September 23, 2015 – by Dave Stafford in the Indiana Lawyer. Editor’s Note: Valley Watch has been fighting this plant since its inception in 2004. In fact, we were instrumental. along with now deceased, Al Harding, in persuading Vectren to drop their proposed 20% investment in this fiasco. Finally after all these years our dedicated efforts are paying off for Duke ratepayers, at least some.
The Indiana Utility Regulatory Commission must weigh for the third time rate increases for Duke Energy consumers connected to delays in opening the Edwardsport coal gasification plant in Knox County.
The Indiana Court of Appeals sent the matter back to the IURC in a suit brought by intervening interest groups, Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, Inc., and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Utility Regulatory Commission, 93A02-1503-EX-184. The appeals court held the commission erred by not reopening the record after a prior remand and relied on evidence not in the record in determining the reasonableness of rate increases. The panel affirmed IURC rulings that a three-month delay in the plant’s commissioning was not caused by unreasonable actions by Duke, and therefore the cost could be calculated to ratepayers. The panel also affirmed the commission’s determination that the plant was partially in service for federal tax purposes before the in-service operational date in the settlement agreement.
“Based on our review of the record, there was ample evidence regarding the three-month delay and its impact upon Duke’s petition for cost recovery, and there was no need for additional evidence on remand to address that issue,” wrote Senior Judge Betty Barteau. “By contrast, there are insufficient findings as to the value of the rate increases caused by Duke’s declaration that the plant was partially in-service for tax purposes, and whether the increases were reasonable.
“Furthermore, the Intervenors did not have an opportunity to seek discovery on the rate increases, due to Duke’s late clarification of the issue. In addition, the Commission on remand considered additional evidence in the form of orders from ECR 19 and ECR 20, although those orders were not part of the record in IGCC-9 and the Commission did not follow the procedure for taking administrative notice of prior orders. The Commission’s consideration of these orders sharply contradicts its determination that it did not need to reopen the record on remand to receive additional evidence,” Barteau wrote.
“Under these circumstances, on remand the Commission should reopen the record, receive additional evidence … and issue findings of fact on these issues: (1) quantifying the impact upon Duke’s proposed rate increases in this case resulting from Duke’s declaration that the plant was partially in-service for tax purposes; and (2) determining whether the proposed increases were reasonable per Indiana Code section 8-1-8.8-12(d).”