribed by
regulation, if any.
(6) If the commission considers that an expenditure in an expenditure schedule was
determined to be in the public interest in the course of determining that a long‐term
resource plan was in the public interest under section 44.1 (6),
(a) subsection (5) of this section does not apply with respect to that expenditure, and
(b) the commission must accept under subsection (3) the expenditure in the expenditure
schedule.
![Page 477: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/477.jpg)
APPENDIX E Page 3 of 6
Section 59 states: Discrimination in rates
59 (1) A public utility must not make, demand or receive
(a) an unjust, unreasonable, unduly discriminatory or unduly preferential rate for a
service provided by it in British Columbia, or
(b) a rate that otherwise contravenes this Act, the regulations, orders of the
commission or any other law.
(2) A public utility must not
(a) as to rate or service, subject any person or locality, or a particular description of
traffic, to an undue prejudice or disadvantage, or
(b) extend to any person a form of agreement, a rule or a facility or privilege, unless
the agreement, rule, facility or privilege is regularly and uniformly extended to all
persons under substantially similar circumstances and conditions for service of the
same description.
(3) The commission may, by regulation, declare the circumstances and conditions that
are substantially similar for the purpose of subsection (2) (b).
(4) It is a question of fact, of which the commission is the sole judge,
(a) whether a rate is unjust or unreasonable,
(b) whether, in any case, there is undue discrimination, preference, prejudice or
disadvantage in respect of a rate or service, or
(c) whether a service is offered or provided under substantially similar circumstances
and conditions.
(5) In this section, a rate is "unjust" or "unreasonable" if the rate is
(a) more than a fair and reasonable charge for service of the nature and quality
provided by the utility,
![Page 478: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/478.jpg)
APPENDIX E Page 4 of 6
(b) insufficient to yield a fair and reasonable compensation for the service provided
by the utility, or a fair and reasonable return on the appraised value of its property,
or
(c) unjust and unreasonable for any other reason.
Section 60 states: Setting of rates
60 (1) In setting a rate under this Act
(a) the commission must consider all matters that it considers proper and relevant
affecting the rate,
(b) the commission must have due regard to the setting of a rate that
(i) is not unjust or unreasonable within the meaning of section 59,
(ii) provides to the public utility for which the rate is set a fair and reasonable
return on any expenditure made by it to reduce energy demands, and
(iii) encourages public utilities to increase efficiency, reduce costs and enhance
performance,
(b.1) the commission may use any mechanism, formula or other method of setting
the rate that it considers advisable, and may order that the rate derived from such a
mechanism, formula or other method is to remain in effect for a specified period,
and
(c) if the public utility provides more than one class of service, the commission must
(i) segregate the various kinds of service into distinct classes of service,
(ii) in setting a rate to be charged for the particular service provided, consider
each distinct class of service as a self contained unit, and
(iii) set a rate for each unit that it considers to be just and reasonable for that
unit, without regard to the rates fixed for any other unit.
![Page 479: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/479.jpg)
APPENDIX E Page 5 of 6
(2) In setting a rate under this Act, the commission may take into account a distinct or
special area served by a public utility with a view to ensuring, so far as the commission
considers it advisable, that the rate applicable in each area is adequate to yield a fair
and reasonable return on the appraised value of the plant or system of the public utility
used, or prudently and reasonably acquired, for the purpose of providing the service in
that special area.
(3) If the commission takes a special area into account under subsection (2), it must
have regard to the special considerations applicable to an area that is sparsely settled or
has other distinctive characteristics.
(4) For this section, the commission must exclude from the appraised value of the
property of the public utility any franchise, licence, permit or concession obtained or
held by the utility from a municipal or other public authority beyond the money, if any,
paid to the municipality or public authority as consideration for that franchise, licence,
permit or concession, together with necessary and reasonable expenses in procuring the
franchise, licence, permit or concession. Section 61 states:
Rate schedules to be filed with commission
61 (1) A public utility must file with the commission, under rules the commission specifies
and within the time and in the form required by the commission, schedules showing
all rates established by it and collected, charged or enforced or to be collected or
enforced.
(2) A schedule filed under subsection (1) must not be rescinded or amended without
the commission's consent.
(3) The rates in schedules as filed and as amended in accordance with this Act and the
regulations are the only lawful, enforceable and collectable rates of the public utility
filing them, and no other rate may be collected, charged or enforced.
![Page 480: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/480.jpg)
APPENDIX E Page 6 of 6
(4) A public utility may file with the commission a new schedule of rates that the utility
considers to be made necessary by a rise in the price, over which the utility has no
effective control, required to be paid by the public utility for its gas supplies, other
energy supplied to it, or expenses and taxes, and the new schedule may be put into
effect by the public utility on receiving the approval of the commission.
(5) Within 60 days after the date it approves a new schedule under subsection (4), the
commission may,
(a) on complaint of a person whose interests are affected, or
(b) on its own motion,
direct an inquiry into the new schedule of rates having regard to the fixing of a rate
that is not unjust or unreasonable.
(6) After an inquiry under subsection (5), the commission may
(a) rescind or vary the increase and order a refund or customer credit by the utility of
all or part of the money received by way of increase, or
(b) confirm the increase or part of it.
![Page 481: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/481.jpg)
SUPREME COURT OF CANADA
CITATION: ATCO Gas & Pipelines Ltd. v. Alberta (Energy &Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4
DATE: 20060209DOCKET: 30247
BETWEEN:City of Calgary
Appellant/Respondent on cross-appealv.
ATCO Gas and Pipelines Ltd.Respondent/Appellant on cross-appeal
- and -Alberta Energy and Utilities Board,
Ontario Energy Board, Enbridge GasDistribution Inc. and Union Gas Limited
Interveners
CORAM: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.
REASONS FOR JUDGMENT: (paras. 1 to 87)
DISSENTING REASONS:(paras. 88 to 149)
Bastarache J. (LeBel, Deschamps and Charron JJ.concurring)
Binnie J. (McLachlin C.J. and Fish J. concurring)
______________________________
2006
SC
C 4
(C
anLI
I)
![Page 482: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/482.jpg)
ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R.
140, 2006 SCC 4
City of Calgary Appellant/Respondent on cross-appeal
v.
ATCO Gas and Pipelines Ltd. Respondent/Appellant on cross-appeal
and
Alberta Energy and Utilities Board, Ontario Energy Board, Enbridge Gas Distribution Inc. and Union Gas Limited Interveners
Indexed as: ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board)
Neutral citation: 2006 SCC 4.
File No.: 30247.
2005: May 11; 2006: February 9.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish andCharron JJ.
on appeal from the court of appeal for alberta
2006
SC
C 4
(C
anLI
I)
![Page 483: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/483.jpg)
(- 2 -
Administrative law — Boards and tribunals — Regulatory boards —
Jurisdiction — Doctrine of jurisdiction by necessary implication — Natural gas public
utility applying to Alberta Energy and Utilities Board to approve sale of buildings and
land no longer required in supplying natural gas — Board approving sale subject to
condition that portion of sale proceeds be allocated to ratepaying customers of utility
— Whether Board had explicit or implicit jurisdiction to allocate proceeds of sale — If
so, whether Board’s decision to exercise discretion to protect public interest by
allocating proceeds of utility asset sale to customers reasonable — Alberta Energy and
Utilities Board Act, R.S.A. 2000, c. A-17, s. 15(3) — Public Utilities Board Act, R.S.A.
2000, c. P-45, s. 37 — Gas Utilities Act, R.S.A. 2000, c. G-5, s. 26(2).
Administrative law — Judicial review — Standard of review — Alberta
Energy and Utilities Board — Standard of review applicable to Board’s jurisdiction to
allocate proceeds from sale of public utility assets to ratepayers — Standard of review
applicable to Board’s decision to exercise discretion to allocate proceeds of sale —
Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17, s. 15(3) — Public Utilities
Board Act, R.S.A. 2000, c. P-45, s. 37 — Gas Utilities Act, R.S.A. 2000, c. G-5, s. 26(2).
ATCO is a public utility in Alberta which delivers natural gas. A division
of ATCO filed an application with the Alberta Energy and Utilities Board for approval
of the sale of buildings and land located in Calgary, as required by the Gas Utilities Act
(“GUA”). According to ATCO, the property was no longer used or useful for the
provision of utility services, and the sale would not cause any harm to ratepaying
customers. ATCO requested that the Board approve the sale transaction, as well as the
proposed disposition of the sale proceeds: to retire the remaining book value of the sold
assets, to recover the disposition costs, and to recognize that the balance of the profits
2006
SC
C 4
(C
anLI
I)
![Page 484: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/484.jpg)
(- 3 -
resulting from the sale should be paid to ATCO’s shareholders. The customers’ interests
were represented by the City of Calgary, who opposed ATCO’s position with respect to
the disposition of the sale proceeds to shareholders.
Persuaded that customers would not be harmed by the sale, the Board
approved the sale transaction on the basis that customers would not “be exposed to the
risk of financial harm as a result of the Sale that could not be examined in a future
proceeding”. In a second decision, the Board determined the allocation of net sale
proceeds. The Board held that it had the jurisdiction to approve a proposed disposition
of sale proceeds subject to appropriate conditions to protect the public interest, pursuant
to the powers granted to it under s. 15(3) of the Alberta Energy and Utilities Board Act
(“AEUBA”). The Board applied a formula which recognizes profits realized when
proceeds of sale exceed the original cost can be shared between customers and
shareholders, and allocated a portion of the net gain on the sale to the ratepaying
customers. The Alberta Court of Appeal set aside the Board’s decision, referring the
matter back to the Board to allocate the entire remainder of the proceeds to ATCO.
Held (McLachlin C.J. and Binnie and Fish JJ. dissenting): The appeal is
dismissed and the cross-appeal is allowed.
Per Bastarache, LeBel, Deschamps and Charron JJ.: When the relevant
factors of the pragmatic and functional approach are properly considered, the standard
of review applicable to the Board’s decision on the issue of jurisdiction is correctness.
Here, the Board did not have the jurisdiction to allocate the proceeds of the sale of the
utility’s asset. The Court of Appeal made no error of fact or law when it concluded that
the Board acted beyond its jurisdiction by misapprehending its statutory and common
2006
SC
C 4
(C
anLI
I)
![Page 485: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/485.jpg)
(- 4 -
law authority. However, the Court of Appeal erred when it did not go on to conclude
that the Board has no jurisdiction to allocate any portion of the proceeds of sale of the
property to ratepayers. [21-34]
The interpretation of the AEUBA, the Public Utilities Board Act (“PUBA”)
and the GUA can lead to only one conclusion: the Board does not have the prerogative
to decide on the distribution of the net gain from the sale of assets of a utility. On their
grammatical and ordinary meaning, s. 26(2) GUA, s. 15(3) AEUBA and s. 37 PUBA are
silent as to the Board’s power to deal with sale proceeds. Section 26(2) GUA conferred
on the Board the power to approve a transaction without more. The intended meaning
of the Board’s power pursuant to s. 15(3) AEUBA to impose conditions on an order that
the Board considers necessary in the public interest, as well as the general power in s. 37
PUBA, is lost when the provisions are read in isolation. They are, on their own, vague
and open-ended. It would be absurd to allow the Board an unfettered discretion to attach
any condition it wishes to any order it makes. While the concept of “public interest” is
very wide and elastic, the Board cannot be given total discretion over its limitations.
These seemingly broad powers must be interpreted within the entire context of the
statutes which are meant to balance the need to protect consumers as well as the property
rights retained by owners, as recognized in a free market economy. The context
indicates that the limits of the Board’s powers are grounded in its main function of fixing
just and reasonable rates and in protecting the integrity and dependability of the supply
system. [7] [41] [43] [46]
An examination of the historical background of public utilities regulation in
Alberta generally, and the legislation in respect of the powers of the Alberta Energy and
Utilities Board in particular, reveals that nowhere is there a mention of the authority for
2006
SC
C 4
(C
anLI
I)
![Page 486: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/486.jpg)
(- 5 -
the Board to allocate proceeds from a sale or the discretion of the Board to interfere with
ownership rights. Moreover, although the Board may seem to possess a variety of
powers and functions, it is manifest from a reading of the AEUBA, the PUBA and the
GUA that the principal function of the Board in respect of public utilities, is the
determination of rates. Its power to supervise the finances of these companies and their
operations, although wide, is in practice incidental to fixing rates. The goals of
sustainability, equity and efficiency, which underlie the reasoning as to how rates are
fixed, have resulted in an economic and social arrangement which ensures that all
customers have access to the utility at a fair price — nothing more. The rates paid by
customers do not incorporate acquiring ownership or control of the utility’s assets. The
object of the statutes is to protect both the customer and the investor, and the Board’s
responsibility is to maintain a tariff that enhances the economic benefits to consumers
and investors of the utility. This well-balanced regulatory arrangement does not,
however, cancel the private nature of the utility. The fact that the utility is given the
opportunity to make a profit on its services and a fair return on its investment in its
assets should not and cannot stop the utility from benefiting from the profits which
follow the sale of assets. Neither is the utility protected from losses incurred from the
sale of assets. The Board misdirected itself by confusing the interests of the customers
in obtaining safe and efficient utility service with an interest in the underlying assets
owned only by the utility. [54-69]
Not only is the power to allocate the proceeds of the sale absent from the
explicit language of the legislation, but it cannot be implied from the statutory regime
as necessarily incidental to the explicit powers. For the doctrine of jurisdiction by
necessary implication to apply, there must be evidence that the exercise of that power
is a practical necessity for the Board to accomplish the objects prescribed by the
2006
SC
C 4
(C
anLI
I)
![Page 487: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/487.jpg)
(- 6 -
legislature, something which is absent in this case. Not only is the authority to attach a
condition to allocate the proceeds of a sale to a particular party unnecessary for the
Board to accomplish its role, but deciding otherwise would lead to the conclusion that
broadly drawn powers, such as those found in the AEUBA, the GUA and the PUBA, can
be interpreted so as to encroach on the economic freedom of the utility, depriving it of
its rights. If the Alberta legislature wishes to confer on ratepayers the economic benefits
resulting from the sale of utility assets, it can expressly provide for this in the legislation.
[39] [77-80]
Notwithstanding the conclusion that the Board lacked jurisdiction, its
decision to exercise its discretion to protect the public interest by allocating the sale
proceeds as it did to ratepaying customers did not meet a reasonable standard. When it
explicitly concluded that no harm would ensue to customers from the sale of the asset,
the Board did not identify any public interest which required protection and there was,
therefore, nothing to trigger the exercise of the discretion to allocate the proceeds of sale.
Finally, it cannot be concluded that the Board’s allocation was reasonable when it
wrongly assumed that ratepayers had acquired a proprietary interest in the utility’s assets
because assets were a factor in the rate-setting process. [82-85]
Per McLachlin C.J. and Binnie and Fish JJ. (dissenting): The Board’s
decision should be restored. Section 15(3) AEUBA authorized the Board, in dealing
with ATCO’s application to approve the sale of the subject land and buildings, to
“impose any additional conditions that the Board considers necessary in the public
interest”. In the exercise of that authority, and having regard to the Board’s “general
supervision over all gas utilities, and the owners of them” pursuant to s. 22(1) GUA, the
Board made an allocation of the net gain for public policy reasons. The Board’s
2006
SC
C 4
(C
anLI
I)
![Page 488: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/488.jpg)
(- 7 -
discretion is not unlimited and must be exercised in good faith for its intended purpose.
Here, in allocating one third of the net gain to ATCO and two thirds to the rate base, the
Board explained that it was proper to balance the interests of both shareholders and
ratepayers. In the Board’s view to award the entire gain to the ratepayers would deny
the utility an incentive to increase its efficiency and reduce its costs, but on the other
hand to award the entire gain to the utility might encourage speculation in
non-depreciable property or motivate the utility to identify and dispose of properties
which have appreciated for reasons other than the best interest of the regulated business.
Although it was open to the Board to allow ATCO’s application for the entire profit, the
solution it adopted in this case is well within the range of reasonable options. The
“public interest” is largely and inherently a matter of opinion and discretion. While the
statutory framework of utilities regulation varies from jurisdiction to jurisdiction,
Alberta’s grant of authority to its Board is more generous than most. The Court should
not substitute its own view of what is “necessary in the public interest”. The Board’s
decision made in the exercise of its jurisdiction was within the range of established
regulatory opinion, whether the proper standard of review in that regard is patent
unreasonableness or simple reasonableness. [91-92] [98-99] [110] [113] [122] [148]
ATCO’s submission that an allocation of profit to the customers would
amount to a confiscation of the corporation’s property overlooks the obvious difference
between investment in an unregulated business and investment in a regulated utility
where the ratepayers carry the costs and the regulator sets the return on investment, not
the marketplace. The Board’s response cannot be considered “confiscatory” in any
proper use of the term, and is well within the range of what is regarded in comparable
jurisdictions as an appropriate regulatory allocation of the gain on sale of land whose
original investment has been included by the utility itself in its rate base. Similarly,
2006
SC
C 4
(C
anLI
I)
![Page 489: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/489.jpg)
(- 8 -
ATCO’s argument that the Board engaged in impermissible retroactive rate making
should not be accepted. The Board proposed to apply a portion of the expected profit
to future rate making. The effect of the order is prospective not retroactive. Fixing the
going-forward rate of return, as well as general supervision of “all gas utilities, and the
owners of them”, were matters squarely within the Board’s statutory mandate. ATCO
also submits in its cross-appeal that the Court of Appeal erred in drawing a distinction
between gains on sale of land whose original cost is not depreciated and depreciated
property, such as buildings. A review of regulatory practice shows that many, but not
all, regulators reject the relevance of this distinction. The point is not that the regulator
must reject any such distinction but, rather, that the distinction does not have the
controlling weight as contended by ATCO. In Alberta, it is up to the Board to determine
what allocations are necessary in the public interest as conditions of the approval of sale.
Finally, ATCO’s contention that it alone is burdened with the risk on land that declines
in value overlooks the fact that in a falling market the utility continues to be entitled to
a rate of return on its original investment, even if the market value at the time is
substantially less than its original investment. Further, it seems such losses are taken
into account in the ongoing rate-setting process. [93] [123-147]
Cases Cited
By Bastarache J.
Referred to: Re ATCO Gas-North, Alta. E.U.B., Decision 2001-65, July 31,
2001; TransAlta Utilities Corp. v. Public Utilities Board (Alta.) (1986), 68 A.R. 171;
Re TransAlta Utilities Corp., Alta. E.U.B., Decision 2000-41, July 5, 2000;
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R.
2006
SC
C 4
(C
anLI
I)
![Page 490: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/490.jpg)
(- 9 -
982; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1
S.C.R. 485, 2004 SCC 19; Consumers’ Gas Co. v. Ontario (Energy Board), [2001] O.J.
No. 5024 (QL); Coalition of Citizens Impacted by the Caroline Shell Plant v. Alberta
(Energy Utilities Board) (1996), 41 Alta. L.R. (3d) 374; Atco Ltd. v. Calgary Power Ltd.,
[1982] 2 S.C.R. 557; Dome Petroleum Ltd. v. Public Utilities Board (Alberta) (1976),
2 A.R. 453, aff’d [1977] 2 S.C.R. 822; Barrie Public Utilities v. Canadian Cable
Television Assn., [2003] 1 S.C.R. 476, 2003 SCC 28; Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559,
2002 SCC 42; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25;
Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6; Contino v.
Leonelli-Contino, [2005] 3 S.C.R. 217, 2005 SCC 63; Re Alberta Government
Telephones, Alta. P.U.B., Decision No. E84081, June 29, 1984; Re TransAlta Utilities
Corp., Alta. P.U.B., Decision No. E84116, October 12, 1984; TransAlta Utilities Corp.
(Re), [2002] A.E.U.B.D. No. 30 (QL); ATCO Electric Ltd. (Re), [2003] A.E.U.B.D.
No. 92 (QL); Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993]
3 S.C.R. 724; Bristol-Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R.
533, 2005 SCC 26; Chieu v. Canada (Minister of Citizenship and Immigration), [2002]
1 S.C.R. 84, 2002 SCC 3; Bell Canada v. Canada (Canadian Radio-Television and
Telecommunications Commission), [1989] 1 S.C.R. 1722; R. v. McIntosh, [1995] 1
S.C.R. 686; Re Dow Chemical Canada Inc. and Union Gas Ltd. (1982), 141 D.L.R. (3d)
641, aff’d (1983), 42 O.R. (2d) 731; Interprovincial Pipe Line Ltd. v. National Energy
Board, [1978] 1 F.C. 601; Canadian Broadcasting League v. Canadian Radio-television
and Telecommunications Commission, [1983] 1 F.C. 182, aff’d [1985] 1 S.C.R. 174;
Northwestern Utilities Ltd. v. City of Edmonton, [1929] S.C.R. 186; Northwestern
Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Re Canadian Western Natural
Gas Co., Alta. P.U.B., Decision No. E84113, October 12, 1984; Re Union Gas Ltd. and
2006
SC
C 4
(C
anLI
I)
![Page 491: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/491.jpg)
(- 10 -
Ontario Energy Board (1983), 1 D.L.R. (4th) 698; Duquesne Light Co. v. Barasch, 488
U.S. 299 (1989); Market St. Ry. Co. v. Railroad Commission of State of California, 324
U.S. 548 (1945); Re Coseka Resources Ltd. and Saratoga Processing Co. (1981), 126
D.L.R. (3d) 705, leave to appeal refused, [1981] 2 S.C.R. vii; Re Consumers’ Gas Co.,
E.B.R.O. 410-II, 411-II, 412-II, March 23, 1987; National Energy Board Act (Can.) (Re),
[1986] 3 F.C. 275; Pacific National Investments Ltd. v. Victoria (City), [2000] 2 S.C.R.
919, 2000 SCC 64; Leiriao v. Val-Bélair (Town), [1991] 3 S.C.R. 349; Hongkong Bank
of Canada v. Wheeler Holdings Ltd., [1993] 1 S.C.R. 167.
By Binnie J. (dissenting)
Atco Ltd. v. Calgary Power Ltd., [1982] 2 S.C.R. 557; C.U.P.E. v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29; TransAlta Utilities Corp. v.
Public Utilities Board (Alta.) (1986), 68 A.R. 171; Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Calgary Power Ltd.
v. Copithorne, [1959] S.C.R. 24; United Brotherhood of Carpenters and Joiners of
America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Pezim v. British
Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Memorial Gardens
Association (Canada) Ltd. v. Colwood Cemetery Co., [1958] S.C.R. 353; Union Gas Co.
of Canada Ltd. v. Sydenham Gas and Petroleum Co., [1957] S.C.R. 185; Re C.T.C.
Dealer Holdings Ltd. and Ontario Securities Commission (1987), 59 O.R. (2d) 79;
Committee for the Equal Treatment of Asbestos Minority Shareholders v. Ontario
(Securities Commission), [2001] 2 S.C.R. 132, 2001 SCC 37; Re Consumers’ Gas Co.,
E.B.R.O. 341-I, June 30, 1976; Re Boston Gas Co., 49 P.U.R. 4th 1 (1982); Re
Consumers’ Gas Co., E.B.R.O. 465, March 1, 1991; Re Natural Resource Gas Ltd.,
O.E.B., RP-2002-0147, EB-2002-0446, June 27, 2003; Yukon Energy Corp. v. Utilities
2006
SC
C 4
(C
anLI
I)
![Page 492: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/492.jpg)
(- 11 -
Board (1996), 74 B.C.A.C. 58; Re Arizona Public Service Co., 91 P.U.R. 4th 337 (1988);
Re Southern California Water Co., 43 C.P.U.C. 2d 596 (1992); Re Southern California
Gas Co., 118 P.U.R. 4th 81 (1990); Democratic Central Committee of the District of
Columbia v. Washington Metropolitan Area Transit Commission, 485 F.2d 786 (1973);
Board of Public Utility Commissioners v. New York Telephone Co., 271 U.S. 23 (1976);
Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; New York Water
Service Corp. v. Public Service Commission, 208 N.Y.S.2d 857 (1960); Re Compliance
with the Energy Policy Act of 1992, 62 C.P.U.C. 2d 517 (1995); Re California Water
Service Co., 66 C.P.U.C. 2d 100 (1996); Re TransAlta Utilities Corp., Alta. P.U.B.,
Decision No. E84116, October 12, 1984; Re Alberta Government Telephones, Alta.
P.U.B., Decision No. E84081, June 29, 1984; Re TransAlta Utilities Corp., Alta. P.U.B.,
Decision No. E84115, October 12, 1984; Re Canadian Western Natural Gas Co., Alta.
P.U.B., Decision No. E84113, October 12, 1984.
Statutes and Regulations Cited
Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17, ss. 13, 15, 26(1), (2), 27.
Gas Utilities Act, R.S.A. 2000, c. G-5, ss. 16, 17, 22, 24, 26, 27(1), 36 to 45, 59.
Interpretation Act, R.S.A. 2000, c. I-8, s. 10.
Public Utilities Act, S.A. 1915, c. 6, ss. 21, 23, 24, 29(g).
Public Utilities Board Act, R.S.A. 2000, c. P-45, ss. 36, 37, 80, 85(1), 87, 89 to 95,101(1), (2), 102(1).
Authors Cited
Anisman, Philip, and Robert F. Reid. Administrative Law Issues and Practice.Scarborough, Ont.: Carswell, 1995.
2006
SC
C 4
(C
anLI
I)
![Page 493: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/493.jpg)
(- 12 -
Black, Alexander J. “Responsible Regulation: Incentive Rates for Natural GasPipelines” (1992), 28 Tulsa L.J. 349.
Blake, Sara. Administrative Law in Canada, 3rd ed. Markham, Ont.: Butterworths,2001.
Brown, David M. Energy Regulation in Ontario. Aurora, Ont.: Canada Law Book,2001 (loose-leaf updated November 2004, release 3).
Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action inCanada. Toronto: Canvasback, 1998 (loose-leaf updated July 2005).
Brown-John, C. Lloyd. Canadian Regulatory Agencies: Quis custodiet ipsos custodes?Toronto: Butterworths, 1981.
Canadian Institute of Resources Law. Canada Energy Law Service: Alberta. Edited bySteven A. Kennett. Toronto: Thomson Carswell, 1981 (loose-leaf updated 2005,release 2).
Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough,Ont.: Carswell, 2000.
Cross, Phillip S. “Rate Treatment of Gain on Sale of Land: Ratepayer Indifference, ANew Standard?” (1990), 126 Pub. Util. Fort. 44.
Depoorter, Ben W. F. “Regulation of Natural Monopoly”, in B. Bouckaert and G. DeGeest, eds., Encyclopedia of Law and Economics, vol. III, The Regulation ofContracts. Northampton, Mass.: Edward Elgar, 2000.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Green, Richard, and Martin Rodriguez Pardina. Resetting Price Controls for PrivatizedUtilities: A Manual for Regulators. Washington, D.C.: World Bank, 1999.
Kahn, Alfred E. The Economics of Regulation: Principles and Institutions, vol. 1,Economic Principles. Cambridge, Mass.: MIT Press, 1988.
MacAvoy, Paul W., and J. Gregory Sidak. “The Efficient Allocation of Proceeds froma Utility’s Sale of Assets” (2001), 22 Energy L.J. 233.
Milner, H. R. “Public Utility Rate Control in Alberta” (1930), 8 Can. Bar Rev. 101.
Mullan, David J. Administrative Law. Toronto: Irwin Law, 2001.
Netz, Janet S. “Price Regulation: A (Non-Technical) Overview”, in B. Bouckaert andG. De Geest, eds., Encyclopedia of Law and Economics, vol. III, The Regulationof Contracts. Northampton, Mass.: Edward Elgar, 2000.
Reid, Robert F., and Hillel David. Administrative Law and Practice, 2nd ed. Toronto:Butterworths, 1978.
2006
SC
C 4
(C
anLI
I)
![Page 494: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/494.jpg)
(- 13 -
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed.Markham, Ont.: Butterworths, 2002.
Trebilcock, Michael J. “The Consumer Interest and Regulatory Reform”, in G. B.Doern, ed., The Regulatory Process in Canada. Toronto: Macmillan of Canada,1978, 94.
APPEAL and CROSS-APPEAL from a judgment of the Alberta Court of
Appeal (Wittmann J.A. and LoVecchio J. (ad hoc)) (2004), 24 Alta. L.R. (4th) 205, 339
A.R. 250, 312 W.A.C. 250, [2004] 4 W.W.R. 239, [2004] A.J. No. 45 (QL), 2004 ABCA
3, reversing a decision of the Alberta Energy and Utilities Board, [2002] A.E.U.B.D. No.
52 (QL). Appeal dismissed and cross-appeal allowed, McLachlin C.J. and Binnie and
Fish JJ. dissenting.
Brian K. O’Ferrall and Daron K. Naffin, for the appellant/respondent on
cross-appeal.
Clifton D. O’Brien, Q.C., Lawrence E. Smith, Q.C., H. Martin Kay, Q.C.,
and Laurie A. Goldbach, for the respondent/appellant on cross-appeal.
J. Richard McKee and Renée Marx, for the intervener the Alberta Energy
and Utilities Board.
Written submissions only by George Vegh and Michael W. Lyle, for the
intervener the Ontario Energy Board.
Written submissions only by J. L. McDougall, Q.C., and Michael D.
Schafler, for the intervener Enbridge Gas Distribution Inc.
2006
SC
C 4
(C
anLI
I)
![Page 495: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/495.jpg)
(- 14 -
Written submissions only by Michael A. Penny and Susan Kushneryk, for the
intervener Union Gas Limited.
The judgment of Bastarache, LeBel, Deschamps and Charron JJ. was
delivered by
BASTARACHE J. —
1. Introduction
1 At the heart of this appeal is the issue of the jurisdiction of an administrative
board. More specifically, the Court must consider whether, on the appropriate standard
of review, this utility board appropriately set out the limits of its powers and discretion.
2 Few areas of our lives are now untouched by regulation. Telephone, rail,
airline, trucking, foreign investment, insurance, capital markets, broadcasting licences
and content, banking, food, drug and safety standards, are just a few of the objects of
public regulations in Canada: M. J. Trebilcock, “The Consumer Interest and Regulatory
Reform”, in G. B. Doern, ed., The Regulatory Process in Canada (1978), 94. Discretion
is central to the regulatory agency policy process, but this discretion will vary from one
administrative body to another (see C. L. Brown-John, Canadian Regulatory Agencies:
Quis custodiet ipsos custodes? (1981), at p. 29). More importantly, in exercising this
discretion, statutory bodies must respect the confines of their jurisdiction: they cannot
trespass in areas where the legislature has not assigned them authority (see D. J. Mullan,
Administrative Law (2001), at pp. 9-10).
2006
SC
C 4
(C
anLI
I)
![Page 496: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/496.jpg)
(- 15 -
3 The business of energy and utilities is no exception to this regulatory
framework. The respondent in this case is a public utility in Alberta which delivers
natural gas. This public utility is nothing more than a private corporation subject to
certain regulatory constraints. Fundamentally, it is like any other privately held
company: it obtains the necessary funding from investors through public issues of shares
in stock and bond markets; it is the sole owner of the resources, land and other assets;
it constructs plants, purchases equipment, and contracts with employees to provide the
services; it realizes profits resulting from the application of the rates approved by the
Alberta Energy and Utilities Board (“Board”) (see P. W. MacAvoy and J. G. Sidak, “The
Efficient Allocation of Proceeds from a Utility’s Sale of Assets” (2001), 22 Energy L.J.
233, at p. 234). That said, one cannot ignore the important feature which makes a public
utility so distinct: it must answer to a regulator. Public utilities are typically natural
monopolies: technology and demand are such that fixed costs are lower for a single firm
to supply the market than would be the case where there is duplication of services by
different companies in a competitive environment (see A. E. Kahn, The Economics of
Regulation: Principles and Institutions (1988), vol. 1, at p. 11; B. W. F. Depoorter,
“Regulation of Natural Monopoly”, in B. Bouckaert and G. De Geest, eds., Encyclopedia
of Law and Economics (2000), vol. III, 498; J. S. Netz, “Price Regulation: A (Non-
Technical) Overview”, in B. Bouckaert and G. De Geest, eds., Encyclopedia of Law and
Economics (2000), vol. III, 396, at p. 398; A. J. Black, “Responsible Regulation:
Incentive Rates for Natural Gas Pipelines” (1992), 28 Tulsa L.J. 349, at p. 351).
Efficiency of production is promoted under this model. However, governments have
purported to move away from this theoretical concept and have adopted what can only
be described as a “regulated monopoly”. The utility regulations exist to protect the public
2006
SC
C 4
(C
anLI
I)
![Page 497: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/497.jpg)
(- 16 -
from monopolistic behaviour and the consequent inelasticity of demand while ensuring
the continued quality of an essential service (see Kahn, at p. 11).
4 As in any business venture, public utilities make business decisions, their
ultimate goal being to maximize the residual benefits to shareholders. However, the
regulator limits the utility’s managerial discretion over key decisions, including prices,
service offerings and the prudency of plant and equipment investment decisions. And
more relevant to this case, the utility, outside the ordinary course of business, is limited
in its right to sell assets it owns: it must obtain authorization from its regulator before
selling an asset previously used to produce regulated services (see MacAvoy and Sidak,
at p. 234).
5 Against this backdrop, the Court is being asked to determine whether the
Board has jurisdiction pursuant to its enabling statutes to allocate a portion of the net
gain on the sale of a now discarded utility asset to the rate-paying customers of the utility
when approving the sale. Subsequently, if this first question is answered affirmatively,
the Court must consider whether the Board’s exercise of its jurisdiction was reasonable
and within the limits of its jurisdiction: was it allowed, in the circumstances of this case,
to allocate a portion of the net gain on the sale of the utility to the rate-paying customers?
6 The customers’ interests are represented in this case by the City of Calgary
(“City”) which argues that the Board can determine how to allocate the proceeds
pursuant to its power to approve the sale and protect the public interest. I find this
position unconvincing.
2006
SC
C 4
(C
anLI
I)
![Page 498: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/498.jpg)
(- 17 -
7 The interpretation of the Alberta Energy and Utilities Board Act, R.S.A.
2000, c. A-17 (“AEUBA”), the Public Utilities Board Act, R.S.A. 2000, c. P-45
(“PUBA”), and the Gas Utilities Act, R.S.A. 2000, c. G-5 (“GUA”) (see Appendix for
the relevant provisions of these three statutes), can lead to only one conclusion: the
Board does not have the prerogative to decide on the distribution of the net gain from the
sale of assets of a utility. The Board’s seemingly broad powers to make any order and
to impose any additional conditions that are necessary in the public interest has to be
interpreted within the entire context of the statutes which are meant to balance the need
to protect consumers as well as the property rights retained by owners, as recognized in
a free market economy. The limits of the powers of the Board are grounded in its main
function of fixing just and reasonable rates (“rate setting”) and in protecting the integrity
and dependability of the supply system.
1.1 Overview of the Facts
8 ATCO Gas - South (“AGS”), which is a division of ATCO Gas and Pipelines
Ltd. (“ATCO”), filed an application by letter with the Board pursuant to s. 25.1(2) (now
s. 26(2)) of the GUA, for approval of the sale of its properties located in Calgary known
as Calgary Stores Block (the “property”). The property consisted of land and buildings;
however, the main value was in the land, and the purchaser intended to and did
eventually demolish the buildings and redevelop the land. According to AGS, the
property was no longer used or useful for the provision of utility services, and the sale
would not cause any harm to customers. In fact, AGS suggested that the sale would
result in cost savings to customers, by allowing the net book value of the property to be
retired and withdrawn from the rate base, thereby reducing rates. ATCO requested that
the Board approve the sale transaction and the disposition of the sale proceeds to retire
2006
SC
C 4
(C
anLI
I)
![Page 499: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/499.jpg)
(- 18 -
the remaining book value of the sold assets, to recover the disposition costs, and to
recognize the balance of the profits resulting from the sale of the plant should be paid to
shareholders. The Board dealt with the application in writing, without witnesses or an
oral hearing. Other parties making written submissions to the Board were the City of
Calgary, the Federation of Alberta Gas Co-ops Ltd., Gas Alberta Inc. and the Municipal
Interveners, who all opposed ATCO’s position with respect to the disposition of the sale
proceeds to shareholders.
1.2 Judicial History
1.2.1 Alberta Energy and Utilities Board
1.2.1.1 Decision 2001-78
9 In a first decision, which considered ATCO’s application to approve the sale
of the property, the Board employed a “no-harm” test, assessing the potential impact on
both rates and the level of service to customers and the prudence of the sale transaction,
taking into account the purchaser and tender or sale process followed. The Board was
of the view that the test had been satisfied. It was persuaded that customers would not
be harmed by the sale, given that a prudent lease arrangement to replace the sold facility
had been concluded. The Board was satisfied that there would not be a negative impact
on customers’ rates, at least during the five-year initial term of the lease. In fact, the
Board concluded that there would be cost savings to the customers and that there would
be no impact on the level of service to customers as a result of the sale. It did not make
a finding on the specific impact on future operating costs; for example, it did not
consider the costs of the lease arrangement entered into by ATCO. The Board noted that
2006
SC
C 4
(C
anLI
I)
![Page 500: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/500.jpg)
(- 19 -
those costs could be reviewed by the Board in a future general rate application brought
by interested parties.
1.2.1.2 Decision 2002-037, [2002] A.E.U.B.D. No. 52 (QL)
10 In a second decision, the Board determined the allocation of net sale
proceeds. It reviewed the regulatory policy and general principles which affected the
decision, although no specific matters are enumerated for consideration in the applicable
legislative provisions. The Board had previously developed a “no-harm” test, and it
reviewed the rationale for the test as summarized in its Decision 2001-65 (Re ATCO
Gas-North): “The Board considers that its power to mitigate or offset potential harm to
customers by allocating part or all of the sale proceeds to them, flows from its very broad
mandate to protect consumers in the public interest” (p. 16).
11 The Board went on to discuss the implications of the Alberta Court of
Appeal decision in TransAlta Utilities Corp. v. Public Utilities Board (Alta.) (1986), 68
A.R. 171, referring to various decisions it had rendered in the past. Quoting from its
Decision 2000-41 (Re TransAlta Utilities Corp.), the Board summarized the “TransAlta
Formula”:
In subsequent decisions, the Board has interpreted the Court of Appeal’sconclusion to mean that where the sale price exceeds the original cost of theassets, shareholders are entitled to net book value (in historical dollars),customers are entitled to the difference between net book value and originalcost, and any appreciation in the value of the assets (i.e. the differencebetween original cost and the sale price) is to be shared by shareholders andcustomers. The amount to be shared by each is determined by multiplyingthe ratio of sale price/original cost to the net book value (for shareholders)and the difference between original cost and net book value (for customers).However, where the sale price does not exceed original cost, customers areentitled to all of the gain on sale. [para. 27]
2006
SC
C 4
(C
anLI
I)
![Page 501: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/501.jpg)
(- 20 -
The Board also referred to Decision 2001-65, where it had clarified the following:
In the Board’s view, if the TransAlta Formula yields a result greaterthan the no-harm amount, customers are entitled to the greater amount. Ifthe TransAlta Formula yields a result less than the no-harm amount,customers are entitled to the no-harm amount. In the Board’s view, thisapproach is consistent with its historical application of the TransAltaFormula. [para. 28]
12 On the issue of its jurisdiction to allocate the net proceeds of a sale, the
Board in the present case stated:
The fact that a regulated utility must seek Board approval beforedisposing of its assets is sufficient indication of the limitations placed by thelegislature on the property rights of a utility. In appropriate circumstances,the Board clearly has the power to prevent a utility from disposing of itsproperty. In the Board’s view it also follows that the Board can approve adisposition subject to appropriate conditions to protect customer interests.
Regarding AGS’s argument that allocating more than the no-harmamount to customers would amount to retrospective ratemaking, the Boardagain notes the decision in the TransAlta Appeal. The Court of Appealaccepted that the Board could include in the definition of “revenue” anamount payable to customers representing excess depreciation paid by themthrough past rates. In the Board’s view, no question of retrospectiveratemaking arises in cases where previously regulated rate base assets arebeing disposed of out of rate base and the Board applies the TransAltaFormula.
The Board is not persuaded by the Company’s argument that the StoresBlock assets are now ‘non-utility’ by virtue of being ‘no longer required forutility service’. The Board notes that the assets could still be providingservice to regulated customers. In fact, the services formerly provided bythe Stores Block assets continue to be required, but will be provided fromexisting and newly leased facilities. Furthermore, the Board notes that evenwhen an asset and the associated service it was providing to customers is nolonger required the Board has previously allocated more than the no-harmamount to customers where proceeds have exceeded the original cost of theasset. [paras. 47-49]
13 The Board went on to apply the no-harm test to the present facts. It noted
that in its decision on the application for the approval of the sale, it had already
2006
SC
C 4
(C
anLI
I)
![Page 502: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/502.jpg)
(- 21 -
considered the no-harm test to be satisfied. However, in that first decision, it had not
made a finding with respect to the specific impact on future operating costs, including
the particular lease arrangement being entered into by ATCO.
14 The Board then reviewed the submissions with respect to the allocation of
the net gain and rejected the submission that if the new owner had no use of the buildings
on the land, this should affect the allocation of net proceeds. The Board held that the
buildings did have some present value but did not find it necessary to fix a specific value.
The Board recognized and confirmed that the TransAlta Formula was one whereby the
“windfall” realized when the proceeds of sale exceed the original cost could be shared
between customers and shareholders. It held that it should apply the formula in this case
and that it would consider the gain on the transaction as a whole, not distinguishing
between the proceeds allocated to land separately from the proceeds allocated to
buildings.
15 With respect to allocation of the gain between customers and shareholders
of ATCO, the Board tried to balance the interests of both the customers’ desire for safe
reliable service at a reasonable cost with the provision of a fair return on the investment
made by the company:
To award the entire net gain on the land and buildings to the customers,while beneficial to the customers, could establish an environment that maydeter the process wherein the company continually assesses its operation toidentify, evaluate, and select options that continually increase efficiency andreduce costs.
Conversely, to award the entire net gain to the company may establishan environment where a regulated utility company might be moved tospeculate in non-depreciable property or result in the company beingmotivated to identify and sell existing properties where appreciation hasalready occurred. [paras. 112-13]
2006
SC
C 4
(C
anLI
I)
![Page 503: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/503.jpg)
(- 22 -
16 The Board went on to conclude that the sharing of the net gain on the sale
of the land and buildings collectively, in accordance with the TransAlta Formula, was
equitable in the circumstances of this application and was consistent with past Board
decisions.
17 The Board determined that from the gross proceeds of $6,550,000, ATCO
should receive $465,000 to cover the cost of disposition ($265,000) and the provision
for environmental remediation ($200,000), the shareholders should receive $2,014,690,
and $4,070,310 should go to the customers. Of the amount credited to shareholders,
$225,245 was to be used to remove the remaining net book value of the property from
ATCO’s accounts. Of the amount allocated to customers, $3,045,813 was allocated to
ATCO Gas - South customers and $1,024,497 to ATCO Pipelines - South customers.
1.2.2 Court of Appeal of Alberta ((2004), 24 Alta. L.R. (4th) 205, 2004 ABCA 3)
18 ATCO appealed the Board’s decision. It argued that the Board did not have
any jurisdiction to allocate the proceeds of sale and that the proceeds should have been
allocated entirely to the shareholders. In its view, allowing customers to share in the
proceeds of sale would result in them benefiting twice, since they had been spared the
costs of renovating the sold assets and would enjoy cost savings from the lease
arrangements. The Court of Appeal of Alberta agreed with ATCO, allowing the appeal
and setting aside the Board’s decision. The matter was referred back to the Board, and
the Board was directed to allocate the entire amount appearing in Line 11 of the
allocation of proceeds, entitled “Remainder to be Shared” to ATCO. For the reasons that
follow, the Court of Appeal’s decision should be upheld, in part; it did not err when it
2006
SC
C 4
(C
anLI
I)
![Page 504: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/504.jpg)
(- 23 -
held that the Board did not have the jurisdiction to allocate the proceeds of the sale to
ratepayers.
2. Analysis
2.1 Issues
19 There is an appeal and a cross-appeal in this case: an appeal by the City in
which it submits that, contrary to the Court of Appeal’s decision, the Board had
jurisdiction to allocate a portion of the net gain on the sale of a utility asset to the rate-
paying customers, even where no harm to the public was found at the time the Board
approved the sale, and a cross-appeal by ATCO in which it questions the Board’s
jurisdiction to allocate any of ATCO’s proceeds from the sale to customers. In particular,
ATCO contends that the Board has no jurisdiction to make an allocation to rate-paying
customers, equivalent to the accumulated depreciation calculated for prior years. No
matter how the issue is framed, it is evident that the crux of this appeal lies in whether
the Board has the jurisdiction to distribute the gain on the sale of a utility company’s
asset.
20 Given my conclusion on this issue, it is not necessary for me to consider
whether the Board’s allocation of the proceeds in this case was reasonable. Nevertheless,
as I note at para. 82, I will direct my attention briefly to the question of the exercise of
discretion in view of my colleague’s reasons.
2.2 Standard of Review
2006
SC
C 4
(C
anLI
I)
![Page 505: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/505.jpg)
(- 24 -
21 As this appeal stems from an administrative body’s decision, it is necessary
to determine the appropriate level of deference which must be shown to the body.
Wittmann J.A., writing for the Court of Appeal, concluded that the issue of jurisdiction
of the Board attracted a standard of correctness. ATCO concurs with this conclusion. I
agree. No deference should be shown for the Board’s decision with regard to its
jurisdiction on the allocation of the net gain on sale of assets. An inquiry into the factors
enunciated by this Court in Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, confirms this conclusion, as does the reasoning in
United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R.
485, 2004 SCC 19.
22 Although it is not necessary to conduct a full analysis of the standard of
review in this case, I will address the issue briefly in light of the fact that Binnie J. deals
with the exercise of discretion in his reasons for judgment. The four factors that need to
be canvassed in order to determine the appropriate standard of review of an
administrative tribunal decision are: (1) the existence of a privative clause; (2) the
expertise of the tribunal/board; (3) the purpose of the governing legislation and the
particular provisions; and (4) the nature of the problem (Pushpanathan, at paras. 29-38).
23 In the case at bar, one should avoid a hasty characterizing of the issue as
“jurisdictional” and subsequently be tempted to skip the pragmatic and functional
analysis. A complete examination of the factors is required.
24 First, s. 26(1) of the AEUBA grants a right of appeal, but in a limited way.
Appeals are allowed on a question of jurisdiction or law and only after leave to appeal
is obtained from a judge:
2006
SC
C 4
(C
anLI
I)
![Page 506: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/506.jpg)
(- 25 -
26(1) Subject to subsection (2), an appeal lies from the Board to the Courtof Appeal on a question of jurisdiction or on a question of law.
(2) Leave to appeal may be obtained from a judge of the Court of Appealonly on an application made
(a) within 30 days from the day that the order, decision or directionsought to be appealed from was made, or
(b) within a further period of time as granted by the judge where thejudge is of the opinion that the circumstances warrant the grantingof that further period of time.
In addition, the AEUBA includes a privative clause which states that every action, order,
ruling or decision of the Board is final and shall not be questioned, reviewed or
restrained by any proceeding in the nature of an application for judicial review or
otherwise in any court (s. 27).
25 The presence of a statutory right of appeal on questions of jurisdiction and
law suggests a more searching standard of review and less deference to the Board on
those questions (see Pushpanathan, at para. 30). However, the presence of the privative
clause and right to appeal are not decisive, and one must proceed with the examination
of the nature of the question to be determined and the relative expertise of the tribunal
in those particular matters.
26 Second, as observed by the Court of Appeal, no one disputes the fact that the
Board is a specialized body with a high level of expertise regarding Alberta’s energy
resources and utilities (see, e.g., Consumers’ Gas Co. v. Ontario (Energy Board), [2001]
O.J. No. 5024 (QL) (Div. Ct.), at para. 2; Coalition of Citizens Impacted by the Caroline
Shell Plant v. Alberta (Energy Utilities Board) (1996), 41 Alta. L.R. (3d) 374 (C.A.), at
2006
SC
C 4
(C
anLI
I)
![Page 507: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/507.jpg)
(- 26 -
para. 14. In fact, the Board is a permanent tribunal with a long-term regulatory
relationship with the regulated utilities.
27 Nevertheless, the Court is concerned not with the general expertise of the
administrative decision maker, but with its expertise in relation to the specific nature of
the issue before it. Consequently, while normally one would have assumed that the
Board’s expertise is far greater than that of a court, the nature of the problem at bar, to
adopt the language of the Court of Appeal (para. 35), “neutralizes” this deference. As I
will elaborate below, the expertise of the Board is not engaged when deciding the scope
of its powers.
28 Third, the present case is governed by three pieces of legislation: the PUBA,
the GUA and the AEUBA. These statutes give the Board a mandate to safeguard the
public interest in the nature and quality of the service provided to the community by
public utilities: Atco Ltd. v. Calgary Power Ltd., [1982] 2 S.C.R. 557, at p. 576; Dome
Petroleum Ltd. v. Public Utilities Board (Alberta) (1976), 2 A.R. 453 (C.A.), at paras.
20-22, aff’d [1977] 2 S.C.R. 822. The legislative framework at hand has as its main
purpose the proper regulation of a gas utility in the public interest, more specifically the
regulation of a monopoly in the public interest with its primary tool being rate setting,
as I will explain later.
29 The particular provision at issue, s. 26(2)(d)(i) of the GUA, which requires
a utility to obtain the approval of the regulator before it sells an asset, serves to protect
the customers from adverse results brought about by any of the utility’s transactions by
ensuring that the economic benefits to customers are enhanced (MacAvoy and Sidak, at
pp. 234-36).
2006
SC
C 4
(C
anLI
I)
![Page 508: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/508.jpg)
(- 27 -
30 While at first blush the purposes of the relevant statutes and of the Board can
be conceived as a delicate balancing between different constituencies, i.e., the utility and
the customer, and therefore entail determinations which are polycentric (Pushpanathan,
at para. 36), the interpretation of the enabling statutes and the particular provisions under
review (s. 26(2)(d) of the GUA and s. 15(3)(d) of the AEUBA) is not a polycentric
question, contrary to the conclusion of the Court of Appeal. It is an inquiry into whether
a proper construction of the enabling statutes gives the Board jurisdiction to allocate the
profits realized from the sale of an asset. The Board was not created with the main
purpose of interpreting the AEUBA, the GUA or the PUBA in the abstract, where no
policy consideration is at issue, but rather to ensure that utility rates are always just and
reasonable (see Atco Ltd., at p. 576). In the case at bar, this protective role does not come
into play. Hence, this factor points to a less deferential standard of review.
31 Fourth, the nature of the problem underlying each issue is different. The
parties are in essence asking the Court to answer two questions (as I have set out above),
the first of which is to determine whether the power to dispose of the proceeds of sale
falls within the Board’s statutory mandate. The Board, in its decision, determined that
it had the power to allocate a portion of the proceeds of a sale of utility assets to the
ratepayers; it based its decision on its statutory powers, the equitable principles rooted
in the “regulatory compact” (see para. 63 of these reasons) and previous practice. This
question is undoubtedly one of law and jurisdiction. The Board would arguably have no
greater expertise with regard to this issue than the courts. A court is called upon to
interpret provisions that have no technical aspect, in contrast with the provision disputed
in Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, 2003
SCC 28, at para. 86. The interpretation of general concepts such as “public interest” and
2006
SC
C 4
(C
anLI
I)
![Page 509: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/509.jpg)
(- 28 -
“conditions” (as found in s. 15(3)(d) of the AEUBA) is not foreign to courts and is not
derived from an area where the tribunal has been held to have greater expertise than the
courts. The second question is whether the method and actual allocation in this case were
reasonable. To resolve this issue, one must consider case law, policy justifications and
the practice of other boards, as well as the details of the particular allocation in this case.
The issue here is most likely characterized as one of mixed fact and law.
32 In light of the four factors, I conclude that each question requires a distinct
standard of review. To determine the Board’s power to allocate proceeds from a sale of
utility assets suggests a standard of review of correctness. As expressed by the Court of
Appeal, the focus of this inquiry remains on the particular provisions being invoked and
interpreted by the tribunal (s. 26(2)(d) of the GUA and s. 15(3)(d) of the AEUBA) and
“goes to jurisdiction” (Pushpanathan, at para. 28). Moreover, keeping in mind all the
factors discussed, the generality of the proposition will be an additional factor in favour
of the imposition of a correctness standard, as I stated in Pushpanathan, at para. 38:
. . . the broader the propositions asserted, and the further the implications ofsuch decisions stray from the core expertise of the tribunal, the lesslikelihood that deference will be shown. Without an implied or expresslegislative intent to the contrary as manifested in the criteria above,legislatures should be assumed to have left highly generalized propositionsof law to courts.
33 The second question regarding the Board’s actual method used for the
allocation of proceeds likely attracts a more deferential standard. On the one hand, the
Board’s expertise, particularly in this area, its broad mandate, the technical nature of the
question and the general purposes of the legislation, all suggest a relatively high level
of deference to the Board’s decision. On the other hand, the absence of a privative clause
on questions of jurisdiction and the reference to law needed to answer this question all
2006
SC
C 4
(C
anLI
I)
![Page 510: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/510.jpg)
(- 29 -
suggest a less deferential standard of review which favours reasonableness. It is not
necessary, however, for me to determine which specific standard would have applied
here.
34 As will be shown in the analysis below, I am of the view that the Court of
Appeal made no error of fact or law when it concluded that the Board acted beyond its
jurisdiction by misapprehending its statutory and common law authority. However, the
Court of Appeal erred when it did not go on to conclude that the Board has no
jurisdiction to allocate any portion of the proceeds of sale of the property to ratepayers.
2.3 Was the Board’s Decision as to Its Jurisdiction Correct?
35 Administrative tribunals or agencies are statutory creations: they cannot
exceed the powers that were granted to them by their enabling statute; they must “adhere
to the confines of their statutory authority or ‘jurisdiction’[; and t]hey cannot trespass in
areas where the legislature has not assigned them authority”: Mullan, at pp. 9-10 (see
also S. Blake, Administrative Law in Canada (3rd ed. 2001), at pp. 183-84).
36 In order to determine whether the Board’s decision that it had the jurisdiction
to allocate proceeds from the sale of a utility’s asset was correct, I am required to
interpret the legislative framework by which the Board derives its powers and actions.
2.3.1 General Principles of Statutory Interpretation
2006
SC
C 4
(C
anLI
I)
![Page 511: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/511.jpg)
(- 30 -
37 For a number of years now, the Court has adopted E. A. Driedger’s modern
approach as the method to follow for statutory interpretation (Construction of Statutes
(2nd ed. 1983), at p. 87):
Today there is only one principle or approach, namely, the words of anAct are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of theAct, and the intention of Parliament.
(See, e.g., Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu
Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26; H.L. v.
Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at paras. 186-87;
Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6, at para. 54; Barrie
Public Utilities, at paras. 20 and 86; Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217,
2005 SCC 63, at para. 19.)
38 But more specifically in the area of administrative law, tribunals and boards
obtain their jurisdiction over matters from two sources: (1) express grants of jurisdiction
under various statutes (explicit powers); and (2) the common law, by application of the
doctrine of jurisdiction by necessary implication (implicit powers) (see also D. M.
Brown, Energy Regulation in Ontario (loose-leaf ed.), at p. 2-15).
39 The City submits that it is both implicit and explicit within the express
jurisdiction that has been conferred upon the Board to approve or refuse to approve the
sale of utility assets, that the Board can determine how to allocate the proceeds of the
sale in this case. ATCO retorts that not only is such a power absent from the explicit
language of the legislation, but it cannot be “implied” from the statutory regime as
2006
SC
C 4
(C
anLI
I)
![Page 512: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/512.jpg)
(- 31 -
necessarily incidental to the explicit powers. I agree with ATCO’s submissions and will
elaborate in this regard.
2.3.2 Explicit Powers: Grammatical and Ordinary Meaning
40 As a preliminary submission, the City argues that given that ATCO applied
to the Board for approval of both the sale transaction and the disposition of the proceeds
of sale, this suggests that ATCO recognized that the Board has authority to allocate the
proceeds as a condition of a proposed sale. This argument does not hold any weight in
my view. First, the application for approval cannot be considered on its own an
admission by ATCO of the jurisdiction of the Board. In any event, an admission of this
nature would not have any bearing on the applicable law. Moreover, knowing that in the
past the Board had decided that it had jurisdiction to allocate the proceeds of a sale of
assets and had acted on this power, one can assume that ATCO was asking for the
approval of the disposition of the proceeds should the Board not accept their argument
on jurisdiction. In fact, a review of past Board decisions on the approval of sales shows
that utility companies have constantly challenged the Board’s jurisdiction to allocate the
net gain on the sale of assets (see, e.g., Re TransAlta Utilities Corp., Alta. E.U.B.,
Decision 2000-41; Re ATCO Gas-North, Alta. E.U.B., Decision 2001-65; Re Alberta
Government Telephones, Alta. P.U.B., Decision No. E84081, June 29, 1984; Re
TransAlta Utilities Corp., Alta. P.U.B., Decision No. E84116, October 12, 1984;
TransAlta Utilities Corp. (Re), [2002] A.E.U.B.D. No. 30 (QL); ATCO Electric Ltd.
(Re), [2003] A.E.U.B.D. No. 92 (QL)).
41 The starting point of the analysis requires that the Court examine the
ordinary meaning of the sections at the centre of the dispute, s. 26(2)(d)(i) of the GUA,
2006
SC
C 4
(C
anLI
I)
![Page 513: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/513.jpg)
(- 32 -
ss. 15(1) and 15(3)(d) of the AEUBA and s. 37 of the PUBA. For ease of reference, I
reproduce these provisions:
GUA
26. . . .
(2) No owner of a gas utility designated under subsection (1) shall
. . .
(d) without the approval of the Board,
(i) sell, lease, mortgage or otherwise dispose of or encumber itsproperty, franchises, privileges or rights, or any part of it or them
. . .
and a sale, lease, mortgage, disposition, encumbrance, merger orconsolidation made in contravention of this clause is void, but nothingin this clause shall be construed to prevent in any way the sale, lease,mortgage, disposition, encumbrance, merger or consolidation of any ofthe property of an owner of a gas utility designated under subsection (1)in the ordinary course of the owner’s business.
AEUBA
15(1) For the purposes of carrying out its functions, the Board has all thepowers, rights and privileges of the ERCB [Energy Resources ConservationBoard] and the PUB [Public Utilities Board] that are granted or provided forby any enactment or by law.
. . .
(3) Without restricting subsection (1), the Board may do all or any of thefollowing:
. . .
(d) with respect to an order made by the Board, the ERCB or the PUBin respect of matters referred to in clauses (a) to (c), make anyfurther order and impose any additional conditions that the Boardconsiders necessary in the public interest;
. . .
PUBA
2006
SC
C 4
(C
anLI
I)
![Page 514: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/514.jpg)
(- 33 -
37 In matters within its jurisdiction the Board may order and require anyperson or local authority to do forthwith or within or at a specified time andin any manner prescribed by the Board, so far as it is not inconsistent withthis Act or any other Act conferring jurisdiction, any act, matter or thing thatthe person or local authority is or may be required to do under this Act orunder any other general or special Act, and may forbid the doing orcontinuing of any act, matter or thing that is in contravention of any suchAct or of any regulation, rule, order or direction of the Board.
42 Some of the above provisions are duplicated in the other two statutes (see,
e.g., PUBA, ss. 85(1) and 101(2)(d)(i); GUA, s. 22(1); see Appendix).
43 There is no dispute that s. 26(2) of the GUA contains a prohibition against,
among other things, the owner of a utility selling, leasing, mortgaging or otherwise
disposing of its property outside of the ordinary course of business without the approval
of the Board. As submitted by ATCO, the power conferred is to approve without more.
There is no mention in s. 26 of the grounds for granting or denying approval or of the
ability to grant conditional approval, let alone the power of the Board to allocate the net
profit of an asset sale. I would note in passing that this power is sufficient to alleviate the
fear expressed by the Board that the utility might be tempted to sell assets on which it
might realize a large profit to the detriment of ratepayers if it could reap the benefits of
the sale.
44 It is interesting to note that s. 26(2) does not apply to all types of sales (and
leases, mortgages, dispositions, encumbrances, mergers or consolidations). It excludes
sales in the ordinary course of the owner’s business. If the statutory scheme was such
that the Board had the power to allocate the proceeds of the sale of utility assets, as
argued here, s. 26(2) would naturally apply to all sales of assets or, at a minimum,
exempt only those sales below a certain value. It is apparent that allocation of sale
proceeds to customers is not one of its purposes. In fact, s. 26(2) can only have limited,
2006
SC
C 4
(C
anLI
I)
![Page 515: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/515.jpg)
(- 34 -
if any, application to non-utility assets not related to utility function (especially when the
sale has passed the “no-harm” test). The provision can only be meant to ensure that the
asset in question is indeed non-utility, so that its loss does not impair the utility function
or quality.
45 Therefore, a simple reading of s. 26(2) of the GUA does permit one to
conclude that the Board does not have the power to allocate the proceeds of an asset sale.
46 The City does not limit its arguments to s. 26(2); it also submits that the
AEUBA, pursuant to s. 15(3), is an express grant of jurisdiction because it authorizes
the Board to impose any condition to any order so long as the condition is necessary in
the public interest. In addition, it relies on the general power in s. 37 of the PUBA for
the proposition that the Board may, in any matter within its jurisdiction, make any order
pertaining to that matter that is not inconsistent with any applicable statute. The intended
meaning of these two provisions, however, is lost when the provisions are simply read
in isolation as proposed by the City: R. Sullivan, Sullivan and Driedger on the
Construction of Statutes (4th ed. 2002), at p. 21; Canadian Pacific Air Lines Ltd. v.
Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724, at p. 735; Marche, at paras. 59-60;
Bristol-Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, 2005 SCC
26, at para. 105. These provisions on their own are vague and open-ended. It would be
absurd to allow the Board an unfettered discretion to attach any condition it wishes to
an order it makes. Furthermore, the concept of “public interest” found in s. 15(3) is very
wide and elastic; the Board cannot be given total discretion over its limitations.
47 While I would conclude that the legislation is silent as to the Board’s power
to deal with sale proceeds after the initial stage in the statutory interpretation analysis,
2006
SC
C 4
(C
anLI
I)
![Page 516: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/516.jpg)
(- 35 -
because the provisions can nevertheless be said to reveal some ambiguity and
incoherence, I will pursue the inquiry further.
48 This Court has stated on numerous occasions that the grammatical and
ordinary sense of a section is not determinative and does not constitute the end of the
inquiry. The Court is obliged to consider the total context of the provisions to be
interpreted, no matter how plain the disposition may seem upon initial reading (see
Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002
SCC 3, at para. 34; Sullivan, at pp. 20-21). I will therefore proceed to examine the
purpose and scheme of the legislation, the legislative intent and the relevant legal norms.
2.3.3 Implicit Powers: Entire Context
49 The provisions at issue are found in statutes which are themselves
components of a larger statutory scheme which cannot be ignored:
As the product of a rational and logical legislature, the statute isconsidered to form a system. Every component contributes to the meaningas a whole, and the whole gives meaning to its parts: “each legal provisionshould be considered in relation to other provisions, as parts of a whole”. . . .
(P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), atp. 308)
As in any statutory interpretation exercise, when determining the powers of an
administrative body, courts need to examine the context that colours the words and the
legislative scheme. The ultimate goal is to discover the clear intent of the legislature and
the true purpose of the statute while preserving the harmony, coherence and consistency
of the legislative scheme (Bell ExpressVu, at para. 27; see also Interpretation Act, R.S.A.
2006
SC
C 4
(C
anLI
I)
![Page 517: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/517.jpg)
(- 36 -
2000, c. I-8, s. 10 (in Appendix)). “[S]tatutory interpretation is the art of finding the
legislative spirit embodied in enactments”: Bristol-Myers Squibb Co., at para. 102.
50 Consequently, a grant of authority to exercise a discretion as found in
s. 15(3) of the AEUBA and s. 37 of the PUBA does not confer unlimited discretion to
the Board. As submitted by ATCO, the Board’s discretion is to be exercised within the
confines of the statutory regime and principles generally applicable to regulatory matters,
for which the legislature is assumed to have had regard in passing that legislation (see
Sullivan, at pp. 154-55). In the same vein, it is useful to refer to the following passage
from Bell Canada v. Canada (Canadian Radio-Television and Telecommunications
Commission), [1989] 1 S.C.R. 1722, at p. 1756:
The powers of any administrative tribunal must of course be stated in itsenabling statute but they may also exist by necessary implication from thewording of the act, its structure and its purpose. Although courts mustrefrain from unduly broadening the powers of such regulatory authoritiesthrough judicial law-making, they must also avoid sterilizing these powersthrough overly technical interpretations of enabling statutes.
51 The mandate of this Court is to determine and apply the intention of the
legislature (Bell ExpressVu, at para. 62) without crossing the line between judicial
interpretation and legislative drafting (see R. v. McIntosh, [1995] 1 S.C.R. 686, at
para. 26; Bristol-Myers Squibb Co., at para. 174). That being said, this rule allows for
the application of the “doctrine of jurisdiction by necessary implication”; the powers
conferred by an enabling statute are construed to include not only those expressly
granted but also, by implication, all powers which are practically necessary for the
accomplishment of the object intended to be secured by the statutory regime created by
the legislature (see Brown, at p. 2-16.2; Bell Canada, at p. 1756). Canadian courts have
2006
SC
C 4
(C
anLI
I)
![Page 518: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/518.jpg)
(- 37 -
in the past applied the doctrine to ensure that administrative bodies have the necessary
jurisdiction to accomplish their statutory mandate:
When legislation attempts to create a comprehensive regulatory framework,the tribunal must have the powers which by practical necessity andnecessary implication flow from the regulatory authority explicitly conferredupon it.
Re Dow Chemical Canada Inc. and Union Gas Ltd. (1982), 141 D.L.R. (3d) 641 (Ont.
H.C.), at pp. 658-59, aff’d (1983), 42 O.R. (2d) 731 (C.A.) (see also Interprovincial Pipe
Line Ltd. v. National Energy Board, [1978] 1 F.C. 601 (C.A.); Canadian Broadcasting
League v. Canadian Radio-television and Telecommunications Commission, [1983] 1
F.C. 182 (C.A.), aff’d [1985] 1 S.C.R. 174).
52 I understand the City’s arguments to be as follows: (1) the customers acquire
a right to the property of the owner of the utility when they pay for the service and are
therefore entitled to a return on the profits made at the time of the sale of the property;
and (2) the Board has, by necessity, because of its jurisdiction to approve or refuse to
approve the sale of utility assets, the power to allocate the proceeds of the sale as a
condition of its order. The doctrine of jurisdiction by necessary implication is at the heart
of the City’s second argument. I cannot accept either of these arguments which are, in
my view, diametrically contrary to the state of the law. This is revealed when we
scrutinize the entire context which I will now endeavour to do.
53 After a brief review of a few historical facts, I will probe into the main
function of the Board, rate setting, and I will then explore the incidental powers which
can be derived from the context.
2006
SC
C 4
(C
anLI
I)
![Page 519: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/519.jpg)
(- 38 -
2.3.3.1 Historical Background and Broader Context
54 The history of public utilities regulation in Alberta originated with the
creation in 1915 of the Board of Public Utility Commissioners by The Public Utilities
Act, S.A. 1915, c. 6. This statute was based on similar American legislation:
H. R. Milner, “Public Utility Rate Control in Alberta” (1930), 8 Can. Bar Rev. 101, at
p. 101. While the American jurisprudence and texts in this area should be considered
with caution given that Canada and the United States have very different political and
constitutional-legal regimes, they do shed some light on the issue.
55 Pursuant to The Public Utilities Act, the first public utility board was
established as a three-member tribunal to provide general supervision of all public
utilities (s. 21), to investigate rates (s. 23), to make orders regarding equipment (s. 24),
and to require every public utility to file with it complete schedules of rates (s. 23). Of
interest for our purposes, the 1915 statute also required public utilities to obtain the
approval of the Board of Public Utility Commissioners before selling any property when
outside the ordinary course of their business (s. 29(g)).
56 The Alberta Energy and Utilities Board was created in February 1995 by the
amalgamation of the Energy Resources Conservation Board and the Public Utilities
Board (see Canadian Institute of Resources Law, Canada Energy Law Service: Alberta
(loose-leaf ed.), at p. 30-3101). Since then, all matters under the jurisdiction of the
Energy Resources Conservation Board and the Public Utilities Board have been handled
by the Alberta Energy and Utilities Board and are within its exclusive jurisdiction. The
Board has all of the powers, rights and privileges of its two predecessor boards
(AEUBA, ss. 13, 15(1); GUA, s. 59).
2006
SC
C 4
(C
anLI
I)
![Page 520: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/520.jpg)
(- 39 -
57 In addition to the powers found in the 1915 statute, which have remained
virtually the same in the present PUBA, the Board now benefits from the following
express powers to:
1. make an order respecting the improvement of the service or commodity
(PUBA, s. 80(b));
2. approve the issue by the public utility of shares, stocks, bonds and other
evidences of indebtedness (GUA, s. 26(2)(a); PUBA, s. 101(2)(a));
3. approve the lease, mortgage, disposition or encumbrance of the public
utility’s property, franchises, privileges or rights (GUA, s. 26(2)(d)(i);
PUBA, s. 101(2)(d)(i));
4. approve the merger or consolidation of the public utility’s property,
franchises, privileges or rights (GUA, s. 26(2)(d)(ii); PUBA, s.
101(2)(d)(ii)); and
5. authorize the sale or permit to be made on the public utility’s book a transfer
of any share of its capital stock to a corporation that would result in the
vesting in that corporation of more than 50 percent of the outstanding capital
stock of the owner of the public utility (GUA, s. 27(1); PUBA, s. 102(1)).
58 It goes without saying that public utilities are very limited in the actions they
can take, as evidenced from the above list. Nowhere is there a mention of the authority
2006
SC
C 4
(C
anLI
I)
![Page 521: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/521.jpg)
(- 40 -
to allocate proceeds from a sale or the discretion of the Board to interfere with ownership
rights.
59 Even in 1995 when the legislature decided to form the Alberta Energy and
Utilities Board, it did not see fit to modify the PUBA or the GUA to provide the new
Board with the power to allocate the proceeds of a sale even though the controversy
surrounding this issue was full-blown (see, e.g., Re Alberta Government Telephones,
Alta. P.U.B., Decision No. E84081; Re TransAlta Utilities Corp., Alta. P.U.B., Decision
No. E84116). It is a well-established principle that the legislature is presumed to have
a mastery of existing law, both common law and statute law (see Sullivan, at pp. 154-
55). It is also presumed to have known all of the circumstances surrounding the adoption
of new legislation.
60 Although the Board may seem to possess a variety of powers and functions,
it is manifest from a reading of the AEUBA, the PUBA and the GUA that the principal
function of the Board in respect of public utilities is the determination of rates. Its power
to supervise the finances of these companies and their operations, although wide, is in
practice incidental to fixing rates (see Milner, at p. 102; Brown, at p. 2-16.6). Estey J.,
speaking for the majority of this Court in Atco Ltd., at p. 576, echoed this view when he
said:
It is evident from the powers accorded to the Board by the legislaturein both statutes mentioned above that the legislature has given the Board amandate of the widest proportions to safeguard the public interest in thenature and quality of the service provided to the community by the publicutilities. Such an extensive regulatory pattern must, for its effectiveness,include the right to control the combination or, as the legislature says, “theunion” of existing systems and facilities. This no doubt has a directrelationship with the rate-fixing function which ranks high in the authorityand functions assigned to the Board. [Emphasis added.]
2006
SC
C 4
(C
anLI
I)
![Page 522: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/522.jpg)
(- 41 -
I n f a c t , e v e n t h e B o a r d i t s e l f , o n i t s w e b s i t e
(http://www.eub.gov.ab.ca/BBS/eubinfo/default.htm), describes its functions as follows:
We regulate the safe, responsible, and efficient development ofAlberta’s energy resources: oil, natural gas, oil sands, coal, and electricalenergy; and the pipelines and transmission lines to move the resources tomarket. On the utilities side, we regulate rates and terms of service ofinvestor-owned natural gas, electric, and water utility services, as well as themajor intra-Alberta gas transmission system, to ensure that customersreceive safe and reliable service at just and reasonable rates. [Emphasisadded.]
61 The process by which the Board sets the rates is therefore central and
deserves some attention in order to ascertain the validity of the City’s first argument.
2.3.3.2 Rate Setting
62 Rate regulation serves several aims — sustainability, equity and efficiency
— which underlie the reasoning as to how rates are fixed:
. . . the regulated company must be able to finance its operations, and anyrequired investment, so that it can continue to operate in the future. . . .Equity is related to the distribution of welfare among members of society.The objective of sustainability already implies that shareholders should notreceive “too low” a return (and defines this in terms of the reward necessaryto ensure continued investment in the utility), while equity implies that theirreturns should not be “too high”.
(R. Green and M. Rodriguez Pardina, Resetting Price Controls forPrivatized Utilities: A Manual for Regulators (1999), at p. 5)
63 These goals have resulted in an economic and social arrangement dubbed the
“regulatory compact”, which ensures that all customers have access to the utility at a fair
price — nothing more. As I will further explain, it does not transfer onto the customers
2006
SC
C 4
(C
anLI
I)
![Page 523: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/523.jpg)
(- 42 -
any property right. Under the regulatory compact, the regulated utilities are given
exclusive rights to sell their services within a specific area at rates that will provide
companies the opportunity to earn a fair return for their investors. In return for this right
of exclusivity, utilities assume a duty to adequately and reliably serve all customers in
their determined territories, and are required to have their rates and certain operations
regulated (see Black, at pp. 356-57; Milner, at p. 101; Atco Ltd., at p. 576; Northwestern
Utilities Ltd. v. City of Edmonton, [1929] S.C.R. 186 (“Northwestern 1929”), at pp. 192-
93).
64 Therefore, when interpreting the broad powers of the Board, one cannot
ignore this well-balanced regulatory arrangement which serves as a backdrop for
contextual interpretation. The object of the statutes is to protect both the customer and
the investor (Milner, at p. 101). The arrangement does not, however, cancel the private
nature of the utility. In essence, the Board is responsible for maintaining a tariff that
enhances the economic benefits to consumers and investors of the utility.
65 The Board derives its power to set rates from both the GUA (ss. 16, 17 and
36 to 45) and the PUBA (ss. 89 to 95). The Board is mandated to fix “just and reasonable
. . . rates” (PUBA, s. 89(a); GUA, s. 36(a)). In the establishment of these rates, the Board
is directed to “determine a rate base for the property of the owner” and “fix a fair return
on the rate base” (GUA, s. 37(1)). This Court, in Northwestern Utilities Ltd. v. City of
Edmonton, [1979] 1 S.C.R. 684 (“Northwestern 1979”), at p. 691, adopted the following
description of the process:
The PUB approves or fixes utility rates which are estimated to coverexpenses plus yield the utility a fair return or profit. This function isgenerally performed in two phases. In Phase I the PUB determines the ratebase, that is the amount of money which has been invested by the company
2006
SC
C 4
(C
anLI
I)
![Page 524: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/524.jpg)
(- 43 -
in the property, plant and equipment plus an allowance for necessaryworking capital all of which must be determined as being necessary toprovide the utility service. The revenue required to pay all reasonableoperating expenses plus provide a fair return to the utility on its rate base isalso determined in Phase I. The total of the operating expenses plus thereturn is called the revenue requirement. In Phase II rates are set, which,under normal temperature conditions are expected to produce the estimatesof “forecast revenue requirement”. These rates will remain in effect untilchanged as the result of a further application or complaint or the Board’sinitiative. Also in Phase II existing interim rates may be confirmed orreduced and if reduced a refund is ordered.
(See also Re Canadian Western Natural Gas Co., Alta. P.U.B., Decision No. E84113,
October 12, 1984, at p. 23; Re Union Gas Ltd. and Ontario Energy Board (1983), 1
D.L.R. (4th) 698 (Ont. Div. Ct.), at pp. 701-2.)
66 Consequently, when determining the rate base, the Board is to give due
consideration (GUA, s. 37(2)):
(a) to the cost of the property when first devoted to public use and toprudent acquisition cost to the owner of the gas utility, lessdepreciation, amortization or depletion in respect of each, and
(b) to necessary working capital.
67 The fact that the utility is given the opportunity to make a profit on its
services and a fair return on its investment in its assets should not and cannot stop the
utility from benefiting from the profits which follow the sale of assets. Neither is the
utility protected from losses incurred from the sale of assets. In fact, the wording of the
sections quoted above suggests that the ownership of the assets is clearly that of the
utility; ownership of the asset and entitlement to profits or losses upon its realization are
one and the same. The equity investor expects to receive the net revenues after all costs
are paid, equal to the present value of original investment at the time of that investment.
2006
SC
C 4
(C
anLI
I)
![Page 525: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/525.jpg)
(- 44 -
The disbursement of some portions of the residual amount of net revenue, by after-the-
fact reallocation to rate-paying customers, undermines that investment process:
MacAvoy and Sidak, at p. 244. In fact, speculation would accrue even more often should
the public utility, through its shareholders, not be the one to benefit from the possibility
of a profit, as investors would expect to receive a larger premium for their funds through
the only means left available, the return on their original investment. In addition, they
would be less willing to accept any risk.
68 Thus, can it be said, as alleged by the City, that the customers have a
property interest in the utility? Absolutely not: that cannot be so, as it would mean that
fundamental principles of corporate law would be distorted. Through the rates, the
customers pay an amount for the regulated service that equals the cost of the service and
the necessary resources. They do not by their payment implicitly purchase the asset from
the utility’s investors. The payment does not incorporate acquiring ownership or control
of the utility’s assets. The ratepayer covers the cost of using the service, not the holding
cost of the assets themselves: “A utility’s customers are not its owners, for they are not
residual claimants”: MacAvoy and Sidak, at p. 245 (see also p. 237). Ratepayers have
made no investment. Shareholders have and they assume all risks as the residual
claimants to the utility’s profit. Customers have only “the risk of a price change resulting
from any (authorized) change in the cost of service. This change is determined only
periodically in a tariff review by the regulator” (MacAvoy and Sidak, at p. 245).
69 In this regard, I agree with ATCO when it asserts in its factum, at para. 38:
The property in question is as fully the private property of the owner of theutility as any other asset it owns. Deployment of the asset in utility servicedoes not create or transfer any legal or equitable rights in that property for
2006
SC
C 4
(C
anLI
I)
![Page 526: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/526.jpg)
(- 45 -
ratepayers. Absent any such interest, any taking such as ordered by theBoard is confiscatory . . . .
Wittmann J.A., at the Court of Appeal, said it best when he stated:
Consumers of utilities pay for a service, but by such payment, do notreceive a proprietary right in the assets of the utility company. Where thecalculated rates represent the fee for the service provided in the relevantperiod of time, ratepayers do not gain equitable or legal rights to non-depreciable assets when they have paid only for the use of those assets.[Emphasis added; para. 64.]
I fully adopt this conclusion. The Board misdirected itself by confusing the interests of
the customers in obtaining safe and efficient utility service with an interest in the
underlying assets owned only by the utility. While the utility has been compensated for
the services provided, the customers have provided no compensation for receiving the
benefits of the subject property. The argument that assets purchased are reflected in the
rate base should not cloud the issue of determining who is the appropriate owner and risk
bearer. Assets are indeed considered in rate setting, as a factor, and utilities cannot sell
an asset used in the service to create a profit and thereby restrict the quality or increase
the price of service. Despite the consideration of utility assets in the rate-setting process,
shareholders are the ones solely affected when the actual profits or losses of such a sale
are realized; the utility absorbs losses and gains, increases and decreases in the value of
assets, based on economic conditions and occasional unexpected technical difficulties,
but continues to provide certainty in service both with regard to price and quality. There
can be a default risk affecting ratepayers, but this does not make ratepayers residual
claimants. While I do not wish to unduly rely on American jurisprudence, I would note
that the leading U.S. case on this point is Duquesne Light Co. v. Barasch, 488 U.S. 299
2006
SC
C 4
(C
anLI
I)
![Page 527: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/527.jpg)
(- 46 -
(1989), which relies on the same principle as was adopted in Market St. Ry. Co. v.
Railroad Commission of State of California, 324 U.S. 548 (1945).
70 Furthermore, one has to recognize that utilities are not Crown entities,
fraternal societies or cooperatives, or mutual companies, although they have a “public
interest” aspect which is to supply the public with a necessary service (in the present
case, the provision of natural gas). The capital invested is not provided by the public
purse or by the customers; it is injected into the business by private parties who expect
as large a return on the capital invested in the enterprise as they would receive if they
were investing in other securities possessing equal features of attractiveness, stability and
certainty (see Northwestern 1929, at p. 192). This prospect will necessarily include any
gain or loss that is made if the company divests itself of some of its assets, i.e., land,
buildings, etc.
71 From my discussion above regarding the property interest, the Board was in
no position to proceed with an implicit refund by allocating to ratepayers the profits from
the asset sale because it considered ratepayers had paid excessive rates for services in
the past. As such, the City’s first argument must fail. The Board was seeking to rectify
what it perceived as a historic over-compensation to the utility by ratepayers. There is
no power granted in the various statutes for the Board to execute such a refund in respect
of an erroneous perception of past over-compensation. It is well established throughout
the various provinces that utilities boards do not have the authority to retroactively
change rates (Northwestern 1979, at p. 691; Re Coseka Resources Ltd. and Saratoga
Processing Co. (1981), 126 D.L.R. (3d) 705 (Alta. C.A.), at p. 715, leave to appeal
refused, [1981] 2 S.C.R. vii; Re Dow Chemical Canada Inc. (C.A.), at pp. 734-35). But
more importantly, it cannot even be said that there was over-compensation: the rate-
2006
SC
C 4
(C
anLI
I)
![Page 528: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/528.jpg)
(- 47 -
setting process is a speculative procedure in which both the ratepayers and the
shareholders jointly carry their share of the risk related to the business of the utility (see
MacAvoy and Sidak, at pp. 238-39).
2.3.3.3 The Power to Attach Conditions
72 As its second argument, the City submits that the power to allocate the
proceeds from the sale of the utility’s assets is necessarily incidental to the express
powers conferred on the Board by the AEUBA, the GUA and the PUBA. It argues that
the Board must necessarily have the power to allocate sale proceeds as part of its
discretionary power to approve or refuse to approve a sale of assets. It submits that this
results from the fact that the Board is allowed to attach any condition to an order it
makes approving such a sale. I disagree.
73 The City seems to assume that the doctrine of jurisdiction by necessary
implication applies to “broadly drawn powers” as it does for “narrowly drawn powers”;
this cannot be. The Ontario Energy Board in its decision in Re Consumers’ Gas Co.,
E.B.R.O. 410-II/411-II/412-II, March 23, 1987, at para. 4.73, enumerated the
circumstances when the doctrine of jurisdiction by necessary implication may be applied:
* [when] the jurisdiction sought is necessary to accomplish the objectivesof the legislative scheme and is essential to the Board fulfilling itsmandate;
* [when] the enabling act fails to explicitly grant the power to accomplishthe legislative objective;
* [when] the mandate of the Board is sufficiently broad to suggest alegislative intention to implicitly confer jurisdiction;
2006
SC
C 4
(C
anLI
I)
![Page 529: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/529.jpg)
(- 48 -
* [when] the jurisdiction sought must not be one which the Board hasdealt with through use of expressly granted powers, thereby showing anabsence of necessity; and
* [when] the Legislature did not address its mind to the issue and decideagainst conferring the power upon the Board.
(See also Brown, at p. 2-16.3.)
74 In light of the above, it is clear that the doctrine of jurisdiction by necessary
implication will be of less help in the case of broadly drawn powers than for narrowly
drawn ones. Broadly drawn powers will necessarily be limited to only what is rationally
related to the purpose of the regulatory framework. This is explained by Professor
Sullivan, at p. 228:
In practice, however, purposive analysis makes the powers conferred onadministrative bodies almost infinitely elastic. Narrowly drawn powers canbe understood to include “by necessary implication” all that is needed toenable the official or agency to achieve the purpose for which the power wasgranted. Conversely, broadly drawn powers are understood to include onlywhat is rationally related to the purpose of the power. In this way the scopeof the power expands or contracts as needed, in keeping with the purpose.[Emphasis added.]
75 In the case at bar, s. 15 of the AEUBA, which allows the Board to impose
additional conditions when making an order, appears at first glance to be a power having
infinitely elastic scope. However, in my opinion, the attempt by the City to use it to
augment the powers of the Board in s. 26(2) of the GUA must fail. The Court must
construe s. 15(3) of the AEUBA in accordance with the purpose of s. 26(2).
76 MacAvoy and Sidak, in their article, at pp. 234-36, suggest three broad
reasons for the requirement that a sale must be approved by the Board:
2006
SC
C 4
(C
anLI
I)
![Page 530: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/530.jpg)
(- 49 -
1. It prevents the utility from degrading the quality, or reducing the quantity,
of the regulated service so as to harm consumers;
2. It ensures that the utility maximizes the aggregate economic benefits of its
operations, and not merely the benefits flowing to some interest group or
stakeholder; and
3. It specifically seeks to prevent favoritism toward investors.
77 Consequently, in order to impute jurisdiction to a regulatory body to allocate
proceeds of a sale, there must be evidence that the exercise of that power is a practical
necessity for the regulatory body to accomplish the objects prescribed by the legislature,
something which is absent in this case (see National Energy Board Act (Can.) (Re),
[1986] 3 F.C. 275 (C.A.)). In order to meet these three goals, it is not necessary for the
Board to have control over which party should benefit from the sale proceeds. The public
interest component cannot be said to be sufficient to impute to the Board the power to
allocate all the profits pursuant to the sale of assets. In fact, it is not necessary for the
Board in carrying out its mandate to order the utility to surrender the bulk of the
proceeds from a sale of its property in order for that utility to obtain approval for a sale.
The Board has other options within its jurisdiction which do not involve the
appropriation of the sale proceeds, the most obvious one being to refuse to approve a sale
that will, in the Board’s view, affect the quality and/or quantity of the service offered by
the utility or create additional operating costs for the future. This is not to say that the
Board can never attach a condition to the approval of sale. For example, the Board could
approve the sale of the assets on the condition that the utility company gives
undertakings regarding the replacement of the assets and their profitability. It could also
2006
SC
C 4
(C
anLI
I)
![Page 531: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/531.jpg)
(- 50 -
require as a condition that the utility reinvest part of the sale proceeds back into the
company in order to maintain a modern operating system that achieves the optimal
growth of the system.
78 In my view, allowing the Board to confiscate the net gain of the sale under
the pretence of protecting rate-paying customers and acting in the “public interest”
would be a serious misconception of the powers of the Board to approve a sale; to do so
would completely disregard the economic rationale of rate setting, as I explained earlier
in these reasons. Such an attempt by the Board to appropriate a utility’s excess net
revenues for ratepayers would be highly sophisticated opportunism and would, in the
end, simply increase the utility’s capital costs (MacAvoy and Sidak, at p. 246). At the
risk of repeating myself, a public utility is first and foremost a private business venture
which has as its goal the making of profits. This is not contrary to the legislative scheme,
even though the regulatory compact modifies the normal principles of economics with
various restrictions explicitly provided for in the various enabling statutes. None of the
three statutes applicable here provides the Board with the power to allocate the proceeds
of a sale and therefore affect the property interests of the public utility.
79 It is well established that potentially confiscatory legislative provision ought
to be construed cautiously so as not to strip interested parties of their rights without the
clear intention of the legislation (see Sullivan, at pp. 400-403; Côté, at pp. 482-86;
Pacific National Investments Ltd. v. Victoria (City), [2000] 2 S.C.R. 919, 2000 SCC 64,
at para. 26; Leiriao v. Val-Bélair (Town), [1991] 3 S.C.R. 349, at p. 357; Hongkong Bank
of Canada v. Wheeler Holdings Ltd., [1993] 1 S.C.R. 167, at p. 197). Not only is the
authority to attach a condition to allocate the proceeds of a sale to a particular party
unnecessary for the Board to accomplish its role, but deciding otherwise would lead to
2006
SC
C 4
(C
anLI
I)
![Page 532: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/532.jpg)
(- 51 -
the conclusion that a broadly drawn power can be interpreted so as to encroach on the
economic freedom of the utility, depriving it of its rights. This would go against the
above principles of interpretation.
80 If the Alberta legislature wishes to confer on ratepayers the economic
benefits resulting from the sale of utility assets, it can expressly provide for this in the
legislation, as was done by some states in the United States (e.g., Connecticut).
2.4 Other Considerations
81 Under the regulatory compact, customers are protected through the rate-
setting process, under which the Board is required to make a well-balanced
determination. The record shows that the City did not submit to the Board a general rate
review application in response to ATCO’s application requesting approval for the sale
of the property at issue in this case. Nonetheless, if it chose to do so, this would not have
stopped the Board, on its own initiative, from convening a hearing of the interested
parties in order to modify and fix just and reasonable rates to give due consideration to
any new economic data anticipated as a result of the sale (PUBA, s. 89(a); GUA, ss. 24,
36(a), 37(3), 40) (see Appendix).
2.5 If Jurisdiction Had Been Found, Was the Board’s Allocation Reasonable?
82 In light of my conclusion with regard to jurisdiction, it is not necessary to
determine whether the Board’s exercise of discretion by allocating the sale proceeds as
it did was reasonable. Nonetheless, given the reasons of my colleague Binnie J., I will
address the issue very briefly. Had I not concluded that the Board lacked jurisdiction, my
2006
SC
C 4
(C
anLI
I)
![Page 533: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/533.jpg)
(- 52 -
disposition of this case would have been the same, as I do not believe the Board met a
reasonable standard when it exercised its power.
83 I am not certain how one could conclude that the Board’s allocation was
reasonable when it wrongly assumed that ratepayers had acquired a proprietary interest
in the utility’s assets because assets were a factor in the rate-setting process, and,
moreover, when it explicitly concluded that no harm would ensue to customers from the
sale of the asset. In my opinion, when reviewing the substance of the Board’s decision,
a court must conduct a two-step analysis: first, it must determine whether the order was
warranted given the role of the Board to protect the customers (i.e., was the order
necessary in the public interest?); and second, if the first question is answered in the
affirmative, a court must then examine the validity of the Board’s application of the
TransAlta Formula (see para. 12 of these reasons), which refers to the difference
between net book value and original cost, on the one hand, and appreciation in the value
of the asset on the other. For the purposes of this analysis, I view the second step as a
mathematical calculation and nothing more. I do not believe it provides the criteria
which guides the Board to determine if it should allocate part of the sale proceeds to
ratepayers. Rather, it merely guides the Board on what to allocate and how to allocate
it (if it should do so in the first place). It is also interesting to note that there is no
discussion of the fact that the book value used in the calculation must be referable solely
to the financial statements of the utility.
84 In my view, as I have already stated, the power of the Board to allocate
proceeds does not even arise in this case. Even by the Board’s own reasoning, it should
only exercise its discretion to act in the public interest when customers would be harmed
2006
SC
C 4
(C
anLI
I)
![Page 534: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/534.jpg)
(- 53 -
or would face some risk of harm. But the Board was clear: there was no harm or risk of
harm in the present situation:
With the continuation of the same level of service at other locations andthe acceptance by customers regarding the relocation, the Board isconvinced there should be no impact on the level of service to customers asa result of the Sale. In any event, the Board considers that the service levelto customers is a matter that can be addressed and remedied in a futureproceeding if necessary.
(Decision 2002-037, at para. 54)
After declaring that the customers would not, on balance, be harmed, the Board
maintained that, on the basis of the evidence filed, there appeared to be a cost savings
to the customers. There was no legitimate customer interest which could or needed to be
protected by denying approval of the sale, or by making approval conditional on a
particular allocation of the proceeds. Even if the Board had found a possible adverse
effect arising from the sale, how could it allocate proceeds now based on an unquantified
future potential loss? Moreover, in the absence of any factual basis to support it, I am
also concerned with the presumption of bad faith on the part of ATCO that appears to
underlie the Board’s determination to protect the public from some possible future
menace. In any case, as mentioned earlier in these reasons, this determination to protect
the public interest is also difficult to reconcile with the actual power of the Board to
prevent harm to ratepayers from occurring by simply refusing to approve the sale of a
utility’s asset. To that, I would add that the Board has considerable discretion in the
setting of future rates in order to protect the public interest, as I have already stated.
85 In consequence, I am of the view that, in the present case, the Board did not
identify any public interest which required protection and there was, therefore, nothing
to trigger the exercise of the discretion to allocate the proceeds of sale. Hence,
2006
SC
C 4
(C
anLI
I)
![Page 535: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/535.jpg)
(- 54 -
notwithstanding my conclusion on the first issue regarding the Board’s jurisdiction, I
would conclude that the Board’s decision to exercise its discretion to protect the public
interest did not meet a reasonable standard.
3. Conclusion
86 This Court’s role in this case has been one of interpreting the enabling
statutes using the appropriate interpretive tools, i.e., context, legislative intention and
objective. Going further than required by reading in unnecessary powers of an
administrative agency under the guise of statutory interpretation is not consistent with
the rules of statutory interpretation. It is particularly dangerous to adopt such an
approach when property rights are at stake.
87 The Board did not have the jurisdiction to allocate the proceeds of the sale
of the utility’s asset; its decision did not meet the correctness standard. Thus, I would
dismiss the City’s appeal and allow ATCO’s cross-appeal, both with costs. I would also
set aside the Board’s decision and refer the matter back to the Board to approve the sale
of the property belonging to ATCO, recognizing that the proceeds of the sale belong to
ATCO.
The reasons of McLachlin C.J. and Binnie and Fish JJ. were delivered by
88 BINNIE J. (dissenting) — The respondent ATCO Gas and Pipelines Ltd.
(“ATCO”) is part of a large entrepreneurial company that directly and through various
subsidiaries operates both regulated businesses and unregulated businesses. The Alberta
Energy and Utilities Board (“Board”) believes it not to be in the public interest to
2006
SC
C 4
(C
anLI
I)
![Page 536: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/536.jpg)
(- 55 -
encourage utility companies to mix together the two types of undertakings. In particular,
the Board has adopted policies to discourage utilities from using their regulated
businesses as a platform to engage in land speculation to increase their return on
investment outside the regulatory framework. By awarding part of the profit to the
utility (and its shareholders), the Board rewards utilities for diligence in divesting
themselves of assets that are no longer productive, or that could be more productively
employed elsewhere. However, by crediting part of the profit on the sale of such
property to the utility’s rate base (i.e. as a set-off to other costs), the Board seeks to
dampen any incentive for utilities to skew decisions in their regulated business to favour
such profit taking unduly. Such a balance, in the Board’s view, is necessary in the
interest of the public which allows ATCO to operate its utility business as a monopoly.
In pursuit of this balance, the Board approved ATCO’s application to sell land and
warehousing facilities in downtown Calgary, but denied ATCO’s application to keep for
its shareholders the entire profit resulting from appreciation in the value of the land,
whose cost of acquisition had formed part of the rate base on which gas rates had been
calculated since 1922. The Board ordered the profit on the sale to be allocated one third
to ATCO and two thirds as a credit to its cost base, thereby helping keep utility rates
down, and to that extent benefiting ratepayers.
89 I have read with interest the reasons of my colleague Bastarache J. but, with
respect, I do not agree with his conclusion. As will be seen, the Board has authority
under s. 15(3) of the Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17
(“AEUBA”), to impose on the sale “any additional conditions that the Board considers
necessary in the public interest”. Whether or not the conditions of approval imposed by
the Board were necessary in the public interest was for the Board to decide. The Alberta
Court of Appeal overruled the Board but, with respect, the Board is in a better position
2006
SC
C 4
(C
anLI
I)
![Page 537: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/537.jpg)
(- 56 -
to assess necessity in this field for the protection of the public interest than either that
court or this Court. I would allow the appeal and restore the Board’s decision.
I. Analysis
90 ATCO’s argument boils down to the proposition announced at the outset of
its factum:
In the absence of any property right or interest and of any harm to thecustomers arising from the withdrawal from utility service, there was noproper ground for reaching into the pocket of the utility. In essence this caseis about property rights.
(Respondent’s factum, at para. 2)
91 For the reasons which follow I do not believe the case is about property
rights. ATCO chose to make its investment in a regulated industry. The return on
investment in the regulated gas industry is fixed by the Board, not the free market. In
my view, the essential issue is whether the Alberta Court of Appeal was justified in
limiting what the Board is allowed to “conside[r] necessary in the public interest”.
A. The Board’s Statutory Authority
92 The first question is one of jurisdiction. What gives the Board the authority
to make the order ATCO complains about? The Board’s answer is threefold. Section
22(1) of the Gas Utilities Act, R.S.A. 2000, c. G-5 (“GUA”), provides in part that “[t]he
Board shall exercise a general supervision over all gas utilities, and the owners of them
. . .”. This, the Board says, gives it a broad jurisdiction to set policies that go beyond its
specific powers in relation to specific applications, such as rate setting. Of more
2006
SC
C 4
(C
anLI
I)
![Page 538: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/538.jpg)
(- 57 -
immediate pertinence, s. 26(2)(d)(i) of the same Act prohibits the regulated utility from
selling, leasing or otherwise encumbering any of its property without the Board’s
approval. (To the same effect, see s. 101(2)(d)(i) of the Public Utilities Board Act,
R.S.A. 2000, c. P-45.) It is common ground that this restraint on alienation of property
applies to the proposed sale of ATCO’s land and warehouse facilities in downtown
Calgary, and that the Board could, in appropriate circumstances, simply have denied
ATCO’s application for approval of the sale. However, the Board was of the view to
allow the sale subject to conditions. The Board ruled that the greater power (i.e. to deny
the sale) must include the lesser (i.e. to allow the sale, subject to conditions):
In appropriate circumstances, the Board clearly has the power to prevent autility from disposing of its property. In the Board’s view it also followsthat the Board can approve a disposition subject to appropriate conditionsto protect customer interests.
(Decision 2002-037, [2002] A.E.U.B.D. No. 52 (QL), at para. 47)
There is no need to rely on any such implicit power to impose conditions, however. As
stated, the Board’s explicit power to impose conditions is found in s. 15(3) of the
AEUBA, which authorizes the Board to “make any further order and impose any
additional conditions that the Board considers necessary in the public interest”. In Atco
Ltd. v. Calgary Power Ltd., [1982] 2 S.C.R. 557, at p. 576, Estey J., for the majority,
stated:
It is evident from the powers accorded to the Board by the legislaturein both statutes mentioned above that the legislature has given the Board amandate of the widest proportions to safeguard the public interest in thenature and quality of the service provided to the community by the publicutilities. [Emphasis added.]
2006
SC
C 4
(C
anLI
I)
![Page 539: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/539.jpg)
(- 58 -
The legislature says in s. 15(3) that the conditions are to be what the Board considers
necessary. Of course, the discretionary power to impose conditions thus granted is not
unlimited. It must be exercised in good faith for its intended purpose: C.U.P.E. v.
Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. ATCO says the Board
overstepped even these generous limits. In ATCO’s submission:
Deployment of the asset in utility service does not create or transfer anylegal or equitable rights in that property for ratepayers. Absent any suchinterest, any taking such as ordered by the Board is confiscatory . . . .
(Respondent’s factum, at para. 38)
In my view, however, the issue before the Board was how much profit ATCO was
entitled to earn on its investment in a regulated utility.
93 ATCO argues in the alternative that the Board engaged in impermissible
“retroactive rate making”. But Alberta is an “original cost” jurisdiction, and no one
suggests that the Board’s original cost rate making during the 80-plus years this
investment has been reflected in ATCO’s ratebase was wrong. The Board proposed to
apply a portion of the expected profit to future rate making. The effect of the order is
prospective, not retroactive. Fixing the going-forward rate of return as well as general
supervision of “all gas utilities, and the owners of them” were matters squarely within
the Board’s statutory mandate.
B. The Board’s Decision
94 ATCO argues that the Board’s decision should be seen as a stand-alone
decision divorced from its rate-making responsibilities. However, I do not agree that the
2006
SC
C 4
(C
anLI
I)
![Page 540: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/540.jpg)
(- 59 -
hearing under s. 26 of the GUA can be isolated in this way from the Board’s general
regulatory responsibilities. ATCO argues in its factum that
the subject application by [ATCO] to the Board did not concern or relate toa rate application, and the Board was not engaged in fixing rates (if thatcould provide any justification, which is denied).
(Respondent’s factum, at para. 98)
95 It seems the Board proceeded with the s. 26 approval hearing separately from
a rate setting hearing firstly because ATCO framed the proceeding in that way and
secondly because this is the procedure approved by the Alberta Court of Appeal in
TransAlta Utilities Corp. v. Public Utilities Board (Alta.) (1986), 68 A.R. 171. That case
(which I will refer to as TransAlta (1986)) is a leading Alberta authority dealing with the
allocation of the gain on the disposal of utility assets and the source of what is called the
TransAlta Formula applied by the Board in this case. Kerans J.A. had this to say, at p.
174:
I observe parenthetically that I now appreciate that it suits the convenienceof everybody involved to resolve issues of this sort, if possible, before ageneral rate hearing so as to lessen the burden on that already complexprocedure.
96 Given this encouragement from the Alberta Court of Appeal, I would place
little significance on ATCO’s procedural point. As will be seen, the Board’s ruling is
directly tied into the setting of general rates because two thirds of the profit is taken into
account as an offset to ATCO’s costs from which its revenue requirement is ultimately
derived. As stated, ATCO’s profit on the sale of the Calgary property will be a current
(not historical) receipt and, if the Board has its way, two thirds of it will be applied to
future (not retroactive) rate making.
2006
SC
C 4
(C
anLI
I)
![Page 541: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/541.jpg)
(- 60 -
97 The s. 26 hearing proceeded in two phases. The Board first determined that
it would not deny its approval to the proposed sale as it met a “no-harm test” devised
over the years by Board practice (it is not to be found in the statutes) (Decision 2001-78).
However, the Board linked its approval to subsequent consideration of the financial
ramifications, as the Board itself noted:
The Board approved the Sale in Decision 2001-78 based on evidence thatcustomers did not object to the Sale [and] would not suffer a reduction inservices nor would they be exposed to the risk of financial harm as a resultof the Sale that could not be examined in a future proceeding. On that basisthe Board determined that the no-harm test had been satisfied and that theSale could proceed. [Underlining and italics added.]
(Decision 2002-037, at para. 13)
98 In effect, ATCO ignores the italicized words. It argues that the Board was
functus after the first phase of its hearing. However, ATCO itself had agreed to the two-
phase procedure, and indeed the second phase was devoted to ATCO’s own application
for an allocation of the profits on the sale.
99 In the second phase of the s. 26 approval hearing, the Board allocated one
third of the net gain to ATCO and two thirds to the rate base (which would benefit
ratepayers). The Board spelled out why it considered these conditions to be necessary
in the public interest. The Board explained that it was necessary to balance the interests
of both shareholders and ratepayers within the framework of what it called “the
regulatory compact” (Decision 2002-037, at para. 44). In the Board’s view:
(a) there ought to be a balancing of the interests of the ratepayers and the
owners of the utility;
2006
SC
C 4
(C
anLI
I)
![Page 542: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/542.jpg)
(- 61 -
(b) decisions made about the utility should be driven by both parties’
interests;
(c) to award the entire gain to the ratepayers would deny the utility an
incentive to increase its efficiency and reduce its costs; and
(d) to award the entire gain to the utility might encourage speculation in
non-depreciable property or motivate the utility to identify and dispose of
properties which have appreciated for reasons other than the best interest of
the regulated business.
100 For purposes of this appeal, it is important to set out the Board’s policy
reasons in its own words:
To award the entire net gain on the land and buildings to the customers,while beneficial to the customers, could establish an environment that maydeter the process wherein the company continually assesses its operation toidentify, evaluate, and select options that continually increase efficiency andreduce costs.
Conversely, to award the entire net gain to the company may establishan environment where a regulated utility company might be moved tospeculate in non-depreciable property or result in the company beingmotivated to identify and sell existing properties where appreciation hasalready occurred.
The Board believes that some method of balancing both parties’interests will result in optimization of business objectives for both thecustomer and the company. Therefore, the Board considers that sharing ofthe net gain on the sale of the land and buildings collectively in accordancewith the TransAlta Formula is equitable in the circumstances of thisapplication and is consistent with past Board decisions. [Emphasis added;paras. 112-14.]
2006
SC
C 4
(C
anLI
I)
![Page 543: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/543.jpg)
(- 62 -
101 The Court was advised that the two-third share allocated to ratepayers would
be included in ATCO’s rate calculation to set off against the costs included in the rate
base and amortized over a number of years.
C. Standard of Review
102 The Court’s modern approach to this vexed question was recently set out by
McLachlin C.J. in Dr. Q v. College of Physicians and Surgeons of British Columbia,
[2003] 1 S.C.R. 226, 2003 SCC 19, at para. 26:
In the pragmatic and functional approach, the standard of review isdetermined by considering four contextual factors — the presence orabsence of a privative clause or statutory right of appeal; the expertise of thetribunal relative to that of the reviewing court on the issue in question; thepurposes of the legislation and the provision in particular; and, the nature ofthe question — law, fact, or mixed law and fact. The factors may overlap.The overall aim is to discern legislative intent, keeping in mind theconstitutional role of the courts in maintaining the rule of law.
103 I do not propose to cover the ground already set out in the reasons of my
colleague Bastarache J. We agree that the standard of review on matters of jurisdiction
is correctness. We also agree that the Board’s exercise of its jurisdiction calls for greater
judicial deference. Appeals from the Board are limited to questions of law or
jurisdiction. The Board knows a great deal more than the courts about gas utilities, and
what limits it is necessary to impose “in the public interest” on their dealings with assets
whose cost is included in the rate base. Moreover, it is difficult to think of a broader
discretion than that conferred on the Board to “impose any additional conditions that the
Board considers necessary in the public interest” (s. 15(3)(d) of the AEUBA). The
identification of a subjective discretion in the decision maker (“the Board considers
necessary”), the expertise of that decision maker and the nature of the decision to be
2006
SC
C 4
(C
anLI
I)
![Page 544: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/544.jpg)
(- 63 -
made (“in the public interest”), in my view, call for the most deferential standard, patent
unreasonableness.
104 As to the phrase “the Board considers necessary”, Martland J. stated in
Calgary Power Ltd. v. Copithorne, [1959] S.C.R. 24, at p. 34:
The question as to whether or not the respondent’s lands were“necessary” is not one to be determined by the Courts in this case. Thequestion is whether the Minister “deemed” them to be necessary.
See also D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in
Canada (loose-leaf ed.), vol. 1, at para. 14:2622: “‘Objective’ and ‘Subjective’ Grants
of Discretion”.
105 The expert qualifications of a regulatory Board are of “utmost importance
in determining the intention of the legislator with respect to the degree of deference to
be shown to a tribunal’s decision in the absence of a full privative clause”, as stated by
Sopinka J. in United Brotherhood of Carpenters and Joiners of America, Local 579 v.
Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 335. He continued:
Even where the tribunal’s enabling statute provides explicitly for appellatereview, as was the case in Bell Canada [v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722],it has been stressed that deference should be shown by the appellate tribunalto the opinions of the specialized lower tribunal on matters squarely withinits jurisdiction.
(This dictum was cited with approval in Pezim v. British Columbia (Superintendent of
Brokers), [1994] 2 S.C.R. 557, at p. 592.)
2006
SC
C 4
(C
anLI
I)
![Page 545: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/545.jpg)
(- 64 -
106 A regulatory power to be exercised “in the public interest” necessarily
involves accommodation of conflicting economic interests. It has long been recognized
that what is “in the public interest” is not really a question of law or fact but is an
opinion. In TransAlta (1986), the Alberta Court of Appeal (at para. 24) drew a parallel
between the scope of the words “public interest” and the well-known phrase “public
convenience and necessity” in its citation of Memorial Gardens Association (Canada)
Ltd. v. Colwood Cemetery Co., [1958] S.C.R. 353, where this Court stated, at p. 357:
[T]he question whether public convenience and necessity requires a certainaction is not one of fact. It is predominantly the formulation of an opinion.Facts must, of course, be established to justify a decision by the Commissionbut that decision is one which cannot be made without a substantial exerciseof administrative discretion. In delegating this administrative discretion tothe Commission the Legislature has delegated to that body the responsibilityof deciding, in the public interest . . . . [Emphasis added.]
107 This passage reiterated the dictum of Rand J. in Union Gas Co. of Canada
Ltd. v. Sydenham Gas and Petroleum Co., [1957] S.C.R. 185, at p. 190:
It was argued, and it seems to have been the view of the Court, that thedetermination of public convenience and necessity was itself a question offact, but with that I am unable to agree: it is not an objective existence to beascertained; the determination is the formulation of an opinion, in this case,the opinion of the Board and of the Board only. [Emphasis added.]
108 Of course even such a broad power is not untrammelled. But to say that such
a power is capable of abuse does not lead to the conclusion that it should be truncated.
I agree on this point with Reid J. (co-author of R. F. Reid and H. David, Administrative
Law and Practice (2nd ed. 1978), and co-editor of P. Anisman and R. F. Reid,
Administrative Law Issues and Practice (1995)), who wrote in Re C.T.C. Dealer
2006
SC
C 4
(C
anLI
I)
![Page 546: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/546.jpg)
(- 65 -
Holdings Ltd. and Ontario Securities Commission (1987), 59 O.R. (2d) 79 (Div. Ct.),
in relation to the powers of the Ontario Securities Commission, at p. 97:
. . . when the Commission has acted bona fide, with an obvious and honestconcern for the public interest, and with evidence to support its opinion, theprospect that the breadth of its discretion might someday tempt it to placeitself above the law by misusing that discretion is not something that makesthe existence of the discretion bad per se, and requires the decision to bestruck down.
(The C.T.C. Dealer Holdings decision was referred to with apparent approval by this
Court in Committee for the Equal Treatment of Asbestos Minority Shareholders v.
Ontario (Securities Commission), [2001] 2 S.C.R. 132, 2001 SCC 37, at para. 42.)
109 “Patent unreasonableness” is a highly deferential standard:
A correctness approach means that there is only one proper answer. Apatently unreasonable one means that there could have been manyappropriate answers, but not the one reached by the decision maker.
(C.U.P.E., at para. 164)
110 Having said all that, in my view nothing much turns on the result on whether
the proper standard in that regard is patent unreasonableness (as I view it) or simple
reasonableness (as my colleague sees it). As will be seen, the Board’s response is well
within the range of established regulatory opinions. Hence, even if the Board’s
conditions were subject to the less deferential standard, I would find no cause for the
Court to interfere.
D. Did the Board Have Jurisdiction to Impose the Conditions It Did on the ApprovalOrder “In the Public Interest”?
2006
SC
C 4
(C
anLI
I)
![Page 547: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/547.jpg)
(- 66 -
111 ATCO says the Board had no jurisdiction to impose conditions that are
“confiscatory”. Framing the question in this way, however, assumes the point in issue.
The correct point of departure is not to assume that ATCO is entitled to the net gain and
then ask if the Board can confiscate it. ATCO’s investment of $83,000 was added in
increments to its regulatory cost base as the land was acquired from time to time between
1922 and 1965. It is in the nature of a regulated industry that the question of what is a
just and equitable return is determined by a board and not by the vagaries of the
speculative property market.
112 I do not think the legal debate is assisted by talk of “confiscation”. ATCO
is prohibited by statute from disposing of the asset without Board approval, and the
Board has statutory authority to impose conditions on its approval. The issue thus
necessarily turns not on the existence of the jurisdiction but on the exercise of the
Board’s jurisdiction to impose the conditions that it did, and in particular to impose a
shared allocation of the net gain.
E. Did the Board Improperly Exercise the Jurisdiction It Possessed to ImposeConditions the Board Considered “Necessary in the Public Interest”?
113 There is no doubt that there are many approaches to “the public interest”.
Which approach the Board adopts is largely (and inherently) a matter of opinion and
discretion. While the statutory framework of utilities regulation varies from jurisdiction
to jurisdiction, and practice in the United States must be read in light of the constitutional
protection of property rights in that country, nevertheless Alberta’s grant of authority to
its Board is more generous than most. ATCO concedes that its “property” claim would
have to give way to a contrary legislative intent, but ATCO says such intent cannot be
found in the statutes.
2006
SC
C 4
(C
anLI
I)
![Page 548: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/548.jpg)
(- 67 -
114 Most if not all regulators face the problem of how to allocate gains on
property whose original cost is included in the rate base but is no longer required to
provide the service. There is a wealth of regulatory experience in many jurisdictions that
the Board is entitled to (and does) have regard to in formulating its policies. Striking the
correct balance in the allocation of gains between ratepayers and investors is a common
preoccupation of comparable boards and agencies:
First, it prevents the utility from degrading the quality, or reducing thequantity, of the regulated service so as to harm consumers. Second, itensures that the utility maximizes the aggregate economic benefits of itsoperations, and not merely the benefits flowing to some interest group orstakeholder. Third, it specifically seeks to prevent favoritism towardinvestors to the detriment of ratepayers affected by the transaction.
(P. W. MacAvoy and J. G. Sidak, “The Efficient Allocation of Proceedsfrom a Utility’s Sale of Assets” (2001), 22 Energy L.J. 233, at p. 234)
115 The concern with which Canadian regulators view utilities under their
jurisdiction that are speculating in land is not new. In Re Consumers’ Gas Co., E.B.R.O.
341-I, June 30, 1976, the Ontario Energy Board considered how to deal with a real estate
profit on land which was disposed of at an after-tax profit of over $2 million. The Board
stated:
The Station “B” property was not purchased by Consumers’ for landspeculation but was acquired for utility purposes. This investment, whilenon-depreciable, was subject to interest charges and risk paid for throughrevenues and, until the gas manufacturing plant became obsolete, disposalof the land was not a feasible option. If, in such circumstances, the Boardwere to permit real estate profit to accrue to the shareholders only, it wouldtend to encourage real estate speculation with utility capital. In the Board’sopinion, the shareholders and the ratepayers should share the benefits ofsuch capital gains. [Emphasis added; para. 326.]
2006
SC
C 4
(C
anLI
I)
![Page 549: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/549.jpg)
(- 68 -
116 Some U.S. regulators also consider it good regulatory policy to allocate part
or all of the profit to offset costs in the rate base. In Re Boston Gas Co., 49 P.U.R. 4th
1 (Mass. D.P.U. 1982), the regulator allocated a gain on the sale of land to ratepayers,
stating:
The company and its shareholders have received a return on the use ofthese parcels while they have been included in rate base, and are not entitledto any additional return as a result of their sale. To hold otherwise would beto find that a regulated utility company may speculate in nondepreciableutility property and, despite earning a reasonable rate of return from itscustomers on that property, may also accumulate a windfall through its sale.We find this to be an uncharacteristic risk/reward situation for a regulatedutility to be in with respect to its plant in service. [Emphasis added; p. 26.]
117 Canadian regulators other than the Board are also concerned with the
prospect that decisions of utilities in their regulated business may be skewed under the
undue influence of prospective profits on land sales. In Re Consumers’ Gas Co.,
E.B.R.O. 465, March 1, 1991, the Ontario Energy Board determined that a $1.9 million
gain on sale of land should be divided equally between shareholders and ratepayers. It
held that
the allocation of 100 percent of the profit from land sales to either theshareholders or the ratepayers might diminish the recognition of the validconcerns of the excluded party. For example, the timing and intensity ofland purchase and sales negotiations could be skewed to favour or disregardthe ultimate beneficiary. [para. 3.3.8]
118 The Board’s principle of dividing the gain between investors and ratepayers
is consistent, as well, with Re Natural Resource Gas Ltd., RP-2002-0147, EB-2002-
0446, June 27, 2003, in which the Ontario Energy Board addressed the allocation of a
profit on the sale of land and buildings and again stated:
2006
SC
C 4
(C
anLI
I)
![Page 550: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/550.jpg)
(- 69 -
The Board finds that it is reasonable in the circumstances that the capitalgains be shared equally between the Company and its customers. In makingthis finding the Board has considered the non-recurring nature of thistransaction. [para. 45]
119 The wide variety of regulatory treatment of such gains was noted by Kerans
J.A. in TransAlta (1986), at pp. 175-76, including Re Boston Gas Co. mentioned earlier.
In TransAlta (1986), the Board characterized TransAlta’s gain on the disposal of land
and buildings included in its Edmonton “franchise” as “revenue” within the meaning of
the Hydro and Electric Energy Act, R.S.A. 1980, c. H-13. (The case therefore did not
deal with the power to impose conditions “the Board considers necessary in the public
interest”.) Kerans J.A. said (at p. 176):
I do not agree with the Board’s decision for reasons later expressed, butit would be fatuous to deny that its interpretation [of the word “revenue”] isone which the word can reasonably bear.
Kerans J.A. went on to find that in that case “[t]he compensation was, for all practical
purposes, compensation for loss of franchise” (p. 180) and on that basis the gain in these
“unique circumstances” (p. 179) could not, as a matter of law, be characterized as
revenue, i.e. applying a correctness standard. The range of regulatory practice on the
“gains on sale” issue was similarly noted by Goldie J.A. in Yukon Energy Corp. v.
Utilities Board (1996), 74 B.C.A.C. 58 (Y.C.A.), at para. 85.
120 A survey of recent regulatory experience in the United States reveals the
wide variety of treatment in that country of gains on the sale of undepreciated land. The
range includes proponents of ATCO’s preferred allocation as well as proponents of the
solution adopted by the Board in this case:
2006
SC
C 4
(C
anLI
I)
![Page 551: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/551.jpg)
(- 70 -
Some jurisdictions have concluded that as a matter of equity,shareholders alone should benefit from any gain realized on appreciated realestate, because ratepayers generally pay only for taxes on the land and donot contribute to the cost of acquiring the property and pay no depreciationexpenses. Under this analysis, ratepayers assume no risk for losses andacquire no legal or equitable interest in the property, but rather pay only forthe use of the land in utility service.
Other jurisdictions claim that ratepayers should retain some of thebenefits associated with the sale of property dedicated to utility service.Those jurisdictions that have adopted an equitable sharing approach agreethat a review of regulatory and judicial decisions on the issue does not revealany general principle that requires the allocation of benefits solely toshareholders; rather, the cases show only a general prohibition againstsharing benefits on the sale property that has never been reflected in utilityrates.
(P. S. Cross, “Rate Treatment of Gain on Sale of Land: RatepayerIndifference, A New Standard?” (1990), 126 Pub. Util. Fort. 44, at p. 44)
Regulatory opinion in the United States favourable to the solution adopted here by the
Board is illustrated by Re Arizona Public Service Co., 91 P.U.R. 4th 337 (Ariz. C.C.
1988), at p. 361:
To the extent any general principles can be gleaned from the decisions inother jurisdictions they are: (1) the utility’s stockholders are notautomatically entitled to the gains from all sales of utility property; and (2)ratepayers are not entitled to all or any part of a gain from the sale ofproperty which has never been reflected in the utility’s rates. [Emphasis inoriginal.]
121 Assets purchased with capital reflected in the rate base come and go, but the
utility itself endures. What was done by the Board in this case is quite consistent with
the “enduring enterprise” theory espoused, for example, in Re Southern California Water
Co., 43 C.P.U.C. 2d 596 (1992). In that case, Southern California Water had asked for
approval to sell an old headquarters building and the issue was how to allocate its profits
on the sale. The Commission held:
2006
SC
C 4
(C
anLI
I)
![Page 552: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/552.jpg)
(- 71 -
Working from the principle of the “enduring enterprise”, the gain-on-salefrom this transaction should remain within the utility’s operations ratherthan being distributed in the short run directly to either ratepayers orshareholders.
The “enduring enterprise” principle, is neither novel nor radical. It wasclearly articulated by the Commission in its seminal 1989 policy decision onthe issue of gain-on-sale, D.89-07-016, 32 Cal. P.U.C.2d 233 (Redding).Simply stated, to the extent that a utility realizes a gain-on-sale from theliquidation of an asset and replaces it with another asset or obligation whileat the same time its responsibility to serve its customers is neither relievednor reduced, then any gain-on-sale should remain within the utility’soperation. [p. 604]
122 In my view, neither the Alberta statutes nor regulatory practice in Alberta
and elsewhere dictates the answer to the problems confronting the Board. It would have
been open to the Board to allow ATCO’s application for the entire profit. But the
solution it adopted was quite within its statutory authority and does not call for judicial
intervention.
F. ATCO’s Arguments
123 Most of ATCO’s principal submissions have already been touched on but
I will repeat them here for convenience. ATCO does not really dispute the Board’s
ability to impose conditions on the sale of land. Rather, ATCO says that what the Board
did here violates a number of basic legal protections and principles. It asks the Court to
clip the Board’s wings.
124 Firstly, ATCO says that customers do not acquire any proprietary right in the
company’s assets. ATCO, rather than its customers, originally purchased the property,
held title to it, and therefore was entitled to any gain on its sale. An allocation of profit
to the customers would amount to a confiscation of the corporation’s property.
2006
SC
C 4
(C
anLI
I)
![Page 553: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/553.jpg)
(- 72 -
125 Secondly, ATCO says its retention of 100 percent of the gain has nothing to
do with the so-called “regulatory compact”. The gas customers paid what the Board
regarded over the years as a fair price for safe and reliable service. That is what the
ratepayers got and that is all they were entitled to. The Board’s allocation of part of the
profit to the ratepayers amounts to impermissible “retroactive” rate setting.
126 Thirdly, utilities are not entitled to include in the rate base an amount for
depreciation on land and ratepayers have therefore not repaid ATCO any part of
ATCO’s original cost, let alone the present value. The treatment accorded gain on sales
of depreciated property therefore does not apply.
127 Fourthly, ATCO complains that the Board’s solution is asymmetrical.
Ratepayers are given part of the benefit of an increase in land values without, in a falling
market, bearing any part of the burden of losses on the disposition of land.
128 In my view, these are all arguments that should be (and were) properly
directed to the Board. There are indeed precedents in the regulatory field for what
ATCO proposes, just as there are precedents for what the ratepayers proposed. It was
for the Board to decide what conditions in these particular circumstances were necessary
in the public interest. The Board’s solution in this case is well within the range of
reasonable options, as I will endeavour to demonstrate.
1. The Confiscation Issue
2006
SC
C 4
(C
anLI
I)
![Page 554: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/554.jpg)
(- 73 -
129 In its factum, ATCO says that “[t]he property belonged to the owner of the
utility and the Board’s proposed distribution cannot be characterized otherwise than as
being confiscatory” (respondent’s factum, at para. 6). ATCO’s argument overlooks the
obvious difference between investment in an unregulated business and investment in a
regulated utility where the regulator sets the return on investment, not the marketplace.
In Re Southern California Gas Co., 118 P.U.R. 4th 81 (C.P.U.C. 1990) (“SoCalGas”),
the regulator pointed out:
In the non-utility private sector, investors are not guaranteed to earn a fairreturn on such sunk investment. Although shareholders and bondholdersprovide the initial capital investment, the ratepayers pay the taxes,maintenance, and other costs of carrying utility property in rate base over theyears, and thus insulate utility investors from the risk of having to pay thosecosts. Ratepayers also pay the utility a fair return on property (includingland) while it is in rate base, compensate the utility for the diminishment ofthe value of its depreciable property over time through depreciationaccounting, and bear the risk that they must pay depreciation and a return onprematurely retired rate base property. [p. 103]
(It is understood, of course, that the Board does not appropriate the actual proceeds of
sale. What happens is that an amount equivalent to two-thirds of the profit is included
in the calculation of ATCO’s current cost base for rate-making purposes. In that way,
there is a notional distribution of the benefit of the gain amongst the competing
stakeholders.)
130 ATCO’s argument is frequently asserted in the United States under the flag
of constitutional protection for “property”. Constitutional protection has not however
prevented allocation of all or part of such gains to the U.S. ratepayers. One of the
leading U.S. authorities is Democratic Central Committee of the District of Columbia
v. Washington Metropolitan Area Transit Commission, 485 F.2d 786 (D.C. Cir. 1973).
In that case, the assets at issue were parcels of real estate which had been employed in
2006
SC
C 4
(C
anLI
I)
![Page 555: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/555.jpg)
(- 74 -
mass transit operations but which were no longer needed when the transit system
converted to buses. The regulator awarded the profit on the appreciated land values to
the shareholders but the Court of Appeals reversed the decision, using language directly
applicable to ATCO’s “confiscation” argument:
We perceive no impediment, constitutional or otherwise, to recognitionof a ratemaking principle enabling ratepayers to benefit from appreciationsin value of utility properties accruing while in service. We believe thedoctrinal consideration upon which pronouncements to the contrary haveprimarily rested has lost all present-day vitality. Underlying thesepronouncements is a basic legal and economic thesis — sometimesarticulated, sometimes implicit — that utility assets, though dedicated to thepublic service, remain exclusively the property of the utility’s investors, andthat growth in value is an inseparable and inviolate incident of that propertyinterest. The precept of private ownership historically pervading ourjurisprudence led naturally to such a thesis, and early decisions in theratemaking field lent some support to it; if still viable, it strengthens theinvestor’s claim. We think, however, after careful exploration, that thefoundations for that approach, and the conclusion it seemed to indicate, havelong since eroded away. [p. 800]
The court’s reference to “pronouncements” which have “lost all present-day vitality”
likely includes Board of Public Utility Commissioners v. New York Telephone Co., 271
U.S. 23 (1976), a decision relied upon in this case by ATCO. In that case, the Supreme
Court of the United States said:
Customers pay for service, not for the property used to render it. Theirpayments are not contributions to depreciation or other operating expensesor to capital of the company. By paying bills for service they do not acquireany interest, legal or equitable, in the property used for their convenience orin the funds of the company. Property paid for out of moneys received forservice belongs to the company just as does that purchased out of proceedsof its bonds and stock. [p. 32]
In that case, the regulator belatedly concluded that the level of depreciation allowed the
New York Telephone Company had been excessive in past years and sought to remedy
2006
SC
C 4
(C
anLI
I)
![Page 556: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/556.jpg)
(- 75 -
the situation in the current year by retroactively adjusting the cost base. The court held
that the regulator had no power to re-open past rates. The financial fruits of the
regulator’s errors in past years now belonged to the company. That is not this case. No
one contends that the Board’s prior rates, based on ATCO’s original investment, were
wrong. In 2001, when the matter came before the Board, the Board had jurisdiction to
approve or not approve the proposed sale. It was not a done deal. The receipt of any
profit by ATCO was prospective only. As explained in Re Arizona Public Service Co.:
In New York Telephone, the issue presented was whether a stateregulatory commission could use excessive depreciation accruals from prioryears to reduce rates for future service and thereby set rates which did notyield a just return. . . . [T]he Court simply reiterated and provided thereasons for a ratemaking truism: rates must be designed to produce enoughrevenue to pay current (reasonable) operating expenses and provide a fairreturn to the utility’s investors. If it turns out that, for whatever reason,existing rates have produced too much or too little income, the past is past.Rates are raised or lowered to reflect current conditions; they are notdesigned to pay back past excessive profits or recoup past operating losses.In contrast, the issue in this proceeding is whether for ratemaking purposesa utility’s test year income from sales of utility service can include itsincome from sales of utility property. The United States Supreme Court’sdecision in New York Telephone does not address that issue. [Emphasisadded; p. 361.]
131 More recently, the allocation of gain on sale was addressed by the California
Public Utilities Commission in SoCalGas. In that case, as here, the utility (SoCalGas)
wished to sell land and buildings located (in that case) in downtown Los Angeles. The
Commission apportioned the gain on sale between the shareholders and the ratepayers,
concluding that:
We believe that the issue of who owns the utility property providingutility service has become a red herring in this case, and that ownershipalone does not determine who is entitled to the gain on the sale of theproperty providing utility service when it is removed from rate base andsold. [p. 100]
2006
SC
C 4
(C
anLI
I)
![Page 557: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/557.jpg)
(- 76 -
132 ATCO argues in its factum that ratepayers “do not acquire any interest, legal
or equitable, in the property used to provide the service or in the funds of the owner of
the utility” (para. 2). In SoCalGas, the regulator disposed of this point as follows:
No one seriously argues that ratepayers acquire title to the physical propertyassets used to provide utility service; DRA [Division of RatepayerAdvocates] argues that the gain on sale should reduce future revenuerequirements not because ratepayers own the property, but rather becausethey paid the costs and faced the risks associated with that property while itwas in rate base providing public service. [p. 100]
This “risk” theory applies in Alberta as well. Over the last 80 years, there have been
wild swings in Alberta real estate, yet through it all, in bad times and good, the
ratepayers have guaranteed ATCO a just and equitable return on its investment in this
land and these buildings.
133 The notion that the division of risk justifies a division of the net gain was
also adopted by the regulator in SoCalGas:
Although the shareholders and bondholders provided the initial capitalinvestment, the ratepayers paid the taxes, maintenance, and other costs ofcarrying the land and buildings in rate base over the years, and paid theutility a fair return on its unamortized investment in the land and buildingswhile they were in rate base. [p. 110]
In other words, even in the United States, where property rights are constitutionally
protected, ATCO’s “confiscation” point is rejected as an oversimplification.
134 My point is not that the Board’s allocation in this case is necessarily correct
in all circumstances. Other regulators have determined that the public interest requires
a different allocation. The Board proceeds on a “case-by-case” basis. My point simply
2006
SC
C 4
(C
anLI
I)
![Page 558: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/558.jpg)
(- 77 -
is that the Board’s response in this case cannot be considered “confiscatory” in any
proper use of the term, and is well within the range of what are regarded in comparable
jurisdictions as appropriate regulatory responses to the allocation of the gain on sale of
land whose original investment has been included by the utility itself in its rate base.
The Board’s decision is protected by a deferential standard of review and in my view it
should not have been set aside.
2. The Regulatory Compact
135 The Board referred in its decision to the “regulatory compact” which is a
loose expression suggesting that in exchange for a statutory monopoly and receipt of
revenue on a cost plus basis, the utility accepts limitations on its rate of return and its
freedom to do as it wishes with property whose cost is reflected in its rate base. This was
expressed in the Washington Metropolitan Area Transit case by the U.S. Court of
Appeals for the District of Columbia Circuit as follows:
The ratemaking process involves fundamentally “a balancing of theinvestor and the consumer interests”. The investor’s interest lies in theintegrity of his investment and a fair opportunity for a reasonable returnthereon. The consumer’s interest lies in governmental protection againstunreasonable charges for the monopolistic service to which he subscribes.In terms of property value appreciations, the balance is best struck at thepoint at which the interests of both groups receive maximumaccommodation. [p. 806]
136 ATCO considers that the Board’s allocation of profit violated the regulatory
compact not only because it is confiscatory but because it amounts to “retroactive rate
making”. In Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684, Estey
J. stated, at p. 691:
2006
SC
C 4
(C
anLI
I)
![Page 559: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/559.jpg)
(- 78 -
It is clear from many provisions of The Gas Utilities Act that the Board mustact prospectively and may not award rates which will recover expensesincurred in the past and not recovered under rates established for pastperiods.
137 As stated earlier, the Board in this case was addressing a prospective receipt
and allocated two thirds of it to a prospective (not retroactive) rate-making exercise.
This is consistent with regulatory practice, as is illustrated by New York Water Service
Corp. v. Public Service Commission, 208 N.Y.S.2d 857 (1960). In that case, a utility
commission ruled that gains on the sale of real estate should be taken into account to
reduce rates annually over the following period of 17 years :
If land is sold at a profit, it is required that the profit be added to, i.e.,“credited to”, the depreciation reserve, so that there is a correspondingreduction of the rate base and resulting return. [p. 864]
The regulator’s order was upheld by the New York State Supreme Court (Appellate
Division).
138 More recently, in Re Compliance with the Energy Policy Act of 1992, 62
C.P.U.C. 2d 517 (1995), the regulator commented:
. . . we found it appropriate to allocate the principal amount of the gain tooffset future costs of headquarters facilities, because ratepayers had bornethe burden of risks and expenses while the property was in ratebase. At thesame time, we found that it was equitable to allocate a portion of the benefitsfrom the gain-on-sale to shareholders in order to provide a reasonableincentive to the utility to maximize the proceeds from selling such propertyand compensate shareholders for any risks borne in connection with holdingthe former property. [p. 529]
2006
SC
C 4
(C
anLI
I)
![Page 560: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/560.jpg)
(- 79 -
139 The emphasis in all these cases is on balancing the interests of the
shareholders and the ratepayers. This is perfectly consistent with the “regulatory
compact” approach reflected in the Board doing what it did in this case.
3. Land as a Non-Depreciable Asset
140 The Alberta Court of Appeal drew a distinction between gains on sale of
land, whose original cost is not depreciated (and thus is not repaid in increments through
the rate base) and depreciated property such as buildings where the rate base does
include a measure of capital repayment and which in that sense the ratepayers have “paid
for”. The Alberta Court of Appeal held that the Board was correct to credit the rate base
with an amount equivalent to the depreciation paid in respect of the buildings (this is the
subject matter of ATCO’s cross-appeal). Thus, in this case, the land was still carried on
ATCO’s books at its original price of $83,720 whereas the original $596,591 cost of the
buildings had been depreciated through the rates charged customers to a net book value
of $141,525.
141 Regulatory practice shows that many (not all) regulators also do not accept
the distinction (for this purpose) between depreciable and non-depreciable assets. In Re
Boston Gas Co. for example (cited in TransAlta (1986), at p. 176), the regulator held:
. . . the company’s ratepayers have been paying a return on this land as wellas all other costs associated with its use. The fact that land is anondepreciable asset because its useful value is not ordinarily diminishedthrough use is, we find, irrelevant to the question of who is entitled to theproceeds on the sales of this land. [p. 26]
2006
SC
C 4
(C
anLI
I)
![Page 561: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/561.jpg)
(- 80 -
142 In SoCalGas, as well, the Commission declined to make a distinction
between the gain on sale of depreciable, as compared to non-depreciable, property,
stating: “We see little reason why land sales should be treated differently” (p. 107). The
decision continued:
In short, whether an asset is depreciated for ratemaking purposes or not,ratepayers commit to paying a return on its book value for as long as it isused and useful. Depreciation simply recognizes the fact that certain assetsare consumed over a period of utility service while others are not. The basicrelationship between the utility and its ratepayers is the same for depreciableand non-depreciable assets. [Emphasis added; p. 107.]
143 In Re California Water Service Co., 66 C.P.U.C. 2d 100 (1996), the regulator
commented that:
Our decisions generally find no reason to treat gain on the sale ofnondepreciable property, such as bare land, different[ly] than gains on thesale of depreciable rate base assets and land in PHFU [plant held for futureuse]. [p. 105]
144 Again, my point is not that the regulator must reject any distinction between
depreciable and non-depreciable property. Simply, my point is that the distinction does
not have the controlling weight as contended by ATCO. In Alberta, it is up to the Board
to determine what allocations are necessary in the public interest as conditions of the
approval of sale. ATCO’s attempt to limit the Board’s discretion by reference to various
doctrine is not consistent with the broad statutory language used by the Alberta
legislature and should be rejected.
4. Lack of Reciprocity
2006
SC
C 4
(C
anLI
I)
![Page 562: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/562.jpg)
(- 81 -
145 ATCO argues that the customers should not profit from a rising market
because if the land loses value it is ATCO, and not the ratepayers, that will absorb the
loss. However, the material put before the Court suggests that the Board takes into
account both gains and losses. In the following decisions the Board stated, repeated, and
repeated again its “general rule” that
the Board considers that any profit or loss (being the difference between thenet book value of the assets and the sale price of those assets) resulting fromthe disposal of utility assets should accrue to the customers of the utility andnot to the owner of the utility. [Emphasis added.]
(See Re TransAlta Utilities Corp., Alta. P.U.B., Decision No. E84116, October 12, 1984,
at p. 17; Re TransAlta Utilities Corp., Alta. P.U.B., Decision No. E84115, October 12,
1984, at p. 12; Re Canadian Western Natural Gas Co., Alta. P.U.B., Decision No.
E84113, October 12, 1984, at p. 23.)
146 In Re Alberta Government Telephones, Alta. P.U.B., Decision No. E84081,
June 29, 1984, the Board reviewed a number of regulatory approaches (including Re
Boston Gas Co., previously mentioned) with respect to gains on sale and concluded with
respect to its own practice, at p. 12:
The Board is aware that it has not applied any consistent formula or rulewhich would automatically determine the accounting procedure to befollowed in the treatment of gains or losses on the disposition of utilityassets. The reason for this is that the Board’s determination of what is fairand reasonable rests on the merits or facts of each case.
147 ATCO’s contention that it alone is burdened with the risk on land that
declines in value overlooks the fact that in a falling market the utility continues to be
2006
SC
C 4
(C
anLI
I)
![Page 563: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/563.jpg)
(- 82 -
entitled to a rate of return on its original investment, even if the market value at the time
is substantially less than its original investment. As pointed out in SoCalGas:
If the land actually does depreciate in value below its original cost, then oneview could be that the steady rate of return [the ratepayers] have paid for theland over time has actually overcompensated investors. Thus, there issymmetry of risk and reward associated with rate base land just as there iswith regard to depreciable rate base property. [p. 107]
II. Conclusion
148 In summary, s. 15(3) of the AEUBA authorized the Board in dealing with
ATCO’s application to approve the sale of the subject land and buildings to “impose any
additional conditions that the Board considers necessary in the public interest”. In the
exercise of that authority, and having regard to the Board’s “general supervision over all
gas utilities, and the owners of them” (GUA, s. 22(1)), the Board made an allocation of
the net gain for the public policy reasons which it articulated in its decision. Perhaps not
every regulator and not every jurisdiction would exercise the power in the same way, but
the allocation of the gain on an asset ATCO sought to withdraw from the rate base was
a decision the Board was mandated to make. It is not for the Court to substitute its own
view of what is “necessary in the public interest”.
III. Disposition
149 I would allow the appeal, set aside the decision of the Alberta Court of
Appeal, and restore the decision of the Board, with costs to the City of Calgary both in
this Court and in the court below. ATCO’s cross-appeal should be dismissed with costs.
2006
SC
C 4
(C
anLI
I)
![Page 564: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/564.jpg)
(- 83 -
APPENDIX
Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17
Jurisdiction
13 All matters that may be dealt with by the ERCB or the PUB under anyenactment or as otherwise provided by law shall be dealt with by the Boardand are within the exclusive jurisdiction of the Board.
Powers of the Board
15(1) For the purposes of carrying out its functions, the Board has all thepowers, rights and privileges of the ERCB and the PUB that are granted orprovided for by any enactment or by law.
(2) In any case where the ERCB, the PUB or the Board may act in responseto an application, complaint, direction, referral or request, the Board may acton its own initiative or motion.
(3) Without restricting subsection (1), the Board may do all or any of thefollowing:
(a) make any order that the ERCB or the PUB may make under anyenactment;
(b) with the approval of the Lieutenant Governor in Council, makeany order that the ERCB may, with the approval of the LieutenantGovernor in Council, make under any enactment;
(c) with the approval of the Lieutenant Governor in Council, makeany order that the PUB may, with the approval of the LieutenantGovernor in Council, make under any enactment;
(d) with respect to an order made by the Board, the ERCB or thePUB in respect of matters referred to in clauses (a) to (c), makeany further order and impose any additional conditions that theBoard considers necessary in the public interest;
(e) make an order granting the whole or part only of the reliefapplied for;
(f) where it appears to the Board to be just and proper, grant partial,further or other relief in addition to, or in substitution for, thatapplied for as fully and in all respects as if the application ormatter had been for that partial, further or other relief.
Appeals
2006
SC
C 4
(C
anLI
I)
![Page 565: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/565.jpg)
(- 84 -
26(1) Subject to subsection (2), an appeal lies from the Board to the Courtof Appeal on a question of jurisdiction or on a question of law.
(2) Leave to appeal may be obtained from a judge of the Court of Appealonly on an application made
(a) within 30 days from the day that the order, decision or directionsought to be appealed from was made, or
(b) within a further period of time as granted by the judge where thejudge is of the opinion that the circumstances warrant thegranting of that further period of time.
. . .
Exclusion of prerogative writs
27 Subject to section 26, every action, order, ruling or decision of theBoard or the person exercising the powers or performing the duties of theBoard is final and shall not be questioned, reviewed or restrained by anyproceeding in the nature of an application for judicial review or otherwisein any court.
Gas Utilities Act, R.S.A. 2000, c. G-5
Supervision
22(1) The Board shall exercise a general supervision over all gas utilities,and the owners of them, and may make any orders regarding equipment,appliances, extensions of works or systems, reporting and other matters, thatare necessary for the convenience of the public or for the proper carrying outof any contract, charter or franchise involving the use of public property orrights.
(2) The Board shall conduct all inquiries necessary for the obtaining ofcomplete information as to the manner in which owners of gas utilitiescomply with the law, or as to any other matter or thing within thejurisdiction of the Board under this Act.
Investigation of gas utility
24(1) The Board, on its own initiative or on the application of a personhaving an interest, may investigate any matter concerning a gas utility.
. . .
Designated gas utilities
2006
SC
C 4
(C
anLI
I)
![Page 566: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/566.jpg)
(- 85 -
26(1) The Lieutenant Governor in Council may by regulation designatethose owners of gas utilities to which this section and section 27 apply.
(2) No owner of a gas utility designated under subsection (1) shall
(a) issue any
(i) of its shares or stock, or
(ii) bonds or other evidences of indebtedness, payable in morethan one year from the date of them,
unless it has first satisfied the Board that the proposed issue is tobe made in accordance with law and has obtained the approval ofthe Board for the purposes of the issue and an order of the Boardauthorizing the issue,
(b) capitalize
(i) its right to exist as a corporation,
(ii) a right, franchise or privilege in excess of the amountactually paid to the Government or a municipality as theconsideration for it, exclusive of any tax or annual charge, or
(iii) a contract for consolidation, amalgamation or merger,
(c) without the approval of the Board, capitalize any lease, or
(d) without the approval of the Board,
(i) sell, lease, mortgage or otherwise dispose of or encumber itsproperty, franchises, privileges or rights, or any part of it orthem, or
(ii) merge or consolidate its property, franchises, privileges orrights, or any part of it or them,
and a sale, lease, mortgage, disposition, encumbrance, merger orconsolidation made in contravention of this clause is void, butnothing in this clause shall be construed to prevent in any way thesale, lease, mortgage, disposition, encumbrance, merger orconsolidation of any of the property of an owner of a gas utilitydesignated under subsection (1) in the ordinary course of theowner’s business.
. . .
Prohibited share transactions
27(1) Unless authorized to do so by an order of the Board, the owner of agas utility designated under section 26(1) shall not sell or make or permit to
2006
SC
C 4
(C
anLI
I)
![Page 567: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/567.jpg)
(- 86 -
be made on its books any transfer of any share or shares of its capital stockto a corporation, however incorporated, if the sale or transfer, by itself or inconnection with previous sales or transfers, would result in the vesting inthat corporation of more than 50% of the outstanding capital stock of theowner of the gas utility.
. . .
Powers of Board
36 The Board, on its own initiative or on the application of a person havingan interest, may by order in writing, which is to be made after giving noticeto and hearing the parties interested,
(a) fix just and reasonable individual rates, joint rates, tolls orcharges or schedules of them, as well as commutation and otherspecial rates, which shall be imposed, observed and followedafterwards by the owner of the gas utility,
(b) fix proper and adequate rates and methods of depreciation,amortization or depletion in respect of the property of any ownerof a gas utility, who shall make the owner’s depreciation,amortization or depletion accounts conform to the rates andmethods fixed by the Board,
(c) fix just and reasonable standards, classifications, regulations,practices, measurements or service, which shall be furnished,imposed, observed and followed thereafter by the owner of thegas utility,
(d) require an owner of a gas utility to establish, construct, maintainand operate, but in compliance with this and any other Actrelating to it, any reasonable extension of the owner’s existingfacilities when in the judgment of the Board the extension isreasonable and practical and will furnish sufficient business tojustify its construction and maintenance, and when the financialposition of the owner of the gas utility reasonably warrants theoriginal expenditure required in making and operating theextension, and
(e) require an owner of a gas utility to supply and deliver gas to thepersons, for the purposes, at the rates, prices and charges and onthe terms and conditions that the Board directs, fixes or imposes.
Rate base
37(1) In fixing just and reasonable rates, tolls or charges, or schedules ofthem, to be imposed, observed and followed afterwards by an owner of a gasutility, the Board shall determine a rate base for the property of the ownerof the gas utility used or required to be used to provide service to the publicwithin Alberta and on determining a rate base it shall fix a fair return on therate base.
2006
SC
C 4
(C
anLI
I)
![Page 568: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/568.jpg)
(- 87 -
(2) In determining a rate base under this section, the Board shall give dueconsideration
(a) to the cost of the property when first devoted to public use and toprudent acquisition cost to the owner of the gas utility, lessdepreciation, amortization or depletion in respect of each, and
(b) to necessary working capital.
(3) In fixing the fair return that an owner of a gas utility is entitled to earnon the rate base, the Board shall give due consideration to all facts that in itsopinion are relevant.
Excess revenues or losses
40 In fixing just and reasonable rates, tolls or charges, or schedules ofthem, to be imposed, observed and followed afterwards by an owner of a gasutility,
(a) the Board may consider all revenues and costs of the owner thatare in the Board’s opinion applicable to a period consisting of
(i) the whole of the fiscal year of the owner in which aproceeding is initiated for the fixing of rates, tolls or charges,or schedules of them,
(ii) a subsequent fiscal year of the owner, or
(iii) 2 or more of the fiscal years of the owner referred to insubclauses (i) and (ii) if they are consecutive,
and need not consider the allocation of those revenues and coststo any part of that period,
(b) the Board may give effect to that part of any excess revenuereceived or any revenue deficiency incurred by the owner that isin the Board’s opinion applicable to the whole of the fiscal yearof the owner in which a proceeding is initiated for the fixing ofrates, tolls or charges, or schedules of them, that the Boarddetermines is just and reasonable,
(c) the Board may give effect to that part of any excess revenuereceived or any revenue deficiency incurred by the owner afterthe date on which a proceeding is initiated for the fixing of rates,tolls or charges, or schedules of them, that the Board determineshas been due to undue delay in the hearing and determining of thematter, and
(d) the Board shall by order approve
(i) the method by which, and
2006
SC
C 4
(C
anLI
I)
![Page 569: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/569.jpg)
(- 88 -
(ii) the period, including any subsequent fiscal period, duringwhich,
any excess revenue received or any revenue deficiency incurred, asdetermined pursuant to clause (b) or (c), is to be used or dealt with.
General powers of Board
59 For the purposes of this Act, the Board has the same powers in respectof the plant, premises, equipment, service and organization for theproduction, distribution and sale of gas in Alberta, and in respect of thebusiness of an owner of a gas utility and in respect of an owner of a gasutility, that are by the Public Utilities Board Act conferred on the Board inthe case of a public utility under that Act.
Public Utilities Board Act, R.S.A. 2000, c. P-45
Jurisdiction and powers
36(1) The Board has all the necessary jurisdiction and power
(a) to deal with public utilities and the owners of them as providedin this Act;
(b) to deal with public utilities and related matters as they concernsuburban areas adjacent to a city, as provided in this Act.
(2) In addition to the jurisdiction and powers mentioned in subsection (1),the Board has all necessary jurisdiction and powers to perform any dutiesthat are assigned to it by statute or pursuant to statutory authority.
(3) The Board has, and is deemed at all times to have had, jurisdiction to fixand settle, on application, the price and terms of purchase by a council of amunicipality pursuant to section 47 of the Municipal Government Act
(a) before the exercise by the council under that provision of its rightto purchase and without binding the council to purchase, or
(b) when an application is made under that provision for the Board’sconsent to the purchase, before hearing or determining theapplication for its consent.
General power
37 In matters within its jurisdiction the Board may order and require anyperson or local authority to do forthwith or within or at a specified time andin any manner prescribed by the Board, so far as it is not inconsistent withthis Act or any other Act conferring jurisdiction, any act, matter or thing that
2006
SC
C 4
(C
anLI
I)
![Page 570: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/570.jpg)
(- 89 -
the person or local authority is or may be required to do under this Act orunder any other general or special Act, and may forbid the doing orcontinuing of any act, matter or thing that is in contravention of any suchAct or of any regulation, rule, order or direction of the Board.
Investigation of utilities and rates
80 When it is made to appear to the Board, on the application of an ownerof a public utility or of a municipality or person having an interest, presentor contingent, in the matter in respect of which the application is made, thatthere is reason to believe that the tolls demanded by an owner of a publicutility exceed what is just and reasonable, having regard to the nature andquality of the service rendered or of the commodity supplied, the Board
(a) may proceed to hold any investigation that it thinks fit into allmatters relating to the nature and quality of the service or thecommodity in question, or to the performance of the service andthe tolls or charges demanded for it,
(b) may make any order respecting the improvement of the service orcommodity and as to the tolls or charges demanded, that seemsto it to be just and reasonable, and
(c) may disallow or change, as it thinks reasonable, any such tolls orcharges that, in its opinion, are excessive, unjust or unreasonableor unjustly discriminate between different persons or differentmunicipalities, but subject however to any provisions of anycontract existing between the owner of the public utility and amunicipality at the time the application is made that the Boardconsiders fair and reasonable.
Supervision by Board
85(1) The Board shall exercise a general supervision over all publicutilities, and the owners of them, and may make any orders regardingextension of works or systems, reporting and other matters, that arenecessary for the convenience of the public or for the proper carrying out ofany contract, charter or franchise involving the use of public property orrights.
. . .
Investigation of public utility
87(1) The Board may, on its own initiative, or on the application of aperson having an interest, investigate any matter concerning a public utility.
(2) When in the opinion of the Board it is necessary to investigate a publicutility or the affairs of its owner, the Board shall be given access to and mayuse any books, documents or records with respect to the public utility andin the possession of any owner of the public utility or municipality or underthe control of a board, commission or department of the Government.
2006
SC
C 4
(C
anLI
I)
![Page 571: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/571.jpg)
(- 90 -
(3) A person who directly or indirectly controls the business of an ownerof a public utility within Alberta and any company controlled by that personshall give the Board or its agent access to any of the books, documents andrecords that relate to the business of the owner or shall furnish anyinformation in respect of it required by the Board.
Fixing of rates
89 The Board, either on its own initiative or on the application of a personhaving an interest, may by order in writing, which is to be made after givingnotice to and hearing the parties interested,
(a) fix just and reasonable individual rates, joint rates, tolls orcharges, or schedules of them, as well as commutation, mileageor kilometre rate and other special rates, which shall be imposed,observed and followed subsequently by the owner of the publicutility;
(b) fix proper and adequate rates and methods of depreciation,amortization or depletion in respect of the property of any ownerof a public utility, who shall make the owner’s depreciation,amortization or depletion accounts conform to the rates andmethods fixed by the Board;
(c) fix just and reasonable standards, classifications, regulations,practices, measurements or service, which shall be furnished,imposed, observed and followed subsequently by the owner ofthe public utility;
(d) repealed;
(e) require an owner of a public utility to establish, construct,maintain and operate, but in compliance with other provisions ofthis or any other Act relating to it, any reasonable extension ofthe owner’s existing facilities when in the judgment of the Boardthe extension is reasonable and practical and will furnishsufficient business to justify its construction and maintenance,and when the financial position of the owner of the public utilityreasonably warrants the original expenditure required in makingand operating the extension.
Determining rate base
90(1) In fixing just and reasonable rates, tolls or charges, or schedules ofthem, to be imposed, observed and followed subsequently by an owner ofa public utility, the Board shall determine a rate base for the property of theowner of a public utility used or required to be used to provide service to thepublic within Alberta and on determining a rate base it shall fix a fair returnon the rate base.
(2) In determining a rate base under this section, the Board shall give dueconsideration
2006
SC
C 4
(C
anLI
I)
![Page 572: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/572.jpg)
(- 91 -
(a) to the cost of the property when first devoted to public use and toprudent acquisition cost to the owner of the public utility, lessdepreciation, amortization or depletion in respect of each, and
(b) to necessary working capital.
(3) In fixing the fair return that an owner of a public utility is entitled toearn on the rate base, the Board shall give due consideration to all thosefacts that, in the Board’s opinion, are relevant.
Revenue and costs considered
91(1) In fixing just and reasonable rates, tolls or charges, or schedules ofthem, to be imposed, observed and followed by an owner of a public utility,
(a) the Board may consider all revenues and costs of the owner thatare in the Board’s opinion applicable to a period consisting of
(i) the whole of the fiscal year of the owner in which aproceeding is initiated for the fixing of rates, tolls or charges,or schedules of them,
(ii) a subsequent fiscal year of the owner, or
(iii) 2 or more of the fiscal years of the owner referred to insubclauses (i) and (ii) if they are consecutive,
and need not consider the allocation of those revenues and coststo any part of such a period,
(b) the Board shall consider the effect of the Small Power Researchand Development Act on the revenues and costs of the owner withrespect to the generation, transmission and distribution of electricenergy,
(c) the Board may give effect to that part of any excess revenuereceived or any revenue deficiency incurred by the owner that isin the Board’s opinion applicable to the whole of the fiscal yearof the owner in which a proceeding is initiated for the fixing ofrates, tolls or charges, or schedules of them, as the Boarddetermines is just and reasonable,
(d) the Board may give effect to such part of any excess revenuereceived or any revenue deficiency incurred by the owner afterthe date on which a proceeding is initiated for the fixing of rates,tolls or charges, or schedules of them, as the Board determineshas been due to undue delay in the hearing and determining of thematter, and
(e) the Board shall by order approve the method by which, and theperiod (including any subsequent fiscal period) during which, anyexcess revenue received or any revenue deficiency incurred, as
2006
SC
C 4
(C
anLI
I)
![Page 573: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/573.jpg)
(- 92 -
determined pursuant to clause (c) or (d), is to be used or dealtwith.
Designated public utilities
101(1) The Lieutenant Governor in Council may by regulation designatethose owners of public utilities to which this section and section 102 apply.
(2) No owner of a public utility designated under subsection (1) shall
(a) issue any
(i) of its shares or stock, or
(ii) bonds or other evidences of indebtedness, payable in morethan one year from the date of them,
unless it has first satisfied the Board that the proposed issue is tobe made in accordance with law and has obtained the approval ofthe Board for the purposes of the issue and an order of the Boardauthorizing the issue,
(b) capitalize
(i) its right to exist as a corporation,
(ii) a right, franchise or privilege in excess of the amountactually paid to the Government or a municipality as theconsideration for it, exclusive of any tax or annual charge, or
(iii) a contract for consolidation, amalgamation or merger,
(c) without the approval of the Board, capitalize any lease, or
(d) without the approval of the Board,
(i) sell, lease, mortgage or otherwise dispose of or encumber itsproperty, franchises, privileges or rights, or any part of them,or
(ii) merge or consolidate its property, franchises, privileges orrights, or any part of them,
and a sale, lease, mortgage, disposition, encumbrance, merger orconsolidation made in contravention of this clause is void, butnothing in this clause shall be construed to prevent in any way thesale, lease, mortgage, disposition, encumbrance, merger orconsolidation of any of the property of an owner of a publicutility designated under subsection (1) in the ordinary course ofthe owner’s business.
. . .
2006
SC
C 4
(C
anLI
I)
![Page 574: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/574.jpg)
(- 93 -
Prohibited share transaction
102(1) Unless authorized to do so by an order of the Board, the owner ofa public utility designated under section 101(1) shall not sell or make orpermit to be made on its books a transfer of any share of its capital stock toa corporation, however incorporated, if the sale or transfer, in itself or inconnection with previous sales or transfers, would result in the vesting inthat corporation of more than 50% of the outstanding capital stock of theowner of the public utility.
. . .
Interpretation Act, R.S.A. 2000, c. I-8
Enactments remedial
10 An enactment shall be construed as being remedial, and shall be giventhe fair, large and liberal construction and interpretation that best ensures theattainment of its objects.
Appeal dismissed with costs and cross-appeal allowed with costs,
MCLACHLIN C.J. and BINNIE and FISH JJ. dissenting.
Solicitors for the appellant/respondent on cross-appeal: McLennan Ross,
Calgary.
Solicitors for the respondent/appellant on cross-appeal: Bennett Jones,
Calgary.
Solicitor for the intervener the Alberta Energy and Utilities
Board: J. Richard McKee, Calgary.
2006
SC
C 4
(C
anLI
I)
![Page 575: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/575.jpg)
(- 94 -
Solicitor for the intervener the Ontario Energy Board: Ontario Energy
Board, Toronto.
Solicitors for the intervener Enbridge Gas Distribution Inc.: Fraser Milner
Casgrain, Toronto.
Solicitors for the intervener Union Gas Limited: Torys, Toronto. 2006
SC
C 4
(C
anLI
I)
![Page 576: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/576.jpg)
Page 1
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
British Columbia Hydro & Power Authority v. British Columbia (Utilities Commission)
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY v. BRITISH COLUMBIA UTILITIES COMMIS-SION, BRITISH COLUMBIA ENERGY COALITION, CONSUMER'S ASSOCIATION OF CANADA (B.C. BRANCH) ET AL., COUNCIL OF FOREST INDUSTRIES, WEST KOOTENAY POWER LTD., B.C. GAS
UTILITY LTD., ISCA MANAGEMENT LTD. and RICK BERRY
British Columbia Court of Appeal
Goldie, Prowse and Newbury JJ.A.
Heard: February 15, 1996Judgment: February 23, 1996
Docket: Doc. Vancouver CA019726
© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved.
Counsel: Chris Sanderson, J. Christian, and A.M. Dobson-Mack, for appellant.
Mark M. Moseley, for respondent British Columbia Utilities Commission.
Carol Reardon, for respondent/intervenor British Columbia Energy Coalition.
Michael P. Doherty, for respondent/intervenor Consumer's Association of Canada (B.C. Branch) et al.
D.W. Bursey, for respondent/intervenor Council of Forest Industries et al.
Subject: Public; Civil Practice and Procedure
Public Utilities --- Regulatory boards — Practice and procedure — Statutory appeals — Grounds for appeal — Lack of jurisdiction.
Practice --- Practice on appeal — Staying of proceedings pending appeal.
Public utilities — Regulatory boards — Practice and procedure — Judicial review — Jurisdiction of board — Utili-ties commission purporting to order that appellant utility comply with resource planning guidelines issued by com-mission — Court finding that directions in order being beyond statutory powers of commission and accordingly un-enforceable.
![Page 577: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/577.jpg)
Page 2
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
The appellant was a publicly owned utility generating, transmitting and distributing electrical energy. Its rates were subject to approval by the respondent commission under the provisions of the Utilities Commission Act. The com-mission issued a document entitled "Integrated Resource Planning Guidelines." The document was intended to pro-vide guidance on the commission's expectations of the planning processes developed by utilities. The appellant ap-plied for a rate increase. In its order denying the application, the commission ordered that the appellant comply with several directions relating to the integrated resource planning guidelines. The appellant appealed from that part of the order, objecting to the manner in which the commission purported to give the guidelines the force of a commis-sion order.
Held:
Appeal allowed.
No section of the Act expressly enabled the commission to impose by order its chosen form of controlling planning at the stage selected by it. Taken as a whole, the Act, viewed in the purposive sense required, did not reflect any intention on the part of the legislature to confer upon the commission a jurisdiction to determine, punishable on de-fault by sanctions, the manner in which the directors of a public utility managed its affairs. Where a regulator issues a statement or guideline that is non-binding and intended to inform and guide those subject to regulation, the state-ment is within the authority of the regulator. However, where the statement or guideline imposes mandatory re-quirements enforceable by sanction, the statement requires statutory authority. A regulator cannot issue de facto laws disguised as guidelines. The issue of non-mandatory guidelines was not a question before the court. The com-mission explicitly purported to enforce the application of its directions with the threat of sanctions. Thus, the appel-lant was entitled to a declaration that the directions in the order relating to the integrated resource planning guide-lines were beyond the statutory powers of the commission and were accordingly unenforceable.
Cases considered:
Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 18 O.S.C.B. 43, 6 C.C.L.S. 241, 21 O.R. (3d) 104, 28 Admin. L.R. (2d) 1, 121 D.L.R. (4th) 79, 77 O.A.C. 155 (C.A.) — applied
British Columbia Electric Railway v. British Columbia Public Utilities Commission, [1960] S.C.R. 837, 33 W.W.R. 97, 82 C.R.T.C. 32, 25 D.L.R. (2d) 689 — considered
Memorial Gardens Assn. (Canada) Ltd. v. Colwood Cemetery Co., [1958] S.C.R. 353, 13 D.L.R. (2d) 97, 76 C.R.T.C. 319 — considered
Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 4 C.C.L.S. 117, [1994] 7 W.W.R. 1, 92 B.C.L.R. (2d) 145, 14 B.L.R. (2d) 217, 22 Admin. L.R. (2d) 1, 114 D.L.R. (4th) 385, (sub nom. Pezim v. British Columbia (Securities Commission)) 168 N.R. 321, 46 B.C.A.C. 1, 75 W.A.C. 1 — considered
Syndicat national des employés de la commission scolaire régionale de l'Outaouais v. U.E.S., Local 298, (subnom. U.E.S., local 298 v. Bibeault) [1988] 2 S.C.R. 1048, 35 Admin. L.R. 153, 95 N.R. 161, 89 C.L.L.C. 14,045, 24 Q.A.C. 244 — applied
Statutes considered:
Hydro and Power Authority Act, R.S.B.C. 1979, c. 188
![Page 578: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/578.jpg)
Page 3
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
s. 5considered
Utilities Commission Act, S.B.C. 1980, c. 60
Pt. 2referred to
Pt. 3referred to
Pt. 9considered
s. 3.1 [en. 1989, c. 45, s. 13]considered
s. 28considered
s. 29considered
s. 44considered
s. 49considered
s. 51considered
s. 57considered
s. 59considered
s. 62(1)referred to
ss. 64-66considered
s. 66referred to
s. 112considered
s. 121referred to
s. 141(4)considered
Appeal from order of respondent British Columbia Utilities Commission.
The judgment of the court was delivered by Goldie J.A.:
1 This is an appeal, by leave, from Order G-89-94 of the British Columbia Utilities Commission (the "Commis-sion") with reasons for the decision attached. I refer to these reasons as the "Decision" and to Order G-89-94 as the "Order".
2 After a public hearing the Commission released the Decision on 24 November 1994. Notice of an application
![Page 579: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/579.jpg)
Page 4
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
for leave to appeal to this Court was filed by B.C. Hydro on 22 December 1994. Leave was granted 15 December 1995, the day the application was heard. The delay occurred when the Commission acceded to B.C. Hydro's applica-tion that it reconsider the Order and Decision. The reasons denying reconsideration were released on 17 October 1995. These proceedings accounted for much of the delay between the filing of the notice of application for leave to appeal and the granting of leave.
3 The issue, as stated by the appellant British Columbia Hydro and Power Authority ("B.C. Hydro"), is whether the Commission exceeded its jurisdiction in respect of certain directions in the Decision given the force of a Com-mission order. While it is common ground the standard of review in respect of jurisdiction is that the Commission must be correct in its interpretation of its constituent statute, the respondents contend the Commission acted within its jurisdiction and the appeal should be dismissed as no palpable and overriding error has been demonstrated that would permit this Court's intervention.
Background — General
4 B.C. Hydro is a publicly owned utility generating, transmitting and distributing electrical energy. With few exceptions its service area is province wide. Its rates are subject to approval by the Commission under the provisions of the Utilities Commission Act, S.B.C. 1980, c. 60, as amended (the "Utilities Act"). Under s. 3.1 of the Utilities Actthe Lieutenant Governor in Council may issue a direction to the Commission specifying the factors, criteria and guidelines the Commission is to observe in respect of B.C. Hydro. Such a direction, Special Direction No. 8, was in force at the time material to this appeal.
5 By virtue of the Hydro and Power Authority Act, R.S.B.C. 1979, c. 188, as amended (the "Authority Act"),B.C. Hydro is for all its purposes an agent of the Queen in Right of the Province; is deemed to have been granted an energy operation certificate for the purposes of the Utilities Act in respect of its works existing on 11 September 1980; and is not bound by any statute or statutory provision of the Province except what is made applicable to it by Order in Council. The Minister of Finance is its fiscal agent. The Utilities Act is among those ordered to be applica-ble to B.C. Hydro except sections dealing with one aspect of reserve funds; one enforcement provision and those requiring Commission approval of security issues and property disposition.
6 Section 5 of the Authority Act provides that the directors of B.C. Hydro, appointed by the Lieutenant Gover-nor in Council, shall manage its affairs. The powers of B.C. Hydro include the generation, manufacture, distribution and supply of power and the development of power sites and power plants. The exercise of these powers is subject to the approval of the Lieutenant Governor in Council. A further distinction between B.C. Hydro and investor-owned utilities is that B.C. Hydro's sole "shareholder" and not its directors determines when and in what amounts "dividends" will be paid.
7 Under s-s. 4 of s. 141 of the Utilities Act, which came into force 11 September 1980, the rates of B.C. Hydro then in effect became its lawful, enforceable and collectible rates.
8 Prior to 30 June 1995 Part 2 of the Utilities Act provided an approval process of generating and transmission facilities by the Lieutenant Governor in Council which could, at the latter's discretion, bypass the Commission. In this event the Commission might be called upon to approve rates reflecting the capital costs of large scale projects without the opportunity to pass upon the adequacy of the information justifying the construction of such projects as contemplated by the requirement under s. 51(1) of the Utilities Act requiring a certificate of public convenience and necessity prior to embarking upon construction. This provision is of some importance and I set it out here:
51. (1) Except as otherwise provided, no person shall, after this section comes into force, begin the construction or operation of a public utility plant or system, or an extension of either, without first obtaining from the com-mission a certificate that public convenience and necessity require or will require the construction or operation.
![Page 580: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/580.jpg)
Page 5
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
9 This prospect has been removed by amendments, primarily to Part 2 of the Utilities Act, and with it any justi-fication for concern over multi million dollar additions to the property devoted to public service without prior regu-latory scrutiny.
Background — "Integrated Resource Plan Guidelines"
10 In February, 1993 the Commission issued a 12-page document, to which I will refer as the "Guidelines", entitled "Integrated Resource Planning ("IRP") Guidelines". The following is the Definition section of the Guide-lines:
II Definition
IRP is a utility planning process which requires consideration of all known resources for meeting the demand for a utility's product, including those which focus on traditional supply sources and those which focus on con-servation and the management of demand[FN1]. The process results in the selection of that mix of resources which yields the preferred[FN2] outcome of expected impacts and risks for society over the long run. The IRP process plays a role in defining and assessing costs, as these can be expected to include not just costs and bene-fits as they appear in the market but also other monetizable and non-monetizable social and environmental ef-fects. The IRP process is associated with efforts to augment traditional regulatory review of completed utility plans with cooperative mechanisms of consensus seeking in the preparation and evaluation of utility plans. The IRP process also provides a framework that helps to focus public hearings on utility rates and energy project applications.
11 In the Purpose section the Commission stated the Guidelines were:
... intended to provide general guidance regarding BCUC expectations of the process and methods utilities fol-low in developing an IRP. It is expected that the general rather than detailed nature of the proposed guidelines will allow utilities to formulate plans which reflect their specific circumstances.
12 The Commission's identification of the objectives of this process was stated in these words:
1. Identification of the objectives of the plan
Objectives include but are not limited to: adequate and reliable service; economic efficiency; preservation of the financial integrity of the utility; equal consideration of DSM and supply resources; minimization of risks; con-sideration of environmental impacts; consideration of other social principles of ratemaking3, coherency with government regulations and stated policies.
Footnote 3 provides in part:
... The general implication is that because of social and environmental objectives, the rates charged by utilities may be allowed to diverge from those that would result from a rate determination based exclusively on financial least cost. The social principles to be addressed may be identified by the utility intervenors or government.
13 In Part III of the Guidelines defining the relationship between regulated utilities and the Commission under the Integrated Resource Plan Process the following sentences occur:
IRP does not change the fundamental regulatory relationship between the utilities and the BCUC. Thus IRP
![Page 581: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/581.jpg)
Page 6
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
guidelines issued by the BCUC do not mandate a specific outcome to the planning process nor do they mandate specific investment decisions. ... Under IRP, utility management continues to have full responsibility for mak-ing decisions and for accepting the consequences of those decisions. ... Consistency with IRP guidelines and the filed IRP plan will be an additional factor that the BCUC will consider in judging the prudency of investments and rate applications, although inconsistency may be warranted by changed circumstances or new evidence.
14 We are not called upon to determine whether the Guidelines, as defined above, are an appropriate exercise of the Commission's regulatory powers under the Utilities Act nor is there an appeal from any part of the Order dispos-ing of B.C. Hydro's application to vary its rates.
15 What is objected to is the manner in which the Commission has purported to give the Guidelines the force of a Commission order. It is convenient at this point to set out the substantive part of Order G-89-94:
NOW THEREFORE the Commission, for reasons stated in the Decision, orders as follows;
1. The applied for 2.8 percent increase in rates is denied and the interim increase authorized by Order No. G-18-94 effective April 1, 1994 is to be refunded, with interest calculated at the average prime rate of the principal bank with which B.C. Hydro conducts its business. B.C. Hydro is to provide the Commission with a detailed reconciliation schedule verifying the refund.
2. Rate design changes required by the Decision are to be implemented.
3. An Integrated Resource Plan and Action Plan are to be filed for approval by June 30, 1995.
4. The Commission will accept, subject to timely filing by B.C. Hydro, amended Electric Tariff Rate Schedules which conform to the terms of the Commission's Decision. B.C. Hydro will provide all custom-ers, by way of an information notice and media publication, with the Executive Summary of the Commis-sion's Decision.
4. (sic)B.C. Hydro will comply with all other directions contained in the Decision accompanying this Or-der.
(emphasis added)
16 I shall refer to the directions identified in the last paragraph as the "Directions". And it is paragraph 4 (sic) of the Order that is in issue here. Counsel for B.C. Hydro says there are 15 Directions related to the Guidelines covered by this paragraph.
17 The principal relief sought, as stated in B.C. Hydro's factum, includes a declaration "... that the IRP related aspects of Order G-89-94 and of the November Decision are void and of no effect".
18 In my view, the Direction best illustrating the issue raised by B.C. Hydro is that which requires it to establish what is called a collaborative committee (the "Committee") together with those Directions determining the part this Committee is to play in B.C. Hydro's performance of its statutory obligation under s. 44 of the Utilities Act to pro-vide service to the public.
Discussion
19 Mr. Moseley on behalf of the Commission asserted it was doing no more than obtaining information it was
![Page 582: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/582.jpg)
Page 7
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
entitled to, in a format it could by law determine, all at a time it was authorized to stipulate.
20 There can be little doubt, from the nature of B.C. Hydro's business, the magnitude of financial resources re-quired and the variety of other resources directly or indirectly committed or affected that virtually every person in the Province will have an interest in the management of that business.
21 The Direction in question follows a finding that B.C. Hydro had not complied with the Guidelines "... which require an explicit decision-making process which includes public involvement." B.C. Hydro had in place a public consultation program but this was considered inadequate as being "after the fact" rather than participatory in the planning process. The membership of the Committee was determined by the Commission, apparently on the princi-ple that the planning process is enhanced by the participation of interest groups. This appears from the following observation in the Decision:
Determination of the appropriate trade-offs between resources requires that the values the public attaches to these costs and benefits must be determined and factored into the decision in an explicit and transparent way.
The Commission has made it clear that such values are best determined through the direct participation of rep-resentative interest groups.
Exclusive reliance on the B.C. Hydro staff, managers and Board of Directors for resource selection is also unac-ceptable for another reason. A closed, in-house process has the appearance of, and real potential for, bias in de-cision making that favors the interests of the bureaucracy within the Utility.
The Committee as constituted following the Order and Decision consisted of two representatives of B.C. Hydro and 11 representing a variety of interests. Each of the 11 spoke for his or her group. Some were regional, others repre-sented classes of customers. One or two represented people who wished to do business with B.C. Hydro.
22 Seven Directions state in detail what B.C. Hydro is to provide the Committee. One includes the following:
Finally, the Commission directs B.C. Hydro to institute with the IRP consultative committee a multi-attribute trade-off analysis for the purposes of portfolio development and selection.
This process is defined in the Commission's glossary of terms:
Multi-Attribute Analysis
A method which allows for comparison of options in terms of all attributes which are of relevance to the deci-sion maker(s). In IRP, common attributes are financial cost, environmental impact, social impact and risk.
23 This requires B.C. Hydro to appraise future projects which it may never implement because of, for instance, financial constraints imposed by the Minister of Finance or by virtue of a special direction under s. 3.1 of the Utili-ties Act.
24 There is evidence supporting the following assertion in the appellant's factum:
The bulk of the IRP Directives can be characterized as requiring BCH to put BCH's resource planning initia-tives and analyses to the Consultative Committee and be guided by the views and information provided by the members of the Consultative Committee in undertaking its resource planning responsibilities.
![Page 583: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/583.jpg)
Page 8
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
25 It cannot be seriously questioned that the Commission requires compliance with its Guidelines: at p. 66 of the reasons the Commission concludes a direction denying recovery of a portion of B.C. Hydro's Resource Planning Unit expenditures with these words:
Should the Utility continue to fail to implement the Commission's directions respecting IRP, the Commission will consider the circumstances and may invoke its powers under Part 9 of the Act.
26 Part 9 of the Utilities Act, to which I will later refer, includes a list of offences under the Utilities Act.
27 B.C. Hydro filed with the Commission on 8 November 1996 what it called its integrated electricity plan which it asserted complied with the Directions in the Decision. The Commission has ordered a public hearing into the integrated electricity plan in February 1996.
28 I restate the question before us. It is whether there is statutory authority for the Commission's imposition of the Guidelines to the extent required by the relevant Directions in the Decision on what is essentially an internal process for which the directors of B.C. Hydro have the ultimate responsibility, both in respect of the process and for the selection of the product of the process.
29 Mr. Sanderson's first point on behalf of B.C. Hydro is that nowhere in the Utilities Act is reference made to planning. In answer, Mr. Mosely referred us to s. 51(3) which requires a public utility to file annually with the Commission a statement in a prescribed form "... of the extensions to its facilities that it plans to construct". This describes a result at the conclusion of the relevant planning process. In the context of s. 51(2) it refers to the con-struction of facilities for which separate certificates of public convenience and necessity may not be required.
30 In my view, s. 51(3) has little relevance to the case at bar. It appears B.C. Hydro routinely files the statement referred to. The amounts in question may be in the aggregate substantial but one would expect many of the expendi-tures for individual components would not be, as they, would relate to the routine reinforcement of transformation and distribution facilities required to meet load growth or to maintain the reliability and adequacy of service.
31 Section 28 of the Utilities Act is also relied upon by the respondents. In full, it provides:
General supervision of public utilities
28. (1) The commission has general supervision of all public utilities and may make orders about equipment, appliances, safety devices, extension of works or systems, filing of rate schedules, reporting and other matters it considers necessary or advisable for the safety, convenience or service of the public or for the proper carrying out of this Act or of a contract, charter or franchise involving use of public property or rights.
(2) Subject to this Act, the commission may make regulations requiring a public utility to conduct its operations in a way that does not unnecessarily interfere with, or cause unnecessary damage or inconvenience to, the pub-lic.
32 Two observations can be made of this section: the first is that the class of matters referred to in s-s. (1) re-lates to the existing service provided the public as distinct from future service. The second is that s-s. (2) also refers to present service, that is to say, the conduct of operations in relation to the public. Neither of these subsections re-fers to the utility's plans for the future.
33 Section 29 of the Utilities Act has some relevance to the contention that the IRP process comprises in one bundle the exercise of individual powers granted the Commission. It directs the Commission to make examinations
![Page 584: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/584.jpg)
Page 9
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
and conduct inquiries necessary to keep itself informed about, amongst other things, the conduct of public utility business. It does not authorize the Commission to direct how that business is conducted.
34 The Commission is supplied with B.C. Hydro's load forecasts as is apparent from its comments in the Deci-sion. These dictate the response a utility must make to meet its statutory obligation to provide service as well as to maintain compliance with the terms of existing certificates of public convenience and necessity. It is within this part of the process that the Commission has decided, in its words, to make the IRP the "... driving force behind the estab-lishment of a utility action plan approved by senior management."
35 It appears reasonable to assume the purpose of the Guidelines is to look beyond a simplistic view of utility planning as one limited to selecting the resources needed to meet anticipated demand and in doing so, to reject an equally simplistic view of regulation as ensuring that service is provided at the least cost to the consumer. It has been evident for some years now that environmental considerations are important in the formulation of the opinion represented by the phrase "public convenience and necessity". To the same effect, conservation and management of energy use is now recognized in what is known as demand side management. The wisdom of all this does not appear to be an issue.
36 The Commission's order directs when and how these factors are to be taken into account in the sequence of B.C. Hydro's planning processes.
37 The Commission in its factum asserts the IRP process is designed to accomplish two objectives:
1. It provides information to the Commission as to the resource selection choice being made by a utility; and
2. Following a review of the IRP plan for the Commission "... it provides guidance to utility management in the form of an advance indication as to the approach the Commission is likely to apply when it subsequently assesses the pru-dency of the expenditures made by the utility."
38 It will be noted the first objective refers to choices being made while the second refers to expenditures al-ready made.
39 This dichotomy between present planning and past expenditures is said by the Commission to require regula-tory control at the planning stage to avoid the dilemma of disallowing substantial incurred expenditures at the rate review stage. The examples given by the Commission in its reconsideration reasons were a nuclear plant and a large hydro electric dam.
40 Section 51 of the Utilities Act avoids this Hobson's choice. It does so by requiring a certificate of public con-venience and necessity before the utility begins construction. It is not suggested the Commission has been demon-strably ineffectual in discharging its responsibilities at the certification stage.
41 Other provisions in the Act relied upon by the Commission are as follows:
1. Section 49 which requires a utility to furnish information to the Commission and answer its questions. This does not require that the utility create information for the purpose of a consultative committee nor to respond to the re-quests of a consultative committee — both of which have been directed by the Commission.
2. Sections 64-66 which deal with the Commission's jurisdiction over rates. To the extent these are relevant I have dealt with them in my comment on s. 51 of the Utilities Act.
![Page 585: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/585.jpg)
Page 10
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
42 I am of the view no section of the Utilities Act expressly enables the Commission to impose by order its cho-sen form of controlling planning at the stage selected by it.
43 In this I rely upon the literal meaning of each of the sections in the Act which have appeared to me to have any relevant significance.
44 These are, however, to be construed in relation to the Utilities Act as a whole. I refer to what Mr. Justice Beetz said in Syndicat national des employés de la commission scolaire régionale de l'Outaouais v. U.E.S., Local 298, (sub nom. U.E.S., local 298 v. Bibeault) [1988] 2 S.C.R. 1048 at 1088, as the initial stage in a pragmatic or functional analysis:
At this stage, the Court examines not only the wording of the enactment conferring jurisdiction on the adminis-trative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of exper-tise of its members and the nature of the problem before the tribunal.
45 The premise of such an analysis is that it focuses on jurisdiction: did the legislature intend the question in issue to be answered by the courts or by the tribunal? It is a matter of statutory interpretation with the emphasis on purpose.
46 In this light the Utilities Act is a current example of the means adopted in North America, firstly in the United States, to achieve a balance in the public interest between monopoly, where monopoly is accepted as neces-sary, and protection to the consumer provided by competition. The grant of monopoly through certification of public convenience and necessity was accompanied by the correlative burden on the monopoly of supplying service at ap-proved rates to all within the area from which competition was excluded.
47 It is self-evident this process cannot be undertaken on a day to day basis by legislature or government. Hence, the creation of public utilities commissions. In the United States a constitutionally acceptable formula was evolved to protect the grantee of a certificate of public convenience and necessity from rates so low they constituted piece-meal confiscation of property without due compensation. The form this took was adopted in Canada. A brief historical sketch, relevant to this province, is found in the concurring judgment of Mr. Justice Locke in British Co-lumbia Electric Railway v. British Columbia Public Utilities Commission, [1960] S.C.R. 837 at 842-845. The Utili-ties Act contains many expressions linking it with its legislative antecedents.
48 The certification process is at the heart of the regulatory function delegated to the Commission by the legisla-ture. In Memorial Gardens Assn. (Canada) Ltd. v. Colwood Cemetery Co., [1958] S.C.R. 353, Mr. Justice Abbott, after referring to the American origin of the phrase, said at 357:
As this Court held in the Union Gas case, supra, the question whether public convenience and necessity re-quires a certain action is not one of fact. It is predominantly the formulation of an opinion. Facts must, of course, be established to justify a decision by the Commission but that decision is one which cannot be made without a substantial exercise of administrative discretion. In delegating this administrative discretion to the Commission the Legislature has delegated to that body the responsibility of deciding, in the public interest, the need and desirability of additional cemetery facilities, and in reaching that decision the degree of need and of desirability is left to the discretion of the Commission.
49 The other function the legislature has entrusted to the regulatory tribunal is the supervision of the utility's use of property dedicated to service as a result of the certification process. Unless so certified, or exempted from certifi-cation by the Commission, such property is not part of the appraised value of the utility company under s. 62(1) which is the basis for fixing a rate under s. 66. In respect of such property the supervisory powers of the Commis-sion, principally found in Part 3 of the Utilities Act, enable it to oversee the statutory obligation in s. 44 to furnish
![Page 586: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/586.jpg)
Page 11
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
service imposed upon every public utility, namely:
44. Every public utility shall maintain its property and equipment in a condition to enable it to furnish, and it shall furnish, a service to the public that the commission considers is in all respects adequate, safe, efficient, just and reasonable.
50 It is not without some significance that the Commission found in the Decision the following:
From the evidence, the Commission recognizes that B.C. Hydro is generally maintaining a safe, secure and highly reliable generation, transmission and distribution service. Given this high level of reliability, the Com-mission has focused on cost control as an issue at this time.
51 The Utilities Act runs to over 140 sections. The administration of the jurisdiction conferred upon the Com-mission is amply delineated by express terms. There is no need to imply terms for this purpose.
52 I have already described the reason for the existence of the tribunal. The expertise or skills of its members vary. Experience has demonstrated skills associated with accounting, economics, finance and engineering have been frequently utilized. Unlike labour relations tribunals where past experience in the field of labour relations is a virtual prerequisite, past experience in the regulatory field is not necessary. A similar observation may be made with respect to securities commissions. Both labour relations tribunals and securities commissions are expressly conferred with policy making powers. None such are conferred on the Commission.
53 In considering the nature of the problem before the tribunal I will first deal with the Utilities Act as a law of general application. I will then consider whether the provisions of the Utilities Act which relate only to B.C. Hydro affect my conclusions.
54 I earlier referred to the characterization of the issue. Counsel for the Commission contended it merely related to the enforcement of the information gathering power conferred on the Commission.
55 I am unable to agree with that characterization as in my opinion the IRP process is specific to the planning phase of the utility's response to its statutory obligations and its enforcement by order is an exercise of management as it relates neither to the certification process as such nor to the supervision of the utility's use of its property de-voted to the provision of service.
56 It is only under s. 112 of the Utilities Act that the Commission is authorized to assume the management of a public utility. Otherwise the management of a public utility remains the responsibility of those who by statute or the incorporating instruments are charged with that responsibility.
57 One of the primary responsibilities and functions of the directors of a corporation is the formulation of plans for its future. In the case of a public utility these plans must of necessity extend many years into the future and be constantly revised to meet changing conditions. In the case at bar the effect of the Commission's directions is to place a group, whose interests are disparate, in a superior position in the sequence of planning and to require the directors to justify a deviation from the product of the IRP process in the exercise of their responsibilities.
58 Taken as a whole the Utilities Act, viewed in the purposive sense required, does not reflect any intention on the part of the legislature to confer upon the Commission a jurisdiction so to determine, punishable on default by sanctions, the manner in which the directors of a public utility manage its affairs.
59 When the Utilities Act is examined in light of the provisions applicable to B.C. Hydro alone, this conclusion
![Page 587: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/587.jpg)
Page 12
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
is reinforced. I have mentioned s. 3.1. This authorizes the Lieutenant Governor in Council to issue a direction to the Commission specifying "factors, criteria and guidelines" to be used or not used by the Commission in regulating and fixing rates for B.C. Hydro. There is no comparable mandatory power conferred on the Commission to issue such directions to B.C. Hydro. From my examination of the Utilities Act this is the only reference to guidelines. A further important exclusion from the jurisdiction of the Commission is its approval of the issue of securities under s. 57. Moreover, under s. 59 B.C. Hydro may dispose of its property without obtaining the Commission's approval.
60 I have mentioned sanctions and the Commission's threat to resort to Part 9 of the Utilities Act. Part 9 lists as an offence on the part of individual officers directors and managers of utility in the failure to comply with a Com-mission order.
61 Tested in terms of general principles I am of the view the observations of the Ontario Court of Appeal in Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 21 O.R. (3d) 104 (C.A.), are relevant. In that case the Ontario Securities Commission ("OSC") issued a draft policy statement, subsequently adopted with minor modifications after the action in question had been commenced.
62 This policy statement purported to be a guide to those engaged in the marketing and selling of penny stocks as to business practices the OSC regarded as appropriate. As was set out in greater detail in Pezim v. British Colum-bia (Superintendent of Brokers), [1994] 2 S.C.R. 557 [92 B.C.L.R. (2d) 145], major securities commissions such as the OSC have a policy role in the regulation of capital markets in the public interest as well as an adjudicative func-tion in applying sanctions in specific cases. The following headnote from Ainsley is, I think, relevant to the point before us.
The validity of the policy statement turned on its proper characterization. If the statement was a non-binding statement or guideline intended to inform and guide those subject to regulation, the statement was valid and within the authority of the OSC; guidelines of this nature do not require specific statutory authority and such guidelines are not invalid merely because they regulate in the sense that they affect the conduct of those at whom they, are directed. If, however, the statement imposed mandatory requirements enforceable by sanction, then the statement required statutory authority; a regulator cannot issue de facto laws disguised as guidelines.
63 The issue of non-mandatory guidelines is not a question before us. Here, I repeat, the Commission has ex-plicitly purported to enforce the application of its directions with the threat of sanctions.
64 In my view, the appellant is entitled to a declaration that the Directions in the reasons for Decision for Order G-89-94 issued 24 November 1994 which ordered the application of the Integrated Resource Plan to British Colum-bia Hydro and Power Authority are beyond the statutory powers of the Commission and are accordingly unenforce-able.
65 I would make no order as to costs.
Pursuant to s. 121 of the Utilities Commission Act, the foregoing will be certified as the opinion of the Court to the Commission.
Appeal allowed.
FN1 Referred to as Demand-Side Management (DSM).
FN2 The term preferred is chosen to imply that society has used some process to elicit social preferences in selecting among energy resource options. Unfortunately, there is rarely agreement on the best process for eliciting social pref-erences. Candidate processes in a democracy include public ownership with direction from cabinet or a ministry,
![Page 588: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/588.jpg)
Page 13
1996 CarswellBC 352, 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, [1996] B.C.W.L.D. 847, 61 A.C.W.S. (3d) 390
© 2011 Thomson Reuters. No Claim to Orig. Govt. Works
regulation by a public tribunal, referendum, and various alternate dispute resolution methods (e.g. consensus seeking stakeholder collaboratives).
END OF DOCUMENT
![Page 589: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/589.jpg)
Negotiated Settlement Process
Policy, Procedures and Guidelines
January 2001
![Page 590: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/590.jpg)
British Columbia Utilities CommissionSixth Floor, 900 Howe Street, Box 250
Vancouver, British Columbia, Canada V6Z 2N3
Telephone (604) 660-4700; Facsimile (604) 660-1102B.C. Toll Free: 1-800-663-1385
Internet Email: [email protected] Site: http://www.bcuc.com
![Page 591: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/591.jpg)
Negotiated Settlement Process
TABLE OF CONTENTS
PAGE NO.
I POLICY STATEMENT 1
II BACKGROUND 1
III WHEN IS THE NEGOTIATED SETTLEMENTPROCEDURE APPROPRIATE? 2
IV PROCEDURES FOR THE NEGOTIATED SETTLEMENT PROCESS 2
1. Initiation of the Process 2
2. The Right to Participate 3
3. Steps in the Negotiated Settlement Process 4
4. Discussions Without Prejudice and Confidential 5
5. Authority to Act 6
6. The Right to Dissent 6
7. The Appointment of a Facilitator 6
8. The Role of the Facilitator 7
9. The Role of Commission Staff in the Negotiations 7
10. Commission Panel’s Evaluation of Settlements 8
11. The Effect of a Settlement Agreement 9
V GUIDELINES FOR THE NEGOTIATED SETTLEMENT PROCESS 10
VI CONFIDENTIALITY AGREEMENT OF PARTICIPANTSTO THE NEGOTIATED SETTLEMENT PROCESS 11
![Page 592: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/592.jpg)
British Columbia Utilities Commission
1
Negotiated Settlement Process
NEGOTIATED SETTLEMENT PROCESS
Policy, Procedures and Guidelinesof the British Columbia Utilities Commission
I POLICY STATEMENT
The Commission’s policy is to use the negotiated settlement process judiciously to save time and
reduce the cost of utility regulation while achieving sound regulatory decisions. The Commission
is committed to public participation in its processes and to transparency in its decision making. It is
in the spirit of these values that this policy will be implemented.
II BACKGROUND
To improve the effectiveness and efficiency of energy regulation in British Columbia, the British
Columbia Utilities Commission (the “Commission”) is adopting processes that are alternative or
complementary to its traditional regulatory process. For example, the Commission is using
technical workshops, issues meetings, and discussion groups to encourage regulatory participants
to discuss issues in an open, flexible and informal manner. On a number of occasions, the
Commission has used a negotiated settlement process to seek agreements among regulatory
participants about matters before the Commission.
There are a number of issues associated with the use of such alternative dispute resolution
processes in a quasi-judicial, decision-making environment, particularly in the context of energy
utility regulation. To address these issues the Commission initially issued discussion papers and
received useful comments from interested parties, and this procedure was repeated in a subsequent
review of the process.
Negotiated settlements can offer significant benefits to the regulatory process; however, realizing
those benefits, while maintaining fundamental principles of natural justice and fairness, requires that
certain principles and process attributes be present, including the appropriate participation of
Commission staff. If participants are not satisfied with a negotiated settlement process they are
free, at any time, to choose not to participate and to use the traditional hearing process to resolve
their concerns. The flexible nature of the negotiated settlement process allows it to adapt to
problems as they arise.
![Page 593: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/593.jpg)
British Columbia Utilities Commission
2
Negotiated Settlement Process
A negotiated settlement process may not always be appropriate or successful. The first question to
be considered by potential participants is what, if any, of the issues are amenable to the negotiated
settlement process. Considerations to be taken into account are listed in section III.
The negotiated settlement process is a tool that complements the traditional regulatory process. The
Commission continues to administer its responsibilities under the Utilities Commission Act and
cannot delegate decision-making power to others; however, the negotiated settlement process is a
tool that provides considerable flexibility to the Commission and participants.
III WHEN IS THE NEGOTIATED SETTLEMENT PROCEDUREAPPROPRIATE?
To assist in determining when to use the negotiated settlement process, all or portions of an
application should be evaluated in light of certain considerations.
i) Will customer classes or other groups that are likely to be affected by the agreement
be participants in the negotiating sessions? It may be necessary to exercise
judgement as to the significance of any settlement agreement for parties that will not
be active participants.
ii) Will the application pose policy issues about which there is no established
Commission precedent? If so, all or portions of the application may not be suitably
addressed by negotiation.
iii) Has the set of issues posed by the application been subject to a public hearing
within a reasonable interval? This consideration derives from the need to maintain
an adequate public record and to avoid systematic lack of representation by any
affected customer class or group.
IV PROCEDURES FOR THE NEGOTIATED SETTLEMENT PROCESS
1. Initiation of the Process
The decision to initiate the negotiated settlement process that is outlined in section IV.3, will
be made by the Commission and confirmed by order, after consideration of the application,
the preference of the applicant, and likely interests of affected parties.
![Page 594: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/594.jpg)
British Columbia Utilities Commission
3
Negotiated Settlement Process
Participation in negotiations is voluntary. While unanimous support is preferred before
attempting a settlement process, there may be situations where general agreement is
sufficient.
2. The Right to Participate
The right to participate in settlements is recognized by the Commission. The Commission
does not exclude or prohibit participation unless the party in question has no reasonable
interest in the subject matter of the settlement discussions.
It may also be the case that, in some circumstances, too large a number of interested parties
could preclude an effective settlement process. When this occurs, either a settlement will
not be attempted, the application will be divided into sub-issues to reduce the number of
participants at any one discussion, or participants representing similar issues may be
encouraged to work together.
Interested parties cannot be forced to participate in a settlement process. A decision not to
participate will not abrogate the right of the party to comment, for the Commission’s
consideration, on a resulting settlement agreement.
Proper notice is important to ensuring that all parties have the opportunity to participate in
settlement discussions. Notice requirements will be the same as for a public hearing before
the Commission.
Sufficient information will be available to registered intervenors so that issues can be
assessed and the negotiated settlement process can begin. In most cases this will mean
filing of the application, information requests, and responses to those requests.
Negotiated Settlement Processes are considered “proceedings” for the purpose of cost
awards under section 118 of the Utilities Commission Act. Awards may be granted even if
a settlement cannot be reached, but will be granted according to the same conditions, where
appropriate, as for costs awarded on account of a full public hearing.
![Page 595: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/595.jpg)
British Columbia Utilities Commission
4
Negotiated Settlement Process
3. Steps in the Negotiated Settlement Process
Before settlement discussions begin, the Commission will establish various pre-settlement
processes, including workshops and issues meetings. The purpose of workshops is to
assist all parties to understand specific aspects, policies or concepts in an application
through informal presentations and discussions. Once the pre-settlement processes are
established, a division of the Commission (“panel”) will be designated.
The negotiated settlement process may include technical workshops and pre-hearing
conferences but will usually include the following stages:
i) At the outset of the negotiated settlement process, meetings of interested parties and
Commission staff will normally take place at which participants will be invited to
identify issues arising from the application to be addressed through negotiation.
ii) Commission staff will advise the Commission panel of the appropriateness of
referring all, or portions of, an application to negotiation, making reference to the
criteria listed in section III. The panel will determine whether all, or selected
portions, of the application will be negotiated. The panel will also identify those
issues of particular concern to it, and this information will be passed on to the
participants in written form.
iii) The negotiated settlement process timetable, and opportunities for information
requests and responses from the utility, will be specified by the Commission panel
prior to the start of negotiations.
iv) Intervenors who intend to participate in the negotiations will be required to confirm
that they will adhere to the terms and conditions of the process, as set out in sections
V and VI, as a precondition of their participation.
v) During the negotiation meetings, participants will present their positions on each
issue.
vi) The participants will seek a consensus resolution of each issue. Any proposed
settlement agreement will allow dissenting participants to pursue their position
directly with the Commission panel as set out in paragraph 6 below.
![Page 596: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/596.jpg)
British Columbia Utilities Commission
5
Negotiated Settlement Process
It is the responsibility of the negotiation participants to ensure that the proposed
settlement agreement contains sufficient evidence to support the proposal. In
particular, provisions of the proposed settlement agreement that relate to issues
identified by the Commission panel, or any other matters that may affect the public
or non-participant parties, must be supported by explicit rationales.
vii) The proposed settlement agreement will be circulated amongst the participants and
upon the written concurrence of the participants will then be distributed to all other
interested parties and to the Commission panel. Normally a member of staff who
has not been present in the settlement proceedings will review the proposed
settlement agreement prior to the Commission panel's deliberations. This function
is intended to provide support for the panel as to the impact of the proposed
settlement agreement on all parties, whether or not they were participants in the
negotiations.
viii) Any party who does not agree with the settlement will be expected to provide written
reasons to the Commission panel. All responses will be transmitted to the
Commission panel for its consideration.
4. Discussions Without Prejudice and Confidential
To foster open, frank, and innovative settlement discussions, bargaining positions presented
during the settlement discussions will be without prejudice and confidential. The without
prejudice and confidential nature of the discussions requires each participant to disclose
whether they are participating in their own right or on behalf of some client(s). This
disclosure will ordinarily appear in the Notice of Intervention, but if it does not, the
participant must disclose the identity of the party for whom the participant is acting.
Information that would have become available independently of the negotiated settlement
process remains public information. The parties must agree to the confidentiality agreement
set out in section VI below, or they will not be permitted to participate in the negotiated
settlement process. The confidentiality agreement will be made at the start of the first issues
meeting or, in any event, before the commencement of negotiations.
![Page 597: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/597.jpg)
British Columbia Utilities Commission
6
Negotiated Settlement Process
5. Authority to Act
The Commission panel will require representatives to be able to speak to the concerns of
their group or client during negotiations. Further, the Commission panel will require that
representatives who sign a proposed settlement agreement have been given the authority to
do so by their group or client.
6. The Right to Dissent
The right of parties to dissent from a proposed agreement is explicitly recognized by the
Commission. If a party dissents, it can submit a written argument to the Commission panel.
If the Commission panel is of the view that the dissent is reasonable and material, it may
request written rebuttal argument or, where the settlement review process is to occur at an
oral hearing, request argument at the oral hearing. If the dissent is determined to be
reasonable and material, the dissenting party retains the right to present evidence and to
cross-examine or to rebut the evidence of others if there is a written hearing.
7. The Appointment of a Facilitator
The Commission will normally provide a facilitator from staff. However, if any active
participant in a negotiated settlement process requests someone other than Commission
staff to facilitate or chair the negotiating sessions, that request, with supporting reasons,
should be submitted in writing to the Commission panel. The requester must also submit
the name and credentials of an alternate facilitator. The other active participants in the
negotiated settlement process will be given an opportunity to comment on the request.
The Commission panel will approve the selection or advise the participants why the
proposed facilitator is unacceptable.
![Page 598: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/598.jpg)
British Columbia Utilities Commission
7
Negotiated Settlement Process
8. The Role of the Facilitator
In conducting the settlement process the facilitator will:
• help to foster an environment of cooperation and trust among participants;
• ensure that all participants have an opportunity to express their views on each issue;
• facilitate the preparation of a proposed settlement agreement which contains all therequired components; and
• guide the preparation of a list of outstanding issues.
The facilitator in the negotiated settlement process has authority to bring about a resolution
of issues by any reasonable means, and in particular by:
• clarifying and summarizing a party's position;
• making explicit any differences in the positions taken by the respective parties;
• recognizing the possible concerns of unrepresented parties;
• encouraging a party to evaluate its own position in relation to other parties byintroducing objective standards; and
• identifying settlement options or approaches that have not yet been considered.
In summary, the function of the facilitator is twofold: a) to oversee the manner in which the
settlement process is carried out; and b) to ensure that the full range of issues is effectively
addressed. Parties to the negotiation are responsible for the substance of the proposed
settlement and the supporting rationales.
9. The Role of Commission Staff in the Negotiations
Staff participation in settlement discussions, and alternative dispute resolution generally, is
important to the effectiveness of the process. Staff provide certain skills, knowledge and
experience that may otherwise not be available to all participants.
![Page 599: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/599.jpg)
British Columbia Utilities Commission
8
Negotiated Settlement Process
The responsibilities of staff present in the negotiations include:
• supplying factual information that may otherwise not have been brought to theattention of the participants;
• describing possible implications of settlement proposals for unrepresented parties;
• advising the participants of any precedents recognized by the Commission; and
• ensuring that the participants are aware of concerns of the Commission panelinsofar as they are known.
In summary, the responsibility of staff is to ensure that the interests of all affected parties
are taken into account, while refraining from endorsing a particular position. Staff who
attend settlement discussions will not disclose to the Commission any positions or offers
presented during the settlement discussions without the consent of all participants.
10. Commission Panel’s Evaluation of Settlements
While the Commission strongly supports the development of the negotiated settlement
process in British Columbia, it has a statutory duty to regulate in the public interest.
Therefore, the Commission panel will not accept a proposed settlement unless it is
persuaded that the settlement agreement is in the public interest and consistent with the
requirements of the Utilities Commission Act.
The Commission panel may approve agreements as “packages” rather than line-by-line.
At the same time, the Commission panel will not accept individual terms that, in its
judgment, contravene the Commission’s obligations under the Utilities Commission Act.
If the Commission panel wishes to amend a portion of a settlement and that amendment
would have a material effect on one or more interests, the Commission will provide the
necessary time for staff to contact all the signatories to the settlement to determine if they
will agree to the changes. A final meeting of the participants to the negotiated settlement
process to address the changes may be scheduled.
If the Commission panel rejects the settlement agreement, then where possible, an entirely
new panel will be constituted to decide the application through a public hearing.
![Page 600: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/600.jpg)
British Columbia Utilities Commission
9
Negotiated Settlement Process
It is important that the Commission panel has sufficient information on the public record to
evaluate a settlement agreement. In most cases, the following minimum information will be
available: the terms of the agreement, the application and information responses, and a list of
the participants who agree to the terms of the settlement. The Commission panel may
require participants to submit additional information, either orally or in writing. Always, the
onus of ensuring that sufficient information is on the record will rest with the proponents of
the agreement.
The Commission panel may evaluate settlements through either an oral or a written public
hearing. The responses of participants and interested parties will be distributed to all
registered intervenors before a settlement hearing begins. The Commission panel may
approve the settlement agreement provided the Commission panel believes the settlement
satisfies the public interest.
11. The Effect of a Settlement Agreement
The benefits of the negotiated settlement process will only be realized if participants are
bound to the terms of the agreement. There are, however, circumstances where the proposed
settlement agreement may require amendment.
i) The Commission panel will normally accept or reject the entire settlement package
but if the Commission panel decides to suggest changes to the settlement it will give
registered intervenors full opportunity to address any proposed change, including
sufficient time to make submissions on the impact of any change to the validity of
the overall settlement;
ii) One or more participants may become aware of important new information that was
not reasonably available to them at the time of the settlement discussions and which
has a significant bearing on the assumptions upon which the settlement was reached;
or
iii) All participants may decide to opt out of the proposed settlement agreement pending
an acceptable amendment.
Amendments will not be made once the Commission panel has reviewed and accepted the terms of a
settlement.
![Page 601: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/601.jpg)
British Columbia Utilities Commission
10
Negotiated Settlement Process
When participants sign off a proposed settlement they agree to provide their support to the
agreement and agree to waive their right to present evidence and cross-examine on matters dealt
with by the agreement.
V GUIDELINES FOR THE NEGOTIATED SETTLEMENT PROCESS
1. All negotiations are on a without prejudice basis for each issue until that issue has been
signed off.
2. Once an issue has been signed off, the participants signing off agree not to dispute that
issue at a hearing on the settlement agreement (settlement hearing) unless new material
information becomes available that was not reasonably available at the time of the
negotiations.
3. Participants dissenting from a proposed agreement may submit a written argument to the
Commission panel. If the Commission panel is of the view that the dissent is reasonable
and material, it may request written rebuttal argument or, where the settlement review
process is to occur at an oral hearing, request argument at the oral hearing. If the dissent is
determined to be reasonable and material, the dissenting party retains the right to cross-
examine, call evidence, and make final argument on the issue at a settlement hearing without
prejudice to any positions that they may or may not have taken during the negotiations. In
such an instance, no reference will be made to any positions taken by any other participant
during the negotiations. In like manner participants that do sign off, preserve the right to
cross-examine, call evidence, and make final argument on the issue raised by dissenting
participants.
4. Participants to the negotiations agree that they will not raise at a settlement hearing any
position taken by other participants during the negotiations.
5. Participants to the negotiations agree that they will not communicate the positions taken at
the negotiations to third parties unless all the participants to the negotiations agree.
6. Once the negotiations are completed, and all issues are signed off, the proposed settlement
agreement will be circulated to all other interested parties whether or not they were present at
the negotiations in order to advise them of the negotiations and to obtain the positions of
those not present.
![Page 602: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/602.jpg)
British Columbia Utilities Commission
11
Negotiated Settlement Process
7. The Commission panel will be provided with the proposed settlement agreement and
supporting information at the time it is circulated to all other interested parties. The
Commission panel will also be provided with any comments submitted by interested parties.
8. The Commission panel will not be provided with any information about the negotiations per
se unless the participants to the negotiations agree.
VI CONFIDENTIALITY AGREEMENT OF PARTICIPANTSTO THE NEGOTIATED SETTLEMENT PROCESS
As discussed in section IV, paragraph 4 above, “Discussions Without Prejudice and Confidential”,
bargaining positions presented during the settlement discussions will be without prejudice and
confidential. All parties in attendance during settlement negotiations must agree to the
confidentiality agreement set out below and comply with the confidentiality agreement, or they will
not be permitted to attend the negotiated settlement process.
We, on behalf of ourselves, and/or on behalf of our clients, as the case may be, will
not disclose any positions taken either orally or in writing during the course of the
negotiated settlement process to any parties not subject to this confidentiality
agreement without the consent of all participants to the negotiations.
Without restricting the generality of the foregoing, we acknowledge that this
confidentiality agreement will prevent us, or our clients, from cross-examination on
those positions at any public hearing held in this matter and further prevent us from
making use of those positions against the proponent of the positions in any
argument at such hearing. Similarly, we undertake not to cross-examine witnesses
about any positions taken in the negotiated settlement process.
We further acknowledge that we have fully read and now agree to conduct our
attendance and negotiations according to the Negotiated Settlement Process - Policy,
Procedures and Guidelines as set out by the Commission.
![Page 603: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/603.jpg)
aRetail Markets
Downstreamof the Utility Meter
Guidelines
APRIL, 1997
![Page 604: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/604.jpg)
TABLE OF CONTENTS
Page No.
1 . 0 INTRODUCTION 1
2 . 0 THE RETAIL MARKET DOWNSTREAM OF THE UTILITY METER 2
3 . 0 ROLE OF THE COMMISSION IN THE NEW MARKET PLACE 5
4 . 0 STAFF PROPOSAL: POSITIONS OF PARTIES 8
4.1 Commission Objectives 94.2 Choosing a Corporate Structure: Criteria 104.3 Choosing a Corporate Structure: Principles 134.4 Transfer Pricing Policy 154.5 Code of Conduct 174.6 Other Issues 21
5 . 0 COMMISSION GUIDELINES WITH RESPECT TO UTILITYOR NRB PARTICIPATION IN DOWNSTREAM RETAIL MARKETS 2 1
5.1 Use of Utility Assets and Services in the Downstream Retail Market 21
5.1.1 Jurisdiction 215.1.2 Objectives 225.1.3 Criteria 235.1.4 Principles 24
5.2 Transfer Pricing Policy 245.3 The Code of Conduct 265.4 Other Issues 27
APPENDIX 1
![Page 605: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/605.jpg)
1
1 . 0 INTRODUCTION
On July 10, 1996, the Commission announced a process for the review of the retail market downstream of
the utility meter. In particular the Commission sought to examine the forces which are causing utilities to
wish to expand the number and kinds of services which they offer and to determine if, and to what extent,
utilities and/or their affiliated non-regulated businesses ("NRBs") should be allowed to participate in
downstream retail markets.
As an initial step in the review process, the Commission held a workshop on October 16, 1996 at which a
variety of parties were given the opportunity to present their views. In addition, the Commission called
for written submissions by October 31, 1996, including advice as to what future processes were required
to address the issue. Submissions were received from many parties, including utilities, marketers,
independent contractors, and customers. After reviewing all the submissions, the Commission determined
that this matter could best proceed through a written process. Accordingly, the Commission instructed
staff to prepare a position paper on this topic which could then be circulated for discussion by interested
parties.
The staff paper, which was released December 16, 1996, reviewed the traditional role of utilities and
emerging pressures for changes to this role, provided staff's interpretation of the Commission's
jurisdiction with respect to utility or utility-affiliated NRB participation in the downstream market, and
summarized the issues and concerns regarding utility participation which had been presented to the
Commission. Based on the above, staff concluded that there were likely to be circumstances in which
utility participation in the downstream market, either directly or through an NRB using some utility
facilities or services ("related-NRB"), would be desirable and other circumstances in which participation
should be limited to self-financing, stand-alone, arm's length NRBs using no resources of the utility.
Accordingly, the staff position paper proposed a set of principles and guidelines for the Commission to
use to assess individual utility proposals to determine which proposals should be pursued using stand-
alone NRBs and which could be pursued either by the utility directly or through a related-NRB.
Initial comments to the Commission on the position paper were requested by January 31, 1997. In
addition, the process allowed parties to respond to the initial comments of other parties by supplying reply
comments to the Commission by February 21, 1997. The Commission received initial comments from
24 parties and replies to the initial comments from six parties. A list of parties providing comments is
attached as Appendix 1.
This document summarizes the submissions made with respect to the staff position paper and concludes
with the findings of the Commission with respect to the participation of utilities and their NRBs in the
retail market downstream of the utility meter.
![Page 606: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/606.jpg)
2
2 . 0 THE RETAIL MARKET DOWNSTREAM OF THE UTILITY METER
As discussed in the staff position paper, utilities are generally established in response to natural monopoly
conditions. A natural monopoly is said to occur if the provision of a good or service can be provided at
lowest cost by a single firm, rather than by two or more firms; i.e., there exist substantial economies of
scale. Utilities may also be asked to provide an associated product if its provision by the utility leads to
economies of scope; i.e., a single firm is able to produce two or more joint products at a lower unit cost
than single firms each producing just one of these products. However, because the provision of the good
or service by a single firm leads to the potential of monopoly pricing, utilities are generally regulated with
respect to price and service quality. A very broad definition of a public utility is provided in the Utilities
Commission Act ("the Act") for the purposes of regulation under Part 3 of the Act. The definition has
remained unchanged since the 1970s.
Since the mid-1980s, both natural gas and electricity utilities have found that at least some of the services
which they have traditionally provided, including commodity sales and energy-efficiency services, can be
provided by other non-regulated market participants. As a result, the breadth of true natural monopoly
services has decreased even though the range of regulated utility options has greatly expanded to
accommodate competitive markets upstream of the utility. This has led to the deregulation of certain
commodity components of traditional utility services and reliance for their provision on the competitive
market. As well, it has prompted requests for further deregulation of other services still provided by the
utility.
One consequence of the growing deregulation of natural gas and electricity utilities has been a movement
towards convergence between the markets for natural gas and electricity. One response to this
convergence has been the emergence of 'mega-marketers', that is, firms which offer customers a full menu
of energy services, including provision of both the natural gas and the electricity commodity, commodity
contract marketing, equipment sales, rentals and servicing, and energy efficiency marketing. For those
customers who have the technical capability, the emergence of mega-marketers allows them to switch more
easily between natural gas, electricity and efficiency measures as prices dictate. For all customers, the
emergence of mega-marketers can mean increased convenience through 'one-stop shopping'.
The reduction in the size of the traditional utility domain, as certain services become available from non-
regulated suppliers and as mega-marketers become more prominent, has led some utilities to re-evaluate
their traditional service offerings. For some utilities, this is leading to a desire to offer services not
previously offered by utilities and to move into downstream retail markets not traditionally served by
utilities. For others, it is leading to a desire to change the way in which services are offered, notably to
offer certain services on a non-regulated basis in the downstream retail market rather than as a regulated
tariff item.
![Page 607: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/607.jpg)
3
The retail market downstream of the utility meter can generally be described as consisting of those goods
and services which are related to or support the delivery and/or use of the energy commodity. Figure 1
identifies many of the energy and energy-related products and services contained in the retail market
downstream of the utility meter.
Figure 1: Potential Goods and Services Downstream of the Utility Meter
Burner Tip/End-Use Services Billing and Metering1
- Repair and Maintenance Meter Services- Equipment Sales/Rentals Safety and Security Services
DSM Investments - Carbon Monoxide Detectors
Financing - Call Dispatch
Warranties Heating Insurance Services
Energy Management Systems Commodity Sales
In general, the total range of goods and services potentially provided by energy utilities can be categorized
as belonging to one of three areas. Figure 2 depicts these areas as part of the question of determining the
proper domain of the utility. These areas are: goods and services which still clearly are defined as core
monopoly products (e.g., wires and pipes), competitive products which could best be produced by a
variety of players operating within a competitive market (e.g., appliance sales), and debatable/transitional
products, i.e., those which are associated with the monopoly core and which may or may not be
considered true monopoly activities depending on one's assessment at any given time (e.g., billing/meter
information). For example, these products might be provided by the utility as they emerge, later be
produced by a mix of utility and unregulated providers as the market grows and eventually be provided
solely by the competitive market when the market is mature (e.g., natural gas vehicle conversions). Core
monopoly products result primarily from economies of scale or scope and are expected to decrease as a
result of advances in technology reducing these economies, competitors' demands for access to the market
for these products, customers' demands for more choice and the success of deregulation elsewhere.
1. Some parties argue that the meter/regulator assembly and meter reading information to customers may also become a
competitive service. However, in the near term, the utility will require basic meters in its control to verify the quantitiesof energy transported by the monopoly pipes or wires.
![Page 608: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/608.jpg)
4
Figure 2
The Domain of the Utility
Competitive Products
e.g., Appliance Sales
CoreMonopolyProducts
e.g., pipes, wires
Debatable / Transitional Productse.g., billing / meter information
![Page 609: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/609.jpg)
5
Figure 3: Goods and Services Providers Downstream of the Utility Meter
Heating/Cooling/Plumbing and Electrical Contractors
Mega-Box Stores
Appliance Retailers
Energy Service Companies ("ESCOs") Telecom/Cable Companies
Energy Consultants Financial Institutions
Security Companies Software Developers
Home Service Retailers Call/Dispatch Centres
Home Inspectors B.C. Utilities and NRBs
Hardware/Lumber Stores Non-B.C. Utilities and NRBs
Figure 3 identifies current and potential service providers of goods and services downstream of the utility
meter. These parties vary substantially in size and specialization. Other market participants include
traditional customers and other parties such as water/sewer service providers and emergency response
providers that might be able to use services which the utility provides 'in-house', (e.g., meter reading,
dispatch services).
3 . 0 ROLE OF THE COMMISSION IN THE NEW MARKET PLACE
In British Columbia, regulation of natural gas and electricity utilities is undertaken by the British Columbia
Utilities Commission ("BCUC", "the Commission") under the authority of the Act. The Commission’s
powers include oversight of utility rates and the utility expenditures responsible for those rates. The staff
position paper concluded that these powers give the Commission the ability to define the utility's domain,
that is to determine which goods and services the utility will provide, since the utility would be unlikely to
offer services for which it cannot recover the costs. As a result, the paper suggested that the Commission
has the power to influence the corporate structure under which utility shareholders will participate in the
unregulated market.
Four corporate structures, under which retail products and services could potentially be provided, were
identified in the staff position paper: i) through the utility as a regulated tariff product; ii) through the utility
as a non-regulated product; iii) through an NRB affiliated with the utility either as a subsidiary or through a
parent company and using some utility facilities and services; or iv) through an NRB but using no utility
facilities or services. These structures are differentiated primarily by the extent to which utility assets and
services are used to provide goods and services into the downstream retail market. These four corporate
structures are presented in Figure 4.
![Page 610: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/610.jpg)
6
Figure 4
Potential Corporate Structures
1The utility is the sole
corporate entity, providing downstream products
through a regulated tariff.
2The utility is the sole
corporate entity, providing downstream products on an unregulated basis, perhaps
through a division.
Utility Utility
ParentCompany
ParentCompany
Utility RelatedNRB
Utility Stand-AloneNRB
3Unregulated retail products
provided by related NRB using some utility facilities
and services.
4Unregulated retail products
provided by stand-alone NRB using no utility facilities or
services.
Unregulatedproductsdivision
![Page 611: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/611.jpg)
7
Although the paper suggested that the Commission can determine how the utility or its affiliates participate
in the unregulated market, it indicated that the Commission does not have the power to control the activities
or to determine what services an NRB will provide if the NRB is a self-financing, stand-alone, arm's
length affiliate using no resources of the utility. However, where the NRB is not a completely stand-alone
entity, the paper suggested that the Commission can exercise control over funding, manpower or other
services that may be provided by the utility to the NRB, including the use of shared offices, shared
services and manpower charge-out rates.
In either case, the paper stated that the power to oversee utility rates and expenditures confers on the
Commission the power to oversee the relationship between the utility and any related-NRB to ensure that
no NRB costs are passed on to utility customers. Specifically, the Commission has a duty to ensure that
utility ratepayers are, at the very least, not negatively affected by the activities of NRBs. However, the
paper indicated that it is less clear whether the Commission has the power to ensure that NRBs receive no
benefit from being affiliated to a utility, even if no costs accrue to the utility customers from the affiliation.
As expected, the Commission received a variety of comments concerning the views expressed in the staff
position paper. Generally, the utilities argued that the Commission had limited jurisdiction with respect to
the issue of utility participation, either directly or indirectly, in downstream retail markets. For example,
the British Columbia Hydro and Power Authority ("B.C. Hydro") argued that the Act does not grant
jurisdiction to the Commission to regulate competition in downstream retail markets, to restrict a utility in
any way from entering the downstream retail market, nor to exercise any sort of jurisdiction over the
activities of a stand-alone NRB.
BC Gas Utility Ltd. ("BC Gas") argued that the Commission has the jurisdiction to oversee the prudency
of the provision of resources by the utility to an NRB but has no jurisdiction to constrain an NRB from
obtaining resources from the utility or any other market provider. This seems to imply that in BC Gas'
view the Commission has responsibility to minimize potential negative impacts on ratepayers but cannot
determine what benefits, if any, NRBs or other participants receive from the utility as long as there is no
risk of cross-subsidization from ratepayers. In addition, BC Gas stated that the Commission has no
jurisdiction to determine the appropriate degree of competition in the market place.
Westcoast Energy Inc. ("Westcoast") also argued that the regulator does not have jurisdiction over the
activities of the NRB even if the NRB purchases some support services from the utility. Westcoast stated
that the regulator is limited to ensuring that the utility does not, by its behavior or structure, abuse its
monopoly position to prevent the development or continuation of a competitive market for those products
and services that are not regulated. Westcoast stated that this implies that there should be no cross-
subsidization and that NRBs should not be given information which would interfere with fair competition.
![Page 612: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/612.jpg)
8
Enron Capital and Trade Resources Corp. ("Enron") took a broader view of the Commission's powers,
stating that the Commission's powers include the ability to restrict a utility from entering the downstream
retail market and to regulate the relationship between the utility and NRBs. In Enron's view, this includes
the power to ensure that NRBs receive no benefit from their affiliation with a utility, even if no costs
accrue to the utility customer. In this view they were supported by the Heating, Ventilating and Cooling
Industry Association ("HVCI").
In response to these submissions, the Commission staff sought a legal opinion on the issue of the
Commission's jurisdiction with respect to downstream retail markets. In summary, the opinion stated the
following:
1. The Commission does not have the jurisdiction to directly regulate an NRB unless the NRB isitself a public utility, a common carrier, or a common processor.
2. The Commission has the jurisdiction to regulate the relationship between a public utility and anaffiliated NRB to the extent that the relationship affects ratepayers. For example, the Commissionhas the jurisdiction to ensure that an NRB is not 'subsidized' by a public utility to the detriment ofratepayers.
3. The Commission does not, however, have the jurisdiction to regulate the relationship between apublic utility and an NRB so as to ensure the relationship does not affect the competitive retailmarket downstream of the meter. The Commission's jurisdiction is limited to consideration of theeffects of the relationship on ratepayers.
4. The Commission has the jurisdiction to regulate retail market downstream of the utility meter("RMDM") activities by a public utility, but only to the extent that such activities affect ratepayers.Similarly, the Commission has the jurisdiction to prohibit a public utility from participating inRMDM if prohibition is the only reasonable and effective means by which the Commission canmitigate or alleviate any negative effects on ratepayers.
5. Ratepayers do not own a public utility's corporate name. The corporate name is goodwill which isowned by the company. The shareholders have a right to share in the assets of a company,including the corporate name, if the company is dissolved.1
4 . 0 STAFF PROPOSAL: POSITIONS OF PARTIES
This section contains a summary of the views presented in the submissions regarding the staff paper. The
Commission's determinations on these issues are provided in Section 5. This allows for a consolidated
statement of Commission policy that may be used as a working document for future discussions.
1. Opinion Letter from Boughton, Peterson Yang Anderson dated March 10, 1997.
![Page 613: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/613.jpg)
9
4 . 1 Commission Objectives
The Commission staff position paper proposed a set of principles and guidelines to help the Commission
make determinations regarding utility and related-NRB participation in the retail market downstream of the
utility meter. As a starting point, the paper identified four objectives which staff suggested should guide
any determinations the Commission made. These are presented in Figure 5.
Figure 5: Suggested Commission Objectives
There must be no subsidy of unregulated business activities, whether undertaken bythe utility or its NRB, by utility ratepayers.
The risks associated with participation in the unregulated market must be borneentirely by the unregulated business activity, that is the risks must have no impact onutility ratepayers.
The most economically efficient allocation of goods and resources should be sought.
Customer choice should be maximized.
These objectives were not seen to be completely mutually achievable in all cases so that it was expected
that trade-offs between objectives would need to be made. Further, staff expected that the extent to which
the achievement of one objective would preclude the achievement of another would depend on the
individual circumstances associated with a proposal. As a result, staff suggested that any proposal by a
utility to enter the downstream retail market, either directly or through a related-NRB, should be evaluated
by the Commission on a product and utility specific basis.
All parties seemed to be in agreement with the first two objectives identified in the staff position paper,
although Pacific Northern Gas Ltd. ("PNG") stated that there should be symmetry between risk and
reward so that, if the NRB bore all the risk of the unregulated enterprise, it should also receive all the
reward.
However, several parties took issue with the third and fourth objectives identified in the paper. The
Consulting Engineers of British Columbia ("CEBC") suggested that the Commission did not have the
jurisdiction to pursue either the third or fourth objectives. This was echoed by HVCI who argued that the
Commission did not have a mandate to influence the market in any way. In particular, they argued that the
Commission's mandate did not extend to exploiting economies of scale or scope, even if their exploitation
benefited ratepayers, nor did it extend to the maximization of customer choice. The Mechanical
![Page 614: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/614.jpg)
10
Contractors Association of British Columbia ("MCABC") suggested that the objectives were unclear while
PNG indicated that economic efficiency was difficult to measure objectively.
In contrast, the Consumers Association of Canada (B.C. Branch) et al. ("CACBC (B.C.) et al.") agreed
with all four objectives and indicated that priority should be given to maximizing customer choice.
Westcoast also appeared to support all four objectives, arguing that customers should be free to choose
what they want and that their choice should determine market structure. Westcoast stated that the rights of
customers and shareholders to capitalize on potential efficiency gains should also be recognized. PNG
also supported the objective of customer choice and noted that a key aspect of customer choice is the
quality of service provided, not just the number of providers.
Enron also supported all four objectives but indicated that a fifth objective should be added, namely, the
preservation and enhancement of robust competition in downstream markets. Enron argued that
preservation and enhancement of robust competition would support economic efficiency and customer
choice. In contrast, BC Gas argued that the Commission did not have jurisdiction to preserve or enhance
competition so that the objective suggested by Enron should not be accepted.
BC Gas did not take issue with the four objectives put forward by staff but stated that different proposals
to move current utility services from the utility to an NRB will affect the objectives differently and that
flexibility will be required. Further, BC Gas argued that any statement of objectives adopted by the
Commission should include some reference with respect to the Commission pursuing these objectives only
in the areas in which it has jurisdiction.
4 . 2 Choosing a Corporate Structure: Criteria
As shown in Figure 4, the staff position paper identified four corporate structure options under which
goods and services could be provided to the downstream retail market. The paper suggested that, for any
individual proposal for utility participation in the downstream retail market, the corporate structure which
should be chosen was that which best met the four objectives. As shown in Figure 4, these corporate
structures are:
i) provision by the utility as a regulated tariff item;
ii) provision by the utility as an unregulated good;
iii) provision by an NRB using some utility resources; and
iv) provision by a completely stand-alone NRB using no utility resources.
![Page 615: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/615.jpg)
11
In assessing which of the four corporate structure options best satisfies the four objectives discussed
above for any particular proposal, the position paper suggested the following criteria.
i) Does a natural monopoly currently exist for the good or service?
ii) If the good or service is not a natural monopoly, can the utility ratepayer be sufficiently protected ifeither the utility or an NRB offers the good or service?
iii) Are there significant economies of scale or scope associated with the good or service?
iv) Could the provision of the good or service be used to offset assets which would otherwise bestranded?
v) Does there already exist significant customer choice with respect to the good or service?
vi) Is the provision of the good or service by the utility or a related-NRB likely to lead to marketdominance abuses in the long term?
Several parties indicated that of the four potential corporate structures identified for the delivery of goods
and services to the downstream retail market, only two were acceptable. These were: i) provision by the
utility as an regulated tariff item, and iv) provision by completely stand-alone NRBs using no utility
resources. Groups such as HVCI and MCABC argued that, unless the good or service were a natural
monopoly, utilities should only be allowed to participate in the downstream retail market through a stand-
alone NRB using no utility facilities or services. This was seen as providing maximum protection to the
ratepayer and is consistent with their view that only the first two of the four staff objectives should be
reflected in the Commission's decision making. Further, MCABC argued that given the current level of
fiscal restraint in government, it was unlikely that codes of conduct and other watchdog measures could be
adequately enforced.
These groups appeared to recognize that using utility resources to provide downstream services could
result in the avoidance of stranded utility assets but argued that it would be at the expense of current
service providers. CEBC argued that the Commission should not be concerned about the economic well-
being of the utility at the expense of the economic well-being of other industry participants, while MCABC
argued that reduced utility earnings now should be weighed against years of good, stable earnings.
Further, MCABC argued that allowing utilities to compete in the downstream retail market, either directly
or through related-NRBs, would lead to a loss of customer choice in the long term.
Enron also argued that utilities should be prohibited from participating in the downstream market other
than through stand-alone NRBs except under very exceptional circumstances. Although Enron did not
appear to reject the proposed criteria, they argued that restricting participation to stand-alone NRBs was
required to mitigate both the risk of cross-subsidization and the risk of anti-competitive behavior by the
utility. Further, they argued that, since the only appropriate utility functions were those related to the
![Page 616: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/616.jpg)
12
'pipes and wires', there was unlikely to be any significant economies of scale or scope to offset the
increased risk of a related-NRB. Finally, they argued that they did not believe utility participation would
enhance customer choice since any competitive advantage accruing to the NRB from association with the
utility would be detrimental to competition. For example, Enron suggested that utility participation in
Demand-Side Management ("DSM") programs does not enhance customer choice since it restricts
participation by new entrants that could provide the service. Accordingly, Enron asked the Commission to
adopt the decision taken by the Manitoba Public Utilities Board, which prohibited utility participation
except through completely stand-alone NRBs.1
In contrast to the position outlined above, the utilities supported the potential use of related-NRBs to enter
the downstream retail market. West Kootenay Power Ltd. ("WKP") agreed that a stand-alone NRB was
the best way to protect ratepayers but stated that it might not be ideal in every circumstance. In particular,
WKP argued that restricting participation to stand-alone NRBs could prevent achievement of economies of
scale or scope, particularly when these economies were linked to core competencies. Accordingly, WKP
argued that, when there are substitutes which could provide effective ratepayer protection, these
alternatives should be allowed .
BC Gas indicated that it wished to move existing utility services which could or should be provided on a
competitive basis out of the utility and into NRBs but indicated that this would need to be done as market
conditions permitted. Further, BC Gas indicated that, while it viewed the provision of retail services by a
stand-alone NRB as the preferred long-term option, since it prevented any cross-subsidization by utility
ratepayers, in the short run it might be necessary to use related-NRBs as a transitional step. BC Gas urged
the Commission to provide explicit recognition of the need to permit the 'transitioning' of emerging
RMDM products and services from regulated utilities to non-regulated companies. PNG also argued for
the use of related-NRBs to avoid stranded costs and stated that the issue of stranded costs was likely to
achieve greater importance as the areas of natural monopoly diminished.
BC Gas also expressed concern with how criteria v) and vi) might be applied. With respect to criterion v),
BC Gas suggested that, if the utility already has some of the market share of a product or service which is
now competitive, the service should be 'transitioned' to the market regardless of the number of
competitors. Further, the utility argued that existing and potential customers should be allowed to choose
the service they take as well as their service provider.
With respect to criterion vi), BC Gas argued that the Commission has no mandate to determine the
potential for long term competitive market abuses, except insofar as the utility's provision of services
potentially creates the abuses. Similar views were expressed by WKP, which argued that the
1. Manitoba Public Utilities Board, Public Hearing to Review the Guidelines for Acceptable Conduct Between Centra Gas
Manitoba In. and its Affiliated Companies, Order of the Board No. 110/96, released November 4, 1996.
![Page 617: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/617.jpg)
13
Commission could not consider impacts on unregulated business or unregulated markets when exercising
its jurisdiction over services provided by a utility to an NRB.
Westcoast recognized that total separation does provide maximum protection to ratepayers but argued that
other factors also needed to be considered. As indicated earlier, Westcoast argued that the rights of
consumers and shareholders to capitalize on potential efficiency gains were important. As a result, they
argued the degree of corporate separation should reflect individual circumstances.
Westcoast also expressed concern with respect to criterion vi), arguing that the regulator is limited to
ensuring the utility does not, by its behavior or structure, abuse its monopoly position to prevent the
development or continuation of a competitive market for those products and services which are not
regulated. Specifically, they argued that the Commission is confined to ensuring that there is no cross-
subsidization and that NRBs are not given information which would interfere with fair competition. In
addition, Westcoast stated that market dominance achieved under fair competition and contestable market
conditions was not, in and of itself, abusive. Finally, Westcoast argued that forcing a stand-alone NRB
structure on utility participation in retail markets was of no value to consumers unless it was the result of
customer choice.
Other parties, such as Willis Energy Services ("Willis") and Kanelk Transmission Company ("Kanelk"),
argued that participation through stand-alone NRBs should not be required under all circumstances. Willis
argued that this could lead to extra costs and that as long as NRBs covered their own costs ratepayers were
adequately protected. Kanelk argued that allowing utilities to compete in the downstream retail market
increased customer choice.
4 . 3 Choosing a Corporate Structure: Principles
Finally, the staff position paper suggested that if the six criteria discussed above were accepted, the
following principles would be appropriate for making determinations with respect to proposals regarding
specific goods and services.
i) If a natural monopoly exists for the good or service, it should be provided as a regulated tariff item(Corporate Structure 1 in Figure 4).
ii) Utility participation in the unregulated downstream market by completely stand-alone NRBs usingno utility resources is generally the preferred option since it provides the maximum protection toutility ratepayers (Corporate Structure 4 in Figure 4). Variations from this option should beundertaken only when it can be shown that this option would result in the loss of significanteconomies of scale or scope, the incurrence of substantial stranded costs for the utility, or unduerestriction in customer choice.
![Page 618: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/618.jpg)
14
iii) The onus should always be on the utility to prove that the benefits associated with the use of utilityresources are sufficient to warrant the changed structure. Generally, the Commission wouldexpect to see economies of scale or scope, or the avoidance of stranded costs, only with respect togoods or services which are closely aligned to the utility's core competencies, e.g., billing andmeter reading and meter services. Similarly, benefits from increased customer choice are mostlikely to occur in new and emerging markets or where there are few current providers of the goodor service, (e.g., equipment repair services in remote communities).
iv) If the Commission decides to allow the use of utility resources in the provision of the unregulatedgood or service, the preferred option is through a related-NRB (Corporate Structure 3 in Figure 4).Direct participation by the utility in the provision of an unregulated good or service should beallowed only when the costs associated with forcing the provision through the related-NRBstructure would significantly offset the benefits associated with the use of the utility's resources(Corporate Structure 2 in Figure 4).
v) Utilities and their related-NRBs must move unregulated products which use utility resources intostand-alone NRBs as soon as market conditions warrant or the Commission otherwise sodetermines (Corporate Structure 4 in Figure 4). Utilities will be required to provide periodic proofthat the benefits associated with the use of utility services continue to exist.
vi) In all cases, the Commission should consider the long-term effects on the market of utility orrelated-NRB provision of unregulated goods and services.
All parties appeared to agree that if a good or service were a natural monopoly, it should be provided as a
regulated tariff item. MCABC also supported the concept that a completely stand-alone NRB was the
preferred option for utility participation in the downstream retail market and that the onus is on the utility to
prove why a variation from this structure is desirable. However, MCABC opposed the use of any utility
resources in the provision of unregulated goods and services under any corporate structure.
MCABC supported the principle that utilities and their related-NRBs must move unregulated products
which use utility resources into stand-alone NRBs as soon as market conditions warrant or when the
Commission otherwise so determines. However, MCABC expressed concern that the staff position paper
appeared to envision a situation in which the utility would begin a project at ratepayer expense but move it
to an NRB once it became profitable, without compensation to the utility. MCABC argued that assets
acquired under regulation are not the exclusive property of the company and shareholders but are the
shared assets of both the company and ratepayers. Accordingly, it stated that if assets were moved to an
NRB, the utility and its ratepayers should be compensated.
As well, MCABC requested that the Commission nullify the 1988 agreement between Inland Natural Gas
and its successors and MCABC, regarding appliance sales. Finally, MCABC indicated that the principle
that the Commission should consider the long-term effects on the market of utility or related-NRB
provision of unregulated goods and services was unclear.
![Page 619: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/619.jpg)
15
The Association for the Advancement of Sustainable Energy Policy ("AASEP") also was concerned that
ratepayers might be made to pay the start-up costs for DSM programs which would then be transferred to
NRBs once the programs became profitable. Additionally, AASEP expressed concern that the movement
to non-regulated supply would change the type of programs offered, that market failures would not be
addressed and that too little DSM would be purchased. Accordingly, AASEP argued that utilities should
only be allowed to change DSM programs if they can show that the new programs would deliver equal or
greater savings.
Both PNG and BC Gas indicated that they saw the principles set out in the staff position paper as being
reasonable, although BC Gas stated that the Commission should make clear that any principles and
guidelines adopted by the Commission applied only to the provision of utility resources used to support
downstream retail market activities during a transitional period. Similarly, WKP stated that the final
principles and guidelines should clearly state that the principles and guidelines are not intended to affect
products and services traditionally provided by the utility, such as metering and billing. In addition,
BC Gas stated that in its view, in considering long-term effects, the Commission was limited to
considering the terms for provision of resources by the utility to a related-NRB and the impact on the
utility and its ratepayers, and not to the market generally. This view was supported by the City of New
Westminster ("the City") which suggested that the Commission did not have the jurisdiction to consider
the effect that utility-provided goods and services could have on the market. In addition, the City argued
that the Commission did not have the responsibility to determine when market or other conditions
warranted the transfer of a business activity from the utility to an NRB.
Kanelk stated that they did not support the principles set out in the paper since they viewed the
Commission's duty to be limited to ensuring that ratepayers do not subsidize non-regulated operations.
Accordingly, they argued that each utility should have the flexibility to develop its own corporate structure,
as long as it can reasonably demonstrate that the regulated operations are not subsidizing the non-regulated
operations.
4 . 4 Transfer Pricing Policy
The staff position paper suggested that, where utility resources are used to provide unregulated goods and
services, either directly or through a related-NRB, the use of the utility resources must comply with a
Commission-approved transfer pricing methodology. Further, the paper suggested that the transfer
pricing policy should ensure the following:
i) The operating costs of non-regulated activities are not reflected in the utility's cost of service.
ii) The costs of developing new business ventures are charged to and recovered from the NRB.
![Page 620: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/620.jpg)
16
iii) The accounting costs are transparent and fully recover costs for all services, including overhead,space, employee benefits, inconvenience, and a profit margin where appropriate. If the serviceprovided by the utility to the related-NRB could also be obtained from an independent supplier, theprice paid by the related-NRB to the utility should be no less than the competitive market price.
iv) The financial costs of each business are borne by the business. In the exceptional case where theutility provides guarantees, it must be given financial compensation.
All parties appeared to recognize that if the Commission were to allow utility affiliated NRBs to use utility
facilities or services, a transfer pricing policy governing these transactions is required. BC Gas stated that
ensuring an equitable return to the utility for any services provided, providing appropriate protection to
ratepayers and preventing any unfair competitive advantage from being conferred on the related-NRB
should be the prime considerations with regard to structuring such a policy. However, BC Gas also
argued that the specific components of the transfer pricing policy should be established on an NRB-
specific basis to reflect individual circumstances rather than as a blanket policy designed to apply to all
circumstances. Accordingly, BC Gas suggested that, in this process, the Commission should establish a
general framework to ensure that these goals were met but develop more specific rules when specific
applications were brought forward. BC Gas also argued that the transfer pricing policy should specify that
there would be periodic reviews for compliance. This was echoed by MCABC, which called for periodic
reviews of transactions between the utility and its NRBs.
WKP argued that the transfer pricing policy should simply ensure that the incremental operating cost of
non-regulated activities are not reflected in the utility's cost of service. Further, WKP stated that the price
at which facilities or services were priced to the NRB should be at their incremental cost of provision.
Although the staff position paper contemplated that facilities and services would be charged at the full
embedded cost of the facility or service, WKP argued that there was no economic reason to price at
anything more than incremental cost. Indeed, WKP argued that to price services above incremental costs
would result in ratepayers benefiting at the expense of the NRB customer.
PNG also suggested that the charge which the NRB paid should be based on the incremental or marginal
cost of providing the service but added that the charge should also include some return for the utility
ratepayer. In this way, PNG argued that the benefits of sharing services or facilities would accrue to both
the NRB and the utility rather than going entirely to the utility.
Kanelk indicated that it supported the transfer pricing policy although it suggested that if ratepayers were
bearing none of the risks of the non-regulated activities, they should reap none of the rewards. In
addition, Kanelk rejected the position that NRBs must be financed separately from the utility, suggesting
that this could result in a sub-optimal corporate structure which could adversely affect a utility's ability to
compete in the market.
![Page 621: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/621.jpg)
17
Enron, who had argued that NRBs should be stand-alone except under exceptional circumstances, argued
that utilities and their NRBs should be permitted to share overhead administrative services to the extent that
such sharing does not allow the exchange of market-sensitive information.
4 . 5 Code of Conduct
The staff position paper suggested that the utility and its NRB must comply with a Commission-approved
code of conduct. The paper suggested that each utility develop its own code of conduct to reflect its
particular circumstances and unregulated market offerings, but that all codes should cover employment of
utility personal, including career training and development, procedures for contracting for utility services
(sharing and costing of resources), treatment of confidential information (management and employees),
inter-company procurement and review of information (accounting, allocation and reporting). The policy
should also ensure that no financial risk from the unregulated activities accrues to the utility. Specifically,
sufficient safeguards should be put in place to protect utility ratepayers from any liability associated with
the unregulated activity.
Specific suggestions for inclusion in the code included the following:
i) The regulated company will not provide to the NRB any market-sensitive or confidentialinformation that would inhibit a competitive energy services market from functioning. Ifcustomers agree to the release of customer information, it should be provided to anyone for a pricebased on non-discriminatory access to the information.
ii) No regulated company personnel will state or imply that favoured treatment will be available tocustomers of the company as a result of using any service of an NRB.
iii) No regulated company personnel will preferentially direct customers seeking competitively offeredservices to an NRB.
iv) The regulated company will formally advise all employees of expected conduct related to theseprinciples and it will undertake to perform periodic audits of the relationships to ensure compliancewith these principles.
v) Complaints by non-affiliated parties about the application of these principles, or any alleged breachthereof, will be brought to the immediate attention of the senior management of the regulatedcompany and subsequently a report of the complaints, and action taken, will be filed with theCommission.
vi) The financing of the utility and NRB will be accounted for entirely separately with the financingcosts reflecting the risk profile of each entity.
vii) NRBs will not be allowed to use the utility name as the primary identifier of the company, but canmake reference to the name of its parent company on letter head, advertisements, etc.
![Page 622: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/622.jpg)
18
In those cases where retail customers have direct market access to the commodity, the utility's code of
conduct will also include the following provision.
viii) The regulated company will treat all requests for distribution system access for the purpose ofdirect commodity marketing equitably and according to the requirements approved for directcommodity marketing in British Columbia.
Several parties had comments with respect to the code of conduct. PNG stated that the relationship
between utilities and NRBs should be governed by a set of rules which ensure that there is no cross-
subsidization between the utility and the NRB and that there is no unfair competition. However, PNG
stated that these rules should not preclude the NRB from offering a complete menu of energy solution
services.
BC Gas stated that the code of conduct must outline the utility's relationship with its unregulated
businesses, including the transfer of information and the provision of resources, that it should ensure the
minimization of risks to ratepayers, and that it should ensure that no unfair advantages are created for the
NRB. However, BC Gas indicated that these rules may need modification during transition periods and
that the level of information sharing between the utility and the NRB should reflect specific circumstances.
Westcoast argued that concerns about cross-subsidization should be dealt with through cost allocation and
pre-determined transfer pricing guidelines. In addition, Westcoast argued that rules for affiliated NRBs
should not prohibit the affiliated NRB from offering a comprehensive package of services since, to do
otherwise, implies customers are precluded from the benefits of a bundled service.
HVCI expressed concern that the staff position paper contemplated each utility writing its own code of
conduct. HVCI appeared to be concerned that this would be done without Commission input and that each
utility would control what the code of conduct allowed. Enron suggested that the code of conduct should
be developed by a working group of all interested parties and that the Commission should set a deadline
for its development.
With respect to the first item in the suggested code of conduct, governing the flow of information, Kanelk
suggested that it be amended to state that the regulated company will provide confidential information to a
third party if requested to do so by the customer, without necessarily making the information available to
other third parties. In addition, Kanelk suggested that the utility be allowed to recover the costs of doing
so. Enron indicated that the code should include provisions which state that a regulated company should
not provide any market information to the NRB unless that information is made available on comparable
terms, in terms of price and timing, to other market participants. In contrast, WKP suggested that the code
of conduct should only include a statement as to the privacy of the customer information, a statement as to
![Page 623: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/623.jpg)
19
who shall have access to the information, and the fee to be charged to affiliates or any other party
requesting such information.
With respect to the second item, that no regulated company personnel will state or imply that favoured
treatment will be given if a customer does business with a utility NRB, Enron argued that the code should
include a prohibition from condoning or acquiescing in any other person stating or implying that favoured
treatment will be available to customers of the regulated company as a result of the customer using any
service of, or conferring any benefit directly or indirectly on, an NRB. In addition, Enron stated that the
third item in the suggested code, that no regulated company personnel will preferentially direct customers
seeking competitively offered services to an NRB, should be modified to state that if a customer or
potential customer requests from the regulated company information about products or services offered by
an NRB or its competitors in downstream markets, the regulated company may provide such information,
including a directory of retailers of the product or service, but shall not promote any specific retailer in
preference to any other retailer.
Several parties suggested revisions with regard to the complaint procedure described in the staff position
paper. CACBC (B.C.) et al. stated that the code should make provision for periodic reviews with the
results forwarded automatically to the Commission. Enron suggested that the code of conduct must be
effective and enforceable and expressed doubt that Section 124(4) of the Utilities Commission Act, which
allows the Commission the power to impose a penalty of up to $10,000 for failure to comply with a
direction of the Commission made under the Act, contained the appropriate or sufficient penalty. Enron
suggested that, if the code of conduct were breached, an appropriate penalty would be the loss of use of
utility resources for some specified period of time. Enron also argued that the Commission must review
and rule on any complaints concerning violations of the code. BC Gas suggested that all complaints
should be forwarded to the Commission which will then forward such complaints to the appropriate utility
for resolution. BC Gas also argued that flexibility with respect to penalties for non-compliance with the
code was needed and that there should not be one penalty for all code violations.
As indicated earlier, Kanelk rejected the position that non-regulated businesses must be financed separately
from the utility since they believed this could result in a sub-optimal corporate structure which could
adversely affect a utility's ability to compete in the market. However, Enron suggested that the code be
expanded to prohibit cross-guarantees or any other form of financial assistance whatsoever being provided
directly or indirectly by a utility to its NRB
Significant discussion revolved around the use of the utility name by NRBs. All utilities argued that the
right to use the utility name belonged to the shareholders of the utility who had the right to use it as they
wished. WKP stated that the value of the name arose from the goodwill with which the company was
regarded. As customers do not pay for goodwill in rates, WKP argued that the value of the name accrued
![Page 624: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/624.jpg)
20
solely to shareholders. Westcoast provided a similar argument. In addition, Westcoast maintained that
name recognition was not an unfair advantage.
CACBC (B.C.) et al. agreed that NRBs should be allowed to use the utility name since they viewed this as
providing information which customers would value. However, they maintained that the NRB should pay
for the privilege since the goodwill associated with the name belonged to the utility. If the NRB did not
pay for the use of the name, they maintained that this would amount to transferring a valuable asset to the
NRB without any compensation. They suggested that independent evaluations be done to establish the
value of any particular utility name.
HVCI took a similar position, arguing that the goodwill associated with the use of the utility name arose
from items for which ratepayers, through the utility, had paid, including institutional advertising and
charitable contributions. HVCI characterized the use of the utility name as a soft but effective cross-over
benefit which is inconsistent with the spirit of fair competition. Further, they argued that if the utility were
allowed to charge the NRB for the use of the name, the name should be made available to anyone who
wished to purchase it.
MCABC also argued that NRBs should not be allowed to use the utility name. They argued that assets,
acquired under regulation, are not the exclusive property of the company and shareholders but the shared
assets of both the company and the broader shareholders, the rate-paying public. In particular, they
argued that the name was an asset of the utility and that the assets of the utility belonged to ratepayers since
the assets had been paid for through rates. Further, they argued that the fact that NRBs wanted to use the
utility name implied that NRB participation is not viable without it.
With respect to the last item in the proposed code of conduct, that the regulated company will treat all
requests for distribution system access for the purpose of direct commodity marketing equitably and
according to the requirements approved for direct commodity marketing in B.C., Enron argued that
'equitably' should be defined as follows:
1. A utility must apply any tariff provision relating to utility service in the same manner to the same orsimilarly situated persons if there is discretion in the application of the provision.
2. A utility must strictly enforce a tariff provision for which there is no discretion in the application ofthe provision.
3. A utility may not, through a tariff provision or otherwise, give its marketing affiliates or customersof affiliates, preference over non-affiliated companies or customers in matters related to utilityservice including, but not limited to, scheduling balancing metering, storage, standby service, orcurtailment policy.
4. A utility must process all similar requests for utility (service) in the same manner and within thesame time period.
![Page 625: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/625.jpg)
21
In addition to comments on the items in the proposed code of conduct, some parties suggested certain
additions. CACBC (B.C.) et al. suggested that the code provide more specific guidance. For example,
they argued that the code should include a prohibition of routine movements of personnel between utilities
and NRBs by way of transfers or promotions. In addition, Enron stated that the code should require
separation of the operating personnel of the NRB from the operating personnel of the utility to the
maximum extent possible.
4 . 6 Other Issues
Certain parties, such as Novagas Clearinghouse Ltd., stated that the commodity function should be
removed from the utility since provision of the commodity is not a natural monopoly.
5 . 0 COMMISSION GUIDELINES WITH RESPECT TO UTILITYOR NRB PARTICIPATION IN DOWNSTREAM RETAIL MARKETS
5 . 1 Use of Utility Assets and Services in the Downstream Retail Market
5.1.1 Jurisdiction
Based on the submissions received as well as the legal opinion sought by staff, the Commission
understands its jurisdiction with respect to the use of utility assets and services to provide unregulated
goods and services to be as follows.
The Commission does not have the power to control the activities or to determine what services an NRB
will provide if the NRB is a self-financing, stand-alone, arm's length affiliate using no resources of the
utility.
The Commission has the jurisdiction to regulate the relationship between a public utility and an affiliated
NRB to the extent that the relationship affects ratepayers. The Commission may implement a transfer
pricing policy to regulate the interface between the utility and the NRB or may prohibit a utility from
providing an NRB with any utility assets and services if, in the Commission's judgment, this is required
to protect ratepayers.
The Commission has the jurisdiction to prohibit a public utility from participating in retail markets
downstream of the meter if prohibition is the only reasonable and effective means by which the
Commission can mitigate or alleviate any negative effects on ratepayers. In this case, the parent
corporation of the utility may still decide to create a subsidiary NRB to participate in the retail market
downstream of the meter. Alternatively, the Commission may implement a transfer pricing policy to
![Page 626: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/626.jpg)
22
regulate the interface between the regulated and unregulated activities of the utility if in the Commission's
opinion this provides ratepayers with sufficient protection.
The Commission supports the general position of staff that determinations regarding the extent and manner
in which utility assets and services may be used to provide goods and services to the downstream retail
market should be made on a basis which takes into account individual circumstances. However, it is clear
from the submissions received and the legal opinion that certain changes to the specific objectives, criteria
and principles initially proposed by staff are needed. The objectives, criteria and principles which the
Commission intends to use to guide its determinations regarding the extent to which utility assets and
services may be used to provide goods and services to the downstream retail market are outlined below.
5.1.2 Objectives
Based on the information received, it is clear that the Commission has jurisdiction to consider the first two
objectives given in the staff position paper when considering the extent to which utility assets and services
may be used to provide goods and services to the downstream retail market. Conversely, the Commission
finds that it has no jurisdiction to consider the impacts of the use of utility assets and services, either
directly or through NRBs, on the retail market downstream of the meter. Accordingly, the fourth staff
objective, that customer choice should be maximized, and the additional objective proposed by Enron, that
robust competition in downstream markets should be preserved and enhanced, are beyond the
responsibilities of the Commission in making its determinations.
With respect to the third objective identified by staff, that the most efficient allocation of goods and
resources should be sought, the Commission believes that this forms a proper part of its consideration, but
only to the extent that ratepayers are affected. Accordingly, the Commission believes that it may consider
whether a proposal would enhance or reduce the possibility of stranded utility assets, or otherwise increase
the economic efficiency with which utility assets are used for the benefit of ratepayers, but may not
consider the implications for economic efficiency with respect to the larger market. The Commission
accepts the concern voiced by some parties that a precise measurement of economic efficiency is not
possible, particularly when considered from a societal perspective, but expects that it is possible to
determine directionally whether a particular proposal enhances or reduces the likelihood of stranded costs
or otherwise provides benefits to ratepayers.
Accordingly, the objectives which will guide the Commission's determinations with respect to utility and
NRB participation in the retail market downstream of the meter are as follows.
![Page 627: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/627.jpg)
23
Figure 6: Commission Objectives
There must be no subsidy of unregulated business activities, whether undertaken bythe utility or its NRB, by utility ratepayers.
The risks associated with participation in the unregulated market must be borneentirely by the unregulated business activity, that is the risks must have no impact onutility ratepayers.
The most economically efficient allocation of goods and resources for ratepayersshould be sought.
In addition, the Commission agrees with staff that greater achievement of one objective may require a
lesser achievement of another objective so that trade-offs may be required. The Commission will be the
sole arbiter of how the trade-off between objectives should be made in determining the extent and manner
in which utility services and assets may be used to participate in the retail market downstream of the utility
meter.
5.1.3 Criteria
With regard to the six criteria proposed by staff, the Commission has concluded that they should be
revised as follows.
i) Does a natural monopoly currently exist for the good or service?
ii) If the good or service is not a natural monopoly, can the utility ratepayer be sufficiently protectedthrough a transfer pricing policy mechanism if either a division of the utility or a related-NRBoffers the good or service?
iii) Will the use of utility assets or services in the provision of the good or service reduce the risk ofutility assets being stranded to the detriment of ratepayers or otherwise provide benefits toratepayers?
In coming to the conclusion that staff criteria three, five and six should not form a basis for its
determinations, the Commission finds that it has jurisdiction to consider the impacts, either positive or
negative, of the use of utility assets or services in the provision of goods to the downstream retail market,
only with respect to utility ratepayers. If the new service is to be provided within the utility, the
Commission will consider the appropriateness of this service within the mandate of the public utility.
![Page 628: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/628.jpg)
24
5.1.4 Principles
Based on its analysis of the submissions, the Commission determines that principle six, that in all cases
the Commission should consider the long-term effects on the markets of utility or related-NRB provision
of unregulated goods and services, falls outside of its jurisdiction. Similarly, the Commission accepts that
the principles must be revised to exclude references to considerations of customer choice.
Accordingly, the Commission accepts that the following principles should govern the choice of corporate
structure.
i) If a natural monopoly exists for the good or service, it should be provided as a regulated tariff item(Corporate Structure 1 in Figure 4).
ii) Utility participation in the unregulated downstream market by completely stand-alone NRBs usingno utility resources is the preferred option since it provides the maximum protection to utilityratepayers (Corporate Structure 4 in Figure 4). Variations from this option should be undertakenonly when it can be shown that this option would result in substantial stranded costs for the utilityand/or that a transfer pricing policy mechanism will act to provide sufficient protection forratepayers.
iii) The onus should always be on the utility to prove that the benefits associated with use of utilityresources are sufficient to warrant the changed structure and that the transfer pricing policymechanism will provide sufficient protection to ratepayers.
iv) If the Commission decides to allow the use of utility resources in the provision of the unregulatedgood or service, the preferred option is through a related-NRB (Corporate Structure 3 in Figure 4).Direct participation by the utility in the provision of an unregulated good or service should beallowed only when the costs associated with forcing the provision through the related-NRBstructure would significantly offset the benefits associated with the use of the utility's resourcesand it can be shown that a transfer pricing policy mechanism will provide sufficient protection forratepayers (Corporate Structure 2 in Figure 4).
v) Utilities and their related-NRBs will be encouraged to move unregulated products which use utilityresources into stand-alone NRBs as soon as market conditions warrant (Corporate Structure 4 inFigure 4). When a utility-provided product is moved to an NRB, the NRB will be required to payfair market value to the utility for the assets, including goodwill, associated with the product. Inaddition, utilities will be required to provide periodic proof that the benefits associated with the useof utility services continue to exist and that ratepayers continue to be sufficiently protected. TheCommission will make directions to prohibit the use of utility assets and services in the provisionof goods and services downstream of the retail market at any time that it finds it in the interests ofratepayers to do so.
5 . 2 Transfer Pricing Policy
As indicated above, the Commission's jurisdiction with respect to the extent to which utility assets and
services can be used to provide goods and services in the downstream retail market is centred on the
protection of ratepayers. Accordingly, the Commission is convinced that any transfer pricing policy must
ensure that ratepayers are kept harmless from any excursion by the utility, either directly or indirectly, into
the downstream retail market.
![Page 629: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/629.jpg)
25
The Commission has concluded that the four components of a transfer pricing policy outlined in the staff
position paper are essential. In addition, the Commission agrees with groups such as MCABC that the
transfer pricing policy should include a requirement for periodic reviews of transactions between a utility
and its NRBs.
The Commission does not agree with parties, such as WKP, who argued that the price at which utility
assets or services are charged to the NRB should reflect the incremental cost of provision only. These
services have value and the NRB should expect to pay for that value. To do otherwise would mean that all
the benefits of shared services accrues to the NRB. Accordingly, the Commission concludes that the
provision in the staff paper with respect to pricing of assets and services is appropriate.
Generally, costing should recover the fully allocated cost or the incremental cost, whichever is higher.
This will ensure that ratepayers will benefit or are not harmed by the transaction. Where the incremental
costs are lower than the fully allocated cost, ratepayers should receive a value by pricing above the fully
allocated cost towards a market price for the service. In this latter instances, the Commission will need to
consider if such services should be provided to all competitors or to the NRB exclusively.
The Commission is not convinced by the argument that the specific components of the transfer pricing
policy should be established on an NRB-specific basis to reflect individual circumstances rather than as a
blanket policy designed to apply in all circumstances. Although the Commission accepts that there may be
provisions required for a gas utility that may not be required for an electricity utility, or vice versa, the
Commission will be reluctant to approve any transfer pricing policy which deviates significantly from that
which the Commission believes provides the most protection to ratepayers. In all cases, the burden will lie
with the utility to prove that deviations are appropriate.
Accordingly, the Commission concludes that a utility's transfer pricing policy should ensure the following:
i) The operating costs of non-regulated activities are not reflected in the utility's cost of service.
ii) The costs of developing new business ventures are charged to and recovered from the NRB.
iii) The accounting costs are transparent and will normally fully recover for all services, includingoverhead, space, employee benefits, inconvenience, and a profit margin where appropriate. If theservice provided by the utility to the related-NRB could also be obtained from an independentsupplier, the price paid by the related-NRB to the utility should be no less than the competitivemarket price and will never be below the incremental cost.
iv) The financial costs of each business are borne by the business. In the exceptional case where theutility provides guarantees, it must be given financial compensation.
v) Utilities will be required to file periodic reports which demonstrate that they are adhering to thetransfer pricing policy. The form and timing of the report will be determined by the Commission.
![Page 630: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/630.jpg)
26
The Commission will require utilities to bring forward for approval proposed transfer pricing policies at
the time they bring forward any application to use utility assets or services in the provision of unregulated
goods and services in the downstream retail market.
5 . 3 The Code of Conduct
In order to protect ratepayers, the Commission will require each utility to bring forward for approval a
code of conduct for the relationship between the utility and its NRBs or the utility and any division within
the utility which offers unregulated goods or services, at the time the utility brings forward any application
to use utility assets or services in the provision of unregulated goods and services.
As with the transfer pricing policy, the Commission is convinced that any code of conduct must ensure
that ratepayers are kept harmless from any excursion by the utility, either directly or indirectly, in the
downstream retail market. Accordingly, the Commission generally does not accept the argument that the
code of conduct should be modified during transition periods and that the level of information sharing
between the utility and the NRB should reflect specific circumstances. Although the Commission can
envision some circumstances in which such a relaxation of the code might be possible without jeopardizing
ratepayers, in these circumstances, the burden of proof that such exceptions are justified will lie with the
utility. Further, the justifications must lie within the Commission's jurisdiction to consider. In the
absence of sufficient evidence by the utility, no relaxation of the code will be allowed.
Many suggestions were received with respect to the specific elements which should be included in the code
of conduct. Much of this debate centred around the use of the utility name by NRBs. The Commission is
concerned that the use of the utility name by related-NRBs could interfere with the Commission's
responsibility to protect ratepayers. The Commission will likely have to rule on this matter on a case by
case basis considering the related-NRB function, the potential impact on ratepayers (including confusion
between regulated and non-regulated services) and the services provided by the utility at rates to be
determined by the Commission.
Based on all the submissions provided, the Commission determines that the code of conduct principles
contained in the staff position paper should be modified as follows:
i) The regulated company will not provide to the NRB any market-sensitive or confidentialinformation that would inhibit a competitive energy services market from functioning. Ifcustomers agree to a release of customer information to the NRB, it should be provided to othermarket participants under the same terms and conditions and for the same price. Should anindividual customer make a specific request to have information released to a particular third party,it will be released to that party only. The utility will be able to recover from the customer the costsassociated with the provision of this information.
![Page 631: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/631.jpg)
27
ii) No regulated company personnel will state or imply that favoured treatment will be available tocustomers of the company as a result of using any service of an NRB. In addition, no regulatedcompany personnel will condone or acquiesce in any other person stating or implying that favouredtreatment will be available to customers of the company as a result of using any service of an NRB.
iii) No regulated company personnel will preferentially direct customers seeking competitively offeredservices to an NRB. If a customer, or potential customer, requests from the regulated companyinformation about products or services offered by an NRB or its competitors in downstreammarkets, the regulated company may provide such information, including a directory of retailers ofthe product or service, but shall not promote any specific retailer in preference to any other retailer.
iv) The regulated company will formally advise all employees of expected conduct related to theseprinciples and it will undertake to perform periodic audits of the relationships to ensure compliancewith these principles. These audits will be performed no less than once a calendar year and filedwith the Commission.
v) Complaints by non-affiliated parties about the application of these principles, or any alleged breachthereof, will be brought to the immediate attention of the senior management of the regulatedcompany and subsequently a report of the complaints, and action taken, will be filed with theCommission. The report will be filed with the Commission within one month of the complaintbeing made.
vi) The financing of the utility and NRB will be accounted for entirely separately with the financingcosts reflecting the risk profile of each entity. No cross-guarantees or any form of financialassistance whatsoever should be provided directly or indirectly by a utility to its NRB withoutapproval of the Commission.
vii) Use of the utility name by a related-NRB will require approval by the Commission to ensure thatits use will not interfere with the Commission's ability to protect ratepayers.
In those cases where retail customers have direct market access to the commodity, the utility's code of
conduct will also include the following provision.
viii) The regulated company will treat all requests for distribution system access for the purpose ofdirect commodity marketing equitably and according to the requirements approved for directcommodity marketing in British Columbia.
5 . 4 Other Issues
At this time, the Commission does not intend to address the issue of whether the commodity function
should be removed from the utility. Nothing contained in this paper should be interpreted to imply that the
commodity function should be removed.
With respect to the request by MCABC to nullify the 1988 agreement between Inland Natural Gas and its
successors and MCABC, regarding appliance sales, the Commission will pursue this matter separately
from this policy paper.
![Page 632: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/632.jpg)
APPENDIX 1Page 1 of 1
List of Initial Responses to Commission Staff Paper
1. Association for the Advancement of Sustainable Energy Policy2. BC Gas Utility Ltd.3. British Columbia Hydro and Power Authority4. British Columbia Public Interest Advocacy Centre5. Brian Donnelly6. Building Owners and Managers Association7.. City of New Westminster8. Consulting Engineers of British Columbia9. Enron Capital and Trade Resources Canada Corp.10. Heating, Ventilating and Cooling Association of B.C.11. International Brotherhood of Electrical Workers - Local 21312. Kanelk Transmission Company Limited13. Mechanical Contractors Association of B.C.14. Northwest Pacific Energy Marketing Inc.15. Novagas Clearinghouse Ltd.16. Pacific Northern Gas Ltd.17. Pan Alberta Gas18. Radian Mechanical Inc.19. Residential Hot Water Heating Association of B.C.20. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the U.S. and Canada, Local Union 17021. West Kootenay Power Ltd.22. Westcoast Energy23. Westcoast Seismic Protections Co. Ltd.24. Willis Energy Service
List of Reply Comments to Initial Responses
1. BC Gas Utility Ltd.2. British Columbia Hydro and Power Authority3. British Columbia Public Interest Advocacy Centre4. Enron Capital and Trade Resources Canada Corp.5. Heating, Ventilating and Cooling Association of B.C.6. West Kootenay Power Ltd.
![Page 633: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/633.jpg)
FortisBC Energy Inc, General Terms and ConditionsSection 12A
Order No.: G-28-11 Issued By: Diane Roy, Director, Regulatory Affairs
Effective Date: March 1, 2011
BCUC Secretary: Original signed by E.M. Hamilton Original Page 12A-1
12A. Alternative Energy Extensions
12A.1 System Expansion - FortisBC Energy will make extensions to the FortisBC EnergySystem using technology that produces alternative energy, in accordance with the provisions of this section. The alternative energy extensions include geo-exchange, solar-thermal and district energy systems which are described below:
Geo-exchange systems, also referred to as geo-thermal systems, earth exchange systems or ground and water source heat pumps, utilize the latent heat energy contained in near surface layers of the earth, ground water and surface water. A subsurface piping system contains a liquid that absorbs heat from the surrounding material and delivers it to a central heat exchanger. High efficiency heat pumps convert this latent energy into hot water or steam contained in a separate piping system that can then deliver the heat energy to where it is required for space heating and hot water uses. Centralized equipment is usually contained within specifically designed mechanical room that serves the entire development. The heat exchanger is reversed to provide space cooling, removing heat from the building(s) and returning it to the subsurface substrate.
Solar-thermal water heating systems, also called solar hybrid water heating systems, are a system of solar collection tubes and piping capture heat energy from the suns rays and deliver it to a central heat exchanger, where it is converted to domestic hot water anddistributed in a manner similar to that described above for geo-exchange systems. The solar collection tubes are located outside the building or buildings, typically on the roof, while centralized equipment is again housed in a specifically designed mechanical room.
District energy systems employ a range of energy technologies and sources to deliver piped heating (steam or hot water) and/or cooling (cool water) to multiple buildings and customers within a neighbourhood from a central plant location or locations.
12A.2 Ownership - All alternative energy extensions will remain the property of FortisBC Energy.
12A.3 Cost of Service Model - All applications by Customers for service using an alternative energy extension will be subject to review using a cost of service model. The cost of service model will determine the rate that a customer will pay for the service associated with the alternative energy extension. Service will be provided under the terms and conditions of the Service Agreement between FortisBC Energy and the Customer.
![Page 634: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/634.jpg)
FortisBC Energy Inc, General Terms and ConditionsSection 12A
Order No.: G-28-11 Issued By: Diane Roy, Director, Regulatory Affairs
Effective Date: March 1, 2011
BCUC Secretary: Original signed by E.M. Hamilton Original Page 12A-2
12A.4 Projected Energy Consumption/Number of Customers - The projected energy consumption and number of customers to be used in the cost of service model will be determined by FortisBC Energy by
(a) estimating the number of Customers to be served by the alternative energy extension;
(b) if applicable, establishing consumption estimates for each Customer; and
(c) projecting when the Customer will be connected to the alternative energy extension.
If applicable, the projection will take into consideration the estimated number and type of thermal appliances used and the effect variations in weather conditions throughout the applicable Service Area have on consumption. All Customers expected to connect to the alternative energy extension will be considered in the cost of service model.
12A.5 Costs - The total costs to be used in the cost of service model include, without limitation
(a) the full labour, material, and other costs necessary to serve the new Customersless any contributions in aid of construction by the Customers or third parties, grants, tax credits, or non-financial factors offsetting the full costs that are deemed to be acceptable by the British Columbia Utilities Commission;
(b) the appropriate allocation of FortisBC Energy's overheads associated with the construction of the alternative energy extension;
(c) depreciation expense related to the capital equipment associated with the alternative energy extension; and
(d) the incremental operating and maintenance expenses necessary to serve the Customers.
In addition to the costs identified, the cost of service model will include applicable taxes and the appropriate return on investment as approved by the British Columbia Utilities Commission.
![Page 635: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/635.jpg)
.. .
ee
-
e--
-,
.04/08/97 08: 56 'a604 680 1102 ia 002/013Bcue
2500 . FOUR BENT ALL CENTRE105S DUNSMUIR STREETP.o. BOX 49190VANCOUV. B.C.CAADV7 IS8
Boughton Peterson Yang AndersonBAIS &. SQUC:ITRSTlOl- MAl.A .
B.C. UTILITIES COMMISSION
RECEIVED & ACKNOWLmGEO
MA i 2 1991
TE (60) 681-69fi (60) 683-5317
laers~bpya.comll~l'.Y ..i-N Oi: Gordon A. Fulton
45026.6_ fOR :. i nr ¡: "1:,,-,,, ni:~"ONSE..._ FOR RESOURCE ROOM......INFO. TO BE FILEO...___
fl NO:
March 10, 1997
B.C. Utilties Commsion6th Floor900 Howe StreetVancouver. B.C.V6Z 2N3
Attntion: Ms. Deborah Emes. Mana2er. Stratec Serce
Dea Ms. Emes:
Re: Re Maets Down of the Met
You have requted our opinon on the Comiion's jursdicton with rest to partciption by
a public utility or an affia non.relate busines ("NRft) in th unrgute reta maretsdownstr of th mete ("RMM"). Mote spifcaly, you have asked whether the Commsioncan preven a pUblic utiity or an NR from pacipatg in RMM. You have also asked whethrthe Commsion ca preven a l'ublic utiity frm providi service to an NR or whether thCommion is limite to looki at cross-chaes. Finaly, you have reested our opinion as towhether th ratepayers or sharold own a public utlit's na.
Badgrouru
Th Commission is consid th ise of paipaon by public utiiti an NRs in RMM.The Commission is al consideri gudelins or term and condtins if public utilities or NRsparticipate in RMM.
The cru of tb issue is whether public uù1cs or NRs shold be aUowed to provide servce andprodts "downwsir" of the mete. Histncay. puli utlities foc on make up-strof th meter. naly prodion an delivery of gas or elecity. Sece an proucts downM
str of the mete ax provi by contrs an businse in a comptitive mat.pla.Pubüc utiities have not tronally be involved in RMM.
Th Commion st prepar an distute a position papr enttled ftReta MaetsDowntr of th Utity Mete". da Deber 4, 1996 (tb "Sta Paper") an intedcommeiu from interete panies. A nube of paripam mae sumiions ~ reply
VANCOUV . HONG KONG . TAI . SHGH
.. \
![Page 636: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/636.jpg)
..
--
ee
\ .
.04/08/97 08: 57 ti604 660 1102 Bcue ia 003/013
Boton Peton Yan AI------B.C. Utilities Commsion Page 2
submissions to the COnussion. Some rase concern about the Commion's jursdction toregulate partcipation by public utilities and NRs in RMDM.
In arrving at our opinon. we have considered the Uiiliies Commssion Ace, S.B.C. 1980. c. 60and amendments thereto (the "Act"), certn texts on public utility regulation, and th relevantcaslaw. In addition, we have considred th submissions made by varous pares in respons to
the Staff Paper.
Summ of Optnion
The followin is a summa of our opinon:
1. The Commsion doe not have the juricton to diecy regulate an NR uness th NRBis itslf a public utility. a common caer, or a common processor.
2. The Commsion has th jurcton to relate th relato.ihip beween a public utlity andan affiat NR to the extent that the relationhip afects raEmavers. For exaple, theCommion ha the juridicton to ense th an NR is not "subsided" by a public utilityto the detrent of rateyers.
The Commion doe not, however, have th jursdcnon to regulat th relationshipbetwee a public utilty and an NR so as to ene th relationsp doe not afft th
comptive retail maket down-str of th mete. The Commission's juriicton is
limte to consideration of th effects of th relatons on raayers.
3.
4. The Commion ha th juricton to reguate RMM activities by a pulic utiity i butonly to th extent tht such activities affect rateyer. Simrly, th Commsion ha thejursdiction to prohibit a public utity from parcipati in RMM if prohiòition is the onlyreonale an effective mea by which th Commion ca mitigate or aleviare anynegave effts on rateayers.
S. Rapayer do no own a public utility's corrate nae. Th corprate nae is goodwilwhich is own by the compan. Th shaholde have a right to sha in dl assets of acompany, inudg th coiprate na, if the compay is dilved.
VANCOUV . HONG ICNG . TAJ . SHANGH
![Page 637: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/637.jpg)
..
--
ee.
.04/08/91 08:51 5'604 660 1102 ncue fi004/013
Boughn Peterson Yan Aion.. ....~"..".B.C. Uti Commion Page 3
Discusion:
The Commsion's Juridictuin - Legal Priciples
The questions on which we were aske to express an opiion ar questions regarding theCommion's jursdiction an, as such, it is helpful to sum some of the key priciplesdescribed in the rent B.C. Cour of Appeal decision in British Coluia Hydro & PowerAuthoriiy v. British Columbia (Utilities Commission) (1996), 20 B.C.L.R. (3d) 106 (C.A.) (the"B.C. Hydro Decision"):
1. The stang point for an anysis of the Commission's jurisiction is the Act;
2. The Act is detailed legislaon which amply delite the Commsion's juriiction by
express term. Thre is no need to imply teon; an
3. The speifc proviions of th Act conferrng judiction on th Commission should be
exaed in light of th U,mpse of the Act, th rean for.th Commssion's exis. the
are of expese of th commssioners, an the na of the problem before thCommission. Th purse of the Act an the rean for th Commission's exitenc isdefied by lookig at the historical purose of th Act an rean for the Commision'sexitenc.
Commsin's JuritUn tI Diectl., Regue NRBs
Th Comssion clealy ha jurdiction over a "public utility". which is define in s. i of the Actto me:
~ ...a persn. .or hi lessee, tIstc, reiver or liquidator, who owns or opera in thePrvin, equipmen or facilties for
(a) th productn, generation, storage, trssn, sae, delivery or fuhiof electity, na gas, ste or any oth agen for the prodtion of
tight, het, cold or power to or for ui public or a coipraüon forcompenstion, or
(b) th conveyan or ttsmission of inormtion, mesages or communcationsby guded or ungded elecmagnti waves, inludin syste of cale,
microwave. optica fire or raocmmuncations wher that service isoffer to di public for compensation,
but upublic uti" doe not inlud
(c) a muncipaity or regiona distrt in repe of seices fumi by thmuncq, or regional distr widi its own boes.
(d) a persn not .otherwise a public utit wh. f\hes the servce orcommodty only to hielf, hi emloyee or tenats, where the service orcommodit is not resold to or us by oth,
V ANCOUV . HONG KONG . TAI . SHAGH
![Page 638: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/638.jpg)
..
-
ee
.04/08/97 08: 57 ~00S/0135'804 880 1102 Bcue
Bon Peon Yan Aneron_...---B.C. Utities Conuion Page 4
(e) a person not othis a public utlity who is engaged in th petroleuminust or in the wellhd prouction of oil, nanial gas or othr naalpeoleum substa, or
(0 a person not otherwis a public utity who is engaged in the production of
a geotheral resour, as defi in the Geotherml Resources Act. "
If an NR is itself a public utilty as defi in the Act. the Commssion bas jurdiction over theNRB. The Commission alo ha jurisiction over common procesors and caers uner Part 5of the Act. Cenain provisions of th Act deal with muncipalities and regiona distrcts.
Nowhere does th Act speificaly confer on the Commssion the jurction to regulae NRBs orany othr person, which is not itslf a public utiity. In OUT opinion, th Commission doe not haveme jurisdiction to diry regulate NR th are not tblves pulic utities, common caers,or common procson.
Commission's Jurdictin to Regulae the Relinship Betweeu a Publi Utiit an an NRB
Our opinon tht the Commsion does not have th jursdicon to directly regulate an NRB this not itslf a public utity doe not prelud th Commssion's jurisiction to regulate i:
relauonship beteen a public utiity an an NR.
Boron submits tht the Commsion ha the jursdon to regulate al asts of th relationshipbetween a public utility an an NR. In su. Ei submits the basis for th juriicton is
th genera supelVisory powers undr s. 28 of the Act an the "conttaift relationsip betwee
a public utiity an an NRB. Boon is al cleay of th view tht the Commion has thejuriiction to reguate the relationsmp to prolC competition in RMM.
BC Gas agrees me Couiion ba the juriction to regulate th reationsp beeen a publicutiity an an afiate NR, but only in so fa as is ncsa to enur rateayers ar notnegatvely afecte by th relaons. In other word, th Commsion ba th juricton toenur th is no "cross-subsiiztiontl. However, BC Gas submits th Commision does not bave
th jurcton to preent th flow of bets from th public utity to th NR, provide this no crss-subsiiztion. In B.C. Gas' view, competion is a mattr with th jurdiction of
othr regutory agencies.
B.C. Hydro ta the view tht s. 28 is not so broad a provision as to confer blat authrity onthe .Commision to reat all utiity activiti. B.C. Hydr cite the Cour of Appel decision in
B.C. Hydro. supra. B.C. Hydr is of th view th Commsion does not have th juridiction to
reulate competion in RMM.
Other inte par, such as th inden heag, coolin, gas and ventii(i1'g contrtorsar clealy of th view th Common ha the judicton to reguat the relationsp beccnNRs an public utiliti to en thre is no cross-subsidition and unai competitive
advantages.
VANCOUVR. . HONG KONG . TAI . SHGH
![Page 639: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/639.jpg)
ee
-
ee
. 04/08/97 08: 58 ftS04 660 1102 BcueBoghton Pete Yq Ann_to""---
ia 006/013
B.C. Uti Commion Page 5
Section 28 of th Act provides:
"(1) Th commsion ha general supervion of al public utilities and may maorders abot equipment, applian, saety device, cxtenson of work or
syste, Íilin of rate schedules, report an othr matters it considers
ne or advisable for the safety, convenenc or service of the public orfor th proper cain Out of th Act or of a contct, chr or fncmseinvolvin use of public propert or ri¡h.
(2) Subject to. th Act, th commsion may mae regutins requir a public utiityto condt its oprations in a way th doe not iinnp~ssarily interfere with, or causnnnM.llllJry dae or innveneoc to, the pulic"
Section 28 is ofren referd to as th Commssion's genera suprvisry power over public utties.It is worded rater broy but. in light of th B. C. Hydro decision. it mus be rea in th contxtof the Act as a whole an the hitorical puipse of the Commion.
At P 111 of th B. C. Hydro Deision, th Cou of Appel šu th purse of thCommision:
"In ths light th Uties Act is a currnt exple of th mc adopted ùi NortAmri Ílly in th Unite Sta. tg açhicve a balanc in the DubHc interestbetween monoooly. where monooolv is acte as nesa. an protetion to ui
conser provied bv comDctition. Th grt of monoly thug certficaon of
public convenen an nesity acmpaned by th conevc burn on thmonopoly of providig servce at approved ra to all with th ar from which
comoetiöon was excluded." (emphais add)
In itS submion, &rn refer to th Coun of appe deision in B.C. Ga Utili Ltd. v. B.C.Hydro er åi. (May 3t. 1995) CA011981 (B.C.C.A.) (-th BC Ga Deision"). In tht deision,
th Commio amend th 1agc of an agent beee B.C. Ga an B.C. Hydr to giveeffec to th intent of th panes in light of ce ched cir. The Coun cotson a nu of ocions about th "broa power" of th Commion to re¡u B.C. Ga anB.C. Hydro.
At page 10 of th BC Ga Deision. th Cour of Ap stre:
"Th reguro power of lh Commsion in th ma is neessaily bro inolder tbt it be able to disrge its du to eo tht th moiily unsuner its suon oprate acrdg to th be ii of th coDS pub.un es1i priples of utity reon ..
Th "mattrs" tefme to by th Cour of Ap rela to seti 30, 31, 36. 641) an (2),65(1), 70(1) an (2). 103(1) an li4(l). Tb Cour of Appe in th Be Ga Decision wasspfiçay de with th Commsion's jution to rc cx contts beeen puli
VANCOUVE . HONG KONG . TAI . SHGH
![Page 640: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/640.jpg)
ee
--
ee
"
0~/08/97 08:58 'a604. 660 1102 ia 007/013Beue
Boghn Pete Yan Andon-...-..."-...,B.C. Utilties Commision Page 6
utilties where th contrcts diretly affecte the curent raes paid by ratepayers. The Be GaDecision did not specifcally dea wim the Commission's general supervsory powers under s. 28of the Act. Rathr, it dealt with numerous oth provisions of the Act. Finaly, the BC HydroDecision is more recent and, in our view i provides a naower ínerretation of the Commission'sgeneral jurdiction over pUblic utilities.
In both decisions, however, the Cour of Appel refers to "consers" or the "consumng public".In our opinion, "consumers" and th "consing public" mea consumers of the products and
services of a public utilty. More speifcally, consmers ar raayers. It follows th purposeof the Act and the Commission is to balance th right of th monopoly to reeive fair compenstionwith the nee to proteci ratepayers from the abuse of a public utiity's monopoly powers.
As a result and berig in mind the purse of the Commission, it is also our opinion tht section28 confers upon th Commission the jurdicton to regulate th relationsp between a public utiltyan an NR to th extent the relationship impacts rapayer. For examle, if th NRB uses theassets, syst or service of the public utility, rateayers ar effectively subsiding the NR and,as such, the Commission has th jurisdiction to regulate th cross-susidi%tion. It is furter our
opiiuon tht th Commion ba the juriiction to ens th the NRB's activities do not impose
additiona busins or finacia ri on the public utity.
It is importnt to emphaiz tht the Commion's junsdiction to regulate th relationship betweena public utity an an NR arses beuse the public utiit an its ratepayers are affecd by therelationsp. 11 Conuission, as a relt, ha th jursdcton over th public utity to regulateits activities to miimize or elite th effect on rateayer. Th Commision doc not, however,have th jurction to directly regu th NRB beus the relatonsp affects rateayers (unlessthe NRB is a public utiity). Of cours, the indect result is tht th Commission affects astsof me NRB's busines an operations by regulati di relationship betwee it and the publicuulity .
Competin ui RMM
The isse of protecting or fosterg comptition in unrguated makets is a more difficult ise.
Enn inbide a nuer of authonties in suport of its submision. Mos of th autorities arAmca sta tnòun decisions tht adopt FERC Order 497, whi is an Order regulti threlations betWee inrs pipelin an thir maketi afiate. In ea of the Americauthoriti, th Cour or trbun consider, amongt other fatol's, £he effect of the pipeline-affiiarelaonsp on othr non-af ma.We wis to ma two commen abot th America authoritis cite by Enn. First, neithFERC Order 497 nor any of the cour or trbun decisons dea wim seice or productsdown of the metr. Seond, America tribunals operate witb a different legilative anlegal frwork th the BCUC. In Briti Columbia, the Commsion must exerise its powers
under th Act with regar to th priiples set out in th BC Hydr Decison.
VANCOUV . HONG KONG . TAI . SHGH
![Page 641: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/641.jpg)
ee
-
ee
.04/08/97 08: 58 !r604 880 1102 Bcue ia 008/013
Boughron Petersn Yan Ann_..~..---B.C. Utiities Commion Pae 7
Therefore. it is our view tht the American aumoriues cite by Enn are not determintive of thissue.
Enn also inluded a deision of the Manitoba Public Utilties Boar. Ordr No. 110196, dateNovember 4, 1996. In tht case, the Board considered guidelines for acceptable conduct betweenCentr Gas Mantoba Inc. an irs affliated companes in rest of, amongst oth thgs. markets
downtram of the metr. At p. 21 of the Decision, th Boar ordred Cent Gas to form aworkg commtt to consider a code of conduct. stating:
"Th purse of this code of conduct should be to ense tht Cent trars itsafliate as it would any thir party in order to allow for fair compensation for all
parcipan in the competitive elements of the nawra1 gas maret or relate
servce. .
At p. 23 of the Decision, the Board ordered the Code of Conduct beteen th utiity an its
affliates to include th following:
-Th sha servce mus not reslt in undue disadvane"to any competitors in themart. "
The Manitoba Puli Utiity Bord was obviously of the view it ha th juricton to consider ùi
effec of me relaonship between a public utilty an its atfuiate on umgued. competitivemarkets. Unforttely. the Boar did not specificaly state in its deision whic provision of itsAct confer su jursdiction on the Board.
We have reviewed th Mmiroba Public Utilities ACI. R.S.M- 1987, c. P280. as amend. Threis no provision of the Act th speifically confers juriiction on th Bo to reguarc or coiderthe effec of public utities or NRBs on compeutive ma. Setion 74 of th Act is simi to
s. 28 of th B.C. Ac. We reviewed caselaw in whic s. 74 was considere. None of th judciadeisions wer belpM to us in arriving at ou preset opinion. Nor were we able to find a
. discsion of ths iss in the authorities we reviewed. In Bonbrighl et al (1993) at 5S3. th
authors compa "regulation" an anu-lNst laws. In so doin, they se to difernt ben
the two form of reguon, stng th the "aims and motives" ar differnt. Finlly, we werealso unable to f'in a B.C. ca tht speifically dealt with th isse.
In our viw, an in light of th B.C. Hydr Decision. th quon as to tl Commssion'sjuriction to reat an-competitive practises in DOn-regute maet reui tb followianysis: .
Is there a spic statury provision in the Act whi confers juron on theCommsion to regula an-cmpeitivc practi in non-ie ma? Inanwer th question, it is importnt to kee in mi th purose of public utiitytribunal.
VANCOUVE. HONG KONG. TAI . SHGH
![Page 642: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/642.jpg)
ee
-
ee
04/08/97 08; 59 US04 860 1102 BCUC f4 009/013
Bough Peson Yan Ann--""---B.C. Utiities Commion Page 8
We have concludd, afr consideri the purse of the Commion and the Act, tht thCommission's general survisory powers undr s. 28 do not confer jwisdiction on Ule Commionto regulate an-competitive practies by a public utity in RMM.
The only other provision of th Act tht might be applicable is s. 65 which srates tht a publicutility caot dema a rate for a service fu in th Prvinc tht is "unuly discriminatory" .
Again, s. 65 mus be interprete in light of tl purose of the Commission and th Act. In ourview, s. 6S confers on th Commssion the jurisdction to ensure tht a public utility doe notunduly disrimite as between rapayers so as to give an undly preferential rate to a speificbusiness, person, or ra class.
As was th ca with our consideraton of th Commion's jurdiction to regulate affliate ofpublic utilities, we cat find a speific provision of the Act tht confers on me Commion thjurisdiction to regulate anti-competitive behaviour by public utities or NRs in non-regulateRMM.
In our view, th histonca puipose of public utiity trbuna was to protet th ratepayer from thmaket power of th monopoly public utiity by sett price and conditions of seice. In fact,an as note in th B. C. Hydro Decision an th Staff Paper, monopolies were ofren acepte as
necessa. The inoduction of comptition in area such as gas mareting an sales is a rentdevelopment. Competition in production is also a rent development, partculaly electrity
production. Th Commision. lik many public utiity trbun, is grppling with ways of fostenngfair competition in makets tht Wci historiy considere pa of a "natural" monopoly, whieat the sa ti proteg th inre of rateayers. As note in th Staff Papr, th interet by
some public utties in RMM is itself a rent development.
In our view. RMM an comption in those in wer not hiorical conc of public utity
trbunas. 1ñefore, it is ou opinion th th Commion doe not have the jurisdiction underthe Act to regulate, or conside, the efts of publi utiity or NR l'arcipation on un-reguteRMM.
In arrving at our opinon, we ackowledge th it difers from th America aurhrities cite by
EnoD, an the Mantoba Public Utilities Board Decsion. Ou opinon also confct with th 1993B.C. Gas Furn Repai Plan Deision. However, we would note th following:
(a) For th rens cite above, the Amri autriti ar not determtive of thissu;
(b) There was no diion in th B.C. Ga Furce Reai Pla Deision about thsour of th Commion's jurction 10 regu or conside the effects of publicutity or NR parciptin in RMM. Fur, th B. C. Hydro Deion was~lead afte the B.C. Ga Fiiee Repai Plan Deision;
Th Matoa Pulic Utiiti Board did not consider th B. C. Hydro Deision in its
1996 Cenr Deision; aJ(c)
V ANCOUV . KONG KONG . TAI . SHGHAI
![Page 643: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/643.jpg)
ee
-
ee
. 04/08/97 08:59 U604 660 1102 Beue ia 010/013
Bon Peærson Yan Anrsn....----B.C. Utiit Commsion Page 9
(d) Ou opinon alo seem to be consistent with the submiions mad by parcipantswho parcipate in BeUe proceings on a rela basis.
Commsion's Juriditin to Regulae RMM
As note above, the Commsion ha jurisdicuon over public utilities, as defied in s. 1 of th Act.The extern of th Commssion's juriction is detrmin by the Act. be in min th purose
of the Act an public utilty trbun in genera.
In the Mantoba Public Utilties Boa Decision, Centr Ga referr to the decision of thManitoba Cour of Appeal in Grea Winnipeg Cablevision Limed v. Th Public Uiilis Board
an Mantoba Telephone System. (1979) 2 WW 822 (Man C.A.). In tht case, th Courtconsidere whedir the Mantoba Public Utities Board had the jurcuon to reguate the amountof rent chaged for coaxal cables by public utilities. Th Coun of Appe state at 87:
"It is common groun tht MTS is a public uulity within tb defition, with repet
to its telephone an telegrph seices.. .Jt does not necessary follow that eveiyngdone bv the MTS is suiec to th ~gulatorv suoervon of the boar. It is possiblefor an underg to be a public utir. as defme in th Act for some purses andnot for others." (emphais ad)
Th Mantoba Coun of Ap went on to consider t: speific provisions of th Act and concludth Act did not give th Boar the juction to ieguar coax cables.
Th deision is import for two reons. Fir. the eoun conclud a tnòun doc not have
jurdiction over every a pulic utty doc simly beaus it is a public utity as defi byth Act. Secnd. the Coun will look to th relevant sta to dere th scpe of th trun's
jurisdictin over a public utiity. In our view. the Matoba Coun of Ap deision is consisntwith th priiples en in tb B. C- Hydro Deision
Varous proviions of th Act give th Comiision juricton to rete sece. opeons.
prop, rates or syste of 8. public utility. "Seicell is defi in s. 1 of th Act to inlud:
"th use an acommodn provide. an a prot or coodty fushed, bya public utity an al in th plan, eqme, apartu. applia,prope an facilties emloyed by or in conntion with a public ut inprovidi servce or in fu a prouc or coty for th purse in whithe l'ublic utiity is enaged an for the us an acmmodtion of the public. ø
Th dcfintin of "seic-, "options". "propeny". an "syst- could be inred broadyto inlude RMM activities. However, th varou provisoo of the Ac mu be inrete inlight of th puse of the Conussion. naly the lroteon of th rateyer agains thmonopoly power of th utiity. Fu. the innton of th LegiIa whe th Act was enais imrt. As note above, it se unely di Legistue reonaly contmpla thparcipaon of public utlities in RMM when the Act cae ino foic in 1980. In ou opinon,
VANCOUVR. HONG KONG. TAII. SHAGlW
![Page 644: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/644.jpg)
ee
-
ee
.04/08/97 09:00 'aS04 680 1102 Bcue ia 011/013
Boughn Petn Yan Aison...u,,_---B.C. Utiities Comsion Page 10
it is far more likely the Legislatue had in mind the trtiona service, operations, propert ansystems of a public utiity, naely production an delivery of natu gas an electrcity. TIs viewis support by th dcfintion of public utilty in s. 1 which clealy focus on prodtion anddelivery. In lighi of the Cour of Appe deision in B. C. Hydro supra., we are of the view thCourt would probably apply a naow interetation to thes term.
Regardless, an for th reons state above, we are of th view th Commssion has the
jursdiction un s. 28 of the Act to ensure a pulic utility's parcipation in RMM does notaffect ratepayers. We ar also of th view th Commion could prohiòit a public utity fromparicipating in RMM ü the public utity's parcipation in RMM affec ratepayers andprohibition was th oñI reonable method to mitigate or alleviate the negative imacts onratepayers.
Is the Corporate NOJ of a Pulic Utili Owned by the Shteholdrr or the Riepayerr?
It se to be a setted priiple of law th th nae of a business form pan of the goowil of
the business. Gowil. in turn, is an asset of th busin whi is ownd by th ownrs of thebusiness. (Bugde v. Voisey (1955), 2 D.L.R. (2d) 427 (Nfld. T.D.) at 433). In the ca of a
coxporaüon, th shaeholders own a right to sh in th asts of the corpration upon disolution.
Most utiities with the juriction of th Commsion ar companes inoipratc pursuat to thCompanies Aci R.S.B.C. 1979 c. 59 as amened. Secon 2i(1) of the Companes Act spificaystate tht a coany has the ful lega cacity of a na pen. A company. therfore, hathe riht to own asts, inludin goowi an trdemaks. B.C. Hydro is inipora uner theHydro an Power Authority Act R.S.B.C. 1979 c. 188 as amend. Secon 12(e) an (g) of thtAct gives B.C. Hydo th right to own an disse of prort including, amongst otr ths,
rrademks.
In our opiIon, regute pUblic utiites in B.C. have th right to own goowil an their corpratenae unles thre is a speific legisative rue to th contm. Furcrore, the sholders ofthe public utiit own a sh of those assets, subjec to legition to th coni. We considereth provisions of th Compan Acr. th Utiities Commsion Act, and the B. C. Hydro an PowerAurity Act. Th ar no provisions in any of the th sra tht speifcay stte tht apublic utlity doe DOt own its goo'Yil an corprate na, nor ar th any provisions th affectth priiple th sJwholders own a right to sha in th goowil of a pulic utity upon
disoluton.
Thre is also some issu as to whethr th Commion ca reguat how a publi uti us itscorpora or busin nae. West Kotey Power refe to two deisions in its submision. Thfirst is th deion of th Supreme Cour of th State of Minta in Mtngasco v. MinesotaPublic Utilitis Commion (lun 13, 199). Th decision is al refer to by Ceoi Ga in thedeision of th Mato Pulic Utiiti Tnbu. In Minnegasco. the Cour held tht goowUl
is an ast of a utity which is not paid for by rateyen. Thfore, in th ca, th Connconcludd th tnòuna did not have th jurtion to im revenu to a public utity jf an
VANCOUV . HONG KONG . TAIEI. SHANGH
![Page 645: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/645.jpg)
..
e..
... 04/08/97 09: 00 tt604 660 1102 ia 0121013Beve
BoghlOn Peon Yan Ann_.""---B.C. Utiliti Commion Page 11
affilte did not pay to us the company nae. Th secnd decision referrd to by Wes KootenayPower is th deision of the Californ Public Utilties Commission in Southern Edison Co.,
(1988), Cal. PUC. In tht case th Public Utiities Commssion concluded that goowil is not anasset which is paid for by the rateayers. Neither the Minngasco nor th Southern Edison Co.decision conclude tht goodwil is not propert of a public utilty.
The Matoba Public Utiities Boar concluded tht it did in fat have junsdction over thcorporate or buins na of a public utiity. However, the Boa went on to decide that it wouldnot rect th us of the public utity's na by affliate. In so deding, th Board considere
statutory provisions which ar simlar to setions 28 an 59 of th Utilies Commssion ACE.
Section 59 state:
59. (1) Excet for a disposition of its propert in th ordii coure ofbusin, a public utiity shal not, withut fit obtain thecommion's approval, dispose of or encumber th whole or par ofits prope. frhises, lices, peits, concessions, pnvileges or
rihts, or by any mea. direct or indit. merge. amlgamte orconslida in whole or in par its propert. frhi. lice.
perm, concions, privileges or ngh with those of anothrperson._ (2) Th commion may give its approval uner th seon subjec tocondtions an reiren considere nesa or deirale in thepublic interest. (emphais added)
ee
Section 59 confers upn th commion th juiition to contrl dipositions an encbraesof propert of a pulic utity. In our opinon. the propert refer to in s. 59 inudes goowilan any trde mak rits in a coi:rate nae. This is consisnt with th Manitoba Public
Utilities Tribuna decision.
Th te "dispse" is defi in the Interpreation Act. s. 29. as follows:
"dispose" me to trer by any metod an includes assign, give. sell, grt,chge, convey. beueth, deVÍ. leae, dives, teea an agr to do any of thesth;
Th defition suggets th more th a mer lice of the us of pro is need. Ther mustbe an ac "trfer" of a propri inret.
Th defition of _dill in rh Black's Law Dictional) is:
"Dis of To a1 or di owners of proper;. . .to pass into thecontl of somQOne els; to aleie, relish, par with or get nd.
of; to put out of th way; to fi with; to baai away.
Again. th defition su a trfer of a pronewy inret.VANC:OUV . HONG KONG . TAIEI . SHGH
![Page 646: 646 Pages B-1 · 2011. 6. 10. · NGV, and AES initiatives deliver tangible benefits to existing and potential customers. The customers of the FEU, which will continue to be primarily](https://reader033.vdocuments.us/reader033/viewer/2022052018/603125228968f3375d11e381/html5/thumbnails/646.jpg)
ee
-
ee
..
..-
- 04/08/91 09: 00 'f604 660 1102 Bcue ~ 013/013
Boghton Peten Yan Anrson_.oa---B.C. Utities Common Page 12
The re "encumber" is not defined in Blac's Law Dictona. Th caelaw we reviewed inwhich the (em ha been considered was not helpfu to us in rehig our opinon.
"Encumbrances" against prope inlude chges, liens, an mongages. It is questionable. in ourview. whefuer licencs are encbra again propert. A license is only a right to us propertfor a specific purpose in rerom for a licens fee and may be revoked at any tie. A breach of alicense subjects th par in breh to dages.
It is our view tht s. 59 of the Act is innded to prohibit a public utility from doing anythng withits propert, inluding goodwil, tht might put th prop outside of the jurisdiction of theCommission, or tht migh inerere with th Commission's abilty to protet ratepayers. Tb,a public utilty caot sell or asign its nae without Commission approval. A public utity
probably can, however, licenC it nae without Commsion approva.
Th then is our opinion. If we ca amplif mattr; in any way, plea feel free to contct us.
You very trly,
BOUGHTON PETEON YANG ANERON
kV\, . \
. .t' ~Go . FulWb fGAF/K/rw
L:lGAS0.6\NinJtt
VANCOuv . HONG KONG. TAIEI. SHAGH