DR 97-157
DR 97-175
Exeter and Hampton Electric Company, Inc./
Concord Electric Company, Inc.
Petitions to Provide Back-Up, Stand-by and Supplemental
Services
Order Rejecting Proposed Tariffs
O R D E R N O. 22,902
April 13, 1998
I. PROCEDURAL HISTORY
On August 4, 1997, Exeter & Hampton Electric Company
(Exeter & Hampton) filed with the New Hampshire Public Utilities
Commission (Commission) a proposed rate schedule "Back-up Service
Classification B" pursuant to RSA 378:1 and a request for a
Declaratory Ruling on Applicability, for which the Commission
opened docket number DR 97-157. On August 27, 1997, Concord
Electric Company (Concord Electric) filed a petition to offer a
new back-up service similar to the Exeter & Hampton petition, for
which the Commission opened docket number DR 97-175.
Under the respective tariffs, the proposed service
would be available to "generation facilities for station service
purposes, where customer provides capacity and energy sufficient
to meet Customer's needs . . . ." Exeter and Hampton and
Concord Electric (collectively the Unitil Companies) would
provide "for the delivery of energy and capacity, to be purchased
by the customer from a third party supplier. . . ." Initial
Memorandum of the Unitil Companies at 1. In its petitions, the
Unitil Companies also requested a declaratory ruling that the
proposed services will apply to Seabrook Station and Merrimack
Station and their campus loads. These loads are currently
located within the boundaries of the service territories of
Exeter and Hampton and Concord Electric, respectively but the
loads are served by Public Service Company of New Hampshire
(PSNH), the owner of Merrimack Station and the sister company of
the lead owner of Seabrook Station. Concord Electric also
provides service to SES Concord under a special service agreement
no longer in effect. Concord Electric seeks a determination that
the proposed tariff should apply to back-up, stand-by and
supplemental services supplied to SES Concord.
On September 2, 1997, the Commission issued Order No.
22,698 (September 2, 1997) suspending the proposed tariff of
Exeter & Hampton in DR 97-157 and the proposed tariff of Concord
Electric in DR 97-175, scheduling a prehearing conference for
September 17, 1997, and setting a deadline for intervention
requests.
On September 8, 1997, Concord Regional Solid
Waste/Resource Recovery Cooperative (Cooperative) filed a Motion
to Intervene in DR 97-175. All jurisdictional utilities were
made mandatory parties by Order No. 22,698. By Order No. 22,742
(September 29, 1997), the Commission granted the Cooperative's
Motion to Intervene and established a procedural schedule for
discovery and to consider memoranda of law from the parties. On
October 29, 1997, the Commission received legal memoranda from
Exeter and Hampton, Concord Electric and PSNH. On November 12,
1997, the Commission received reply memoranda from Exeter and
Hampton, Concord Electric and PSNH.
II. POSITIONS OF THE PARTIES AND STAFF
A. Exeter and Hampton/Concord Electric
The Unitil Companies argued that because the generation
facilities are located in their service territories they have the
right to provide service to the facilities, and the facilities
are obligated to take service from them under the proposed
tariffs. The Unitil Companies also argued that although PSNH has
provided station service to Merrimack Station and Seabrook
Station since their construction they have never been authorized
to provide that service by the Commission under RSA 374:22 and
374:26. Thus, the Unitil Companies contended that the Commission
should require the facilities to take the proposed services from
the respective franchised utility.
B. PSNH
PSNH argued that under both tariffs the respective
utilities would not own, operate or manage any plant or equipment
for the conveyance of electricity to the public and, therefore,
neither Company was acting as a New Hampshire public utility
under the tariffs. RSA 362:2. PSNH further argued that
franchise rights are not exclusive, as a matter of law, in New
Hampshire and that PSNH should be allowed to continue to provide
station service to these facilities under the public interest
standards of RSA 374:22 and 374:26 to the extent that authority
has not already been granted by the Commission.
III. COMMISSION ANALYSIS
The issues for our consideration are whether Seabrook
Station, Merrimack Station and SES Concord are required to take
service under the tariffs from respectively, Exeter and Hampton
and Concord Electric and, if so, whether the proposed tariffs are
just and reasonable pursuant to RSA 378:7. With respect to
Merrimack Station and Seabrook Station, we conclude that it would
not serve the public interest to require the generating stations
to take service from the Unitil Companies.
As recognized by both PSNH and the Unitil Companies,
service territories are not exclusive as a matter of law in New
Hampshire. Appeal of Public Service Company of New Hampshire,
141 N.H. 13 (1996). Whether more than one utility should be
allowed to provide service in a particular service territory or
to a particular customer in that service territory under
particular circumstances is a question of fact and policy for the
Commission's resolution. Id. In reaching its decision, the
Commission must also determine which alternative or alternatives
best serves the public interest or the public good. Id.,
(applying RSA 374:26).
Thus, in the case at hand we have examined what
facilities are in place to serve the load, what new facilities
would be required to serve the load and which utility presents
the rational and logical means to providing service, in light of
the investments that have been made and that are already in
place. See eg., Re Exeter and Hampton Electric Company/Hall
Farm Realty Trust, Order No. 22,663 (July 21, 1997); Re Exeter
and Hampton Electric Company/Kingston-Warren Corporation, Order
No. 22,697 (September 2, 1997).
In this case, the facilities being used to provide
back-up, stand-by and supplemental service to Seabrook and
Merrimack stations are the same facilities used for the
generation and transmission of energy when the plants are
operating. Thus, the rational and logical means of providing
these services, that avoids the construction of redundant
facilities, is the continued provision of these services under
the current arrangement.
We note that this case differs from other cases we have
addressed regarding the issue of franchise exclusivity because it
is the franchised utility requesting an order from the Commission
requiring a customer to take its service, rather than a customer
requesting service from a different utility. Moreover, it is
undisputed that neither Exeter & Hampton nor Concord Electric
owns or operates the necessary facilities to deliver the required
capacity and energy to Seabrook Station or Merrimack Station.
Thus, we do not accept the definition of "service" the Unitil
Companies would provide to customers subject to this tariff. The
Unitil Companies are, in effect, asking us to approve a charge to
a customer for nothing more than the customer's presence in its
service territory. We will not approve such a charge.
With regard to SES Concord, which does use Concord
Electric facilities to receive service, we cannot conclude that
the proposed back-up, stand-by and supplemental service tariff
would be just and reasonable. Initially, the tariff would
require SES Concord to take service for a minimum of three years.
Given the advent of competitive generation services, we find this
provision anti-competitive and, therefore, not just or
reasonable. We also question the requirement that SES Concord
purchase its own energy and capacity for transmission and
distribution to its facility when no other customer is required
or allowed such a choice under any other Unitil Company tariff.
See, RSA 378:10
With regard to the expired special contract under which
Concord Electric is providing service to SES Concord, the special
contract was in effect for one year while SES Concord was allowed
to determine whether it wanted back-up, stand-by and supplemental
service, or station service. The contract terminated in 1990 and
Concord was required by the Commission to file a tariff or
special contract to provide service to SES Concord in 1990. Re
Concord Electric Company, 74 NH PUC 122, 123 (1989). To date, we
have received no such contract or tariff filing from Concord
Electric to provide service to SES aside from this filing which
has been suspended and rejected herein. Concord Electric shall
file a special contract reflecting the rates, terms and
conditions of service for effect in the provision of service to
SES Concord.
Based upon the foregoing, it is hereby
ORDERED, that Exeter and Hampton Electric Company,
Inc.'s proposed tariff pages NHPUC No. 17 - Electricity, Original
Page 40-S and Original Page 40-T are REJECTED; and it is
FURTHER ORDERED, that Concord Electric Company, Inc.'s
proposed tariff pages NHPUC No. 12 - Electricity, 40-R and 40-S
are REJECTED; and it is
FURTHER ORDERED, that Concord Electric Company, Inc.
shall file a special contract reflecting the rates, terms and
conditions of service for effect in providing service to SES
Concord.
By order of the Public Utilities Commission of New
Hampshire this thirteenth day of April, 1998.
Douglas L. Patch Bruce B. Ellsworth Susan S. Geiger
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary