Legislature(1999 - 2000)

04/21/1999 08:07 AM House URS

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HOUSE SPECIAL COMMITTEE ON UTILITY RESTRUCTURING                                                                              
                   April 21, 1999                                                                                               
                     8:07 a.m.                                                                                                  
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative Bill Hudson, Chairman                                                                                            
Representative John Cowdery, Vice Chairman                                                                                      
Representative Pete Kott                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Brian Porter                                                                                                     
Representative John Davies                                                                                                      
Representative Ethan Berkowitz                                                                                                  
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
Representative Joe Green (alternate)                                                                                            
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
* HOUSE BILL NO. 81                                                                                                             
"An Act relating to the provision of electric service in the state;                                                             
and providing for an effective date."                                                                                           
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
* HOUSE BILL NO. 185                                                                                                            
"An Act exempting certain small water utilities from regulation by                                                              
the Alaska Public Utilities Commission."                                                                                        
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
(* First public hearing)                                                                                                        
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: HB  81                                                                                                                    
SHORT TITLE: ELECTRIC CONSUMER'S BILL OF RIGHTS                                                                                 
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG, Dyson                                                                                  
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/05/99       144     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 2/05/99       144     (H)  URS, L&C                                                                                            
 2/16/99       228     (H)  COSPONSOR(S): DYSON                                                                                 
 4/21/99               (H)  URS AT  8:00 AM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB 185                                                                                                                    
SHORT TITLE: SMALL WATER UTILITIES EXEMPT FROM APUC                                                                             
SPONSOR(S): REPRESENTATIVES(S) OGAN                                                                                             
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 4/09/99       702     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 4/09/99       703     (H)  URS, L&C                                                                                            
 4/21/99               (H)  URS AT  8:00 AM CAPITOL 120                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
JANET SEITZ, Legislative Assistant                                                                                              
   for Representative Rokeberg                                                                                                  
Alaska State Legislature                                                                                                        
Capitol Building, Room 24                                                                                                       
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-4968                                                                                                      
POSITION STATEMENT:  Answered questions with regards to HB 81.                                                                  
                                                                                                                                
STEVE CONN                                                                                                                      
Alaska Public Interest Research Group (AKPIRG)                                                                                  
603 West 18th Avenue                                                                                                            
Anchorage, Alaska  99503                                                                                                        
Telephone:  (907) 278-3660                                                                                                      
POSITION STATEMENT:  Testified on HB 81.                                                                                        
                                                                                                                                
ROBERT WILKINSON, Chief Executive Director                                                                                      
Copper Valley Electric Association (CVEA)                                                                                       
P.O. Box 45                                                                                                                     
Glennallen, Alaska  99588                                                                                                       
Telephone:  (907) 822-8340                                                                                                      
POSITION STATEMENT:  Testified on HB 81.                                                                                        
                                                                                                                                
DENNIS LEWIS, Electric Superintendent                                                                                           
City of Petersburg; Chairman, Four Dam Pool                                                                                     
P.O. Box 329                                                                                                                    
Petersburg, Alaska  99833                                                                                                       
Telephone:  (907) 772-4203                                                                                                      
POSITION STATEMENT:  Testified on HB 81.                                                                                        
                                                                                                                                
DAVE CARLSON, Board member                                                                                                      
Four Dam Pool                                                                                                                   
P.O. Box 1232                                                                                                                   
Petersburg, Alaska  99833                                                                                                       
Telephone:  (907) 772-3765                                                                                                      
POSITION STATEMENT:  Testified on HB 81.                                                                                        
                                                                                                                                
NELSON ELLIOT, Director                                                                                                         
Crimsonview Owners Association                                                                                                  
11600 Crimsonview Drive                                                                                                         
Palmer, Alaska  99645                                                                                                           
Telephone:  (907) 746-0775                                                                                                      
POSITION STATEMENT:  Testified on HB 185.                                                                                       
                                                                                                                                
REBECCA PAULI, Attorney                                                                                                         
Birch, Horton, Bittner and Cherot                                                                                               
1127 West 7th Avenue                                                                                                            
Anchorage, Alaska  99501                                                                                                        
Telephone:  (907) 276-1550                                                                                                      
POSITION STATEMENT:  Testified on HB 185.                                                                                       
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-18, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN BILL HUDSON called the House Special Committee on Utility                                                              
Restructuring meeting to order at 8:07 a.m.  Members present at the                                                             
call to order were Representatives Hudson, Cowdery, Kott, Rokeberg,                                                             
Porter and Davies.  Representative Berkowitz arrived at 8:08 a.m.                                                               
Representative Green (alternate) was not present.                                                                               
                                                                                                                                
HB  81 - ELECTRIC CONSUMER'S BILL OF RIGHTS                                                                                     
                                                                                                                                
CHAIRMAN HUDSON announced that the first order of business was                                                                  
House Bill No. 81, "An Act relating to the provision of electric                                                                
service in the state; and providing for an effective date."                                                                     
                                                                                                                                
Number 0153                                                                                                                     
                                                                                                                                
REPRESENTATIVE NORMAN ROKEBERG, Sponsor, Alaska State Legislature,                                                              
noted that Janet Seitz, his Legislative Assistant, was present to                                                               
answer any questions.  He stated:                                                                                               
                                                                                                                                
     House Bill 81 is the result of the testimony and information                                                               
     that was provided to the legislature in the form of the Joint                                                              
     Committee on Electric Utility Restructuring, which is a ...                                                                
     committee which I co-chaired with Senator Sharp this last                                                                  
     year.  In our studies of the electrical restructuring issue it                                                             
     became apparent to me, Mr. Chairman, that because we are                                                                   
     fundamentally a publicly power-owned state the first building                                                              
     block that we should take up in consideration of any                                                                       
     electrical restructuring is the consumer protection issues and                                                             
     giving guidance to the APUC [Alaska Public Utilities                                                                       
     Commission] as to what the legislature believes to be the most                                                             
     important issues before we, if you will, dive off the cliff                                                                
     into any area of semi-deregulation or restructuring.                                                                       
                                                                                                                                
     With that, Mr. Chairman, we have drafted this legislation,                                                                 
     which is intended to be triggered, if in fact the APUC and/or                                                              
     the legislature adopts any form of electrical restructuring or                                                             
     retail wheeling, whatever you wish to describe it.  Mr.                                                                    
     Chairman, I have passed out the committee a letter that was                                                                
     addressed to myself and Representative Sanders, as the                                                                     
     chairman of the subcommittee in the Labor and Commerce                                                                     
     Committee last year or in 1997, which is an opinion of the                                                                 
     Department of Law, indicating that under existing statute the                                                              
     APUC has the ability without legislative direction to take up                                                              
     and grant competition.                                                                                                     
                                                                                                                                
     Mr. Chairman, I would point out that over the course of                                                                    
     testimony to the interim committee this was a major ... topic                                                              
     of conversation, but I would report to you that I think                                                                    
     there's general consensus throughout the states in utilities                                                               
     that the APUC does retain this power.  At one point a couple                                                               
     years ago there was some controversy about whether or not it                                                               
     exists, but I think everybody recognizes now or agrees with                                                                
     this legal opinion that the APUC does have the power and with                                                              
     that, Mr. Chairman, because there is a docket before the APUC                                                              
     by Aurora Power to be an aggregator or resaler of power, I                                                                 
     think this bill is appropriate currently, and therefore, it                                                                
     has some sense of urgency and a sense that even if the                                                                     
     legislature does not act on the report by CH2M Hill that the                                                               
     docket before the APUC allows them and almost asks them to                                                                 
     take up the whole issue of restructuring and particularly that                                                             
     of the resaler or the aggregator.  Mr. Chairman it's my                                                                    
     opinion that the provisions for these regulations and consumer                                                             
     protections should be in place before that docket is ruled on                                                              
     finally to protect -- in the public interest.                                                                              
                                                                                                                                
     This proposal is not unique among the states, Mr. Chairman.                                                                
     You'll find in your packet just some examples of legislation                                                               
     and reports from various other jurisdictions; including                                                                    
     Arizona, California, Maine [and] Delaware that have adopted an                                                             
     electric ... consumer bill of rights, so I can't take credit                                                               
     for being the originator of this idea, but it's positive                                                                   
     legislative plagiarism, if you will, that we address these                                                                 
     particular issues.                                                                                                         
                                                                                                                                
     Among the issues ["rights"] that are covered here, Mr.                                                                     
     Chairman, are the Right to Know, the Right to Choose and the                                                               
     Right to Fair Dealing, the Right to Redress, the Right to                                                                  
     Privacy, the Right to Service Quality and Required Code of                                                                 
     Conduct and Oversight.                                                                                                     
                                                                                                                                
     The bill further mandates regulations to require that                                                                      
     electrical service providers must continue to provide service                                                              
     to residential consumers who demonstrate that economic                                                                     
     hardship has prevented payment of a bill in full.  So, this                                                                
     speaks to the issue of not only the provider of last resort,                                                               
     but also speaks to the issue of inability to pay, and those                                                                
     particular consumer issues.                                                                                                
                                                                                                                                
     The bill is intentionally simple, in the sense, to give                                                                    
     maximum flexibility to the APUC in drafting the regulations,                                                               
     but on the other hand it points out and it stipulates those                                                                
     areas that should be covered by the commission.                                                                            
                                                                                                                                
     We also have distributed to you an e-mail that we received,                                                                
     just yesterday, from Karl Rabago of CH2M Hill, who was kind                                                                
     enough to look at the legislation and makes a critique of a                                                                
     legislation and has several points and recommendations to the                                                              
     committee regarding adjustments to the bill.  We haven't had                                                               
     time to digest that and put it in any amendment form, Mr.                                                                  
     Chairman, but I would commend that to the committee.                                                                       
                                                                                                                                
     Also, we do have a letter of opposition from Copper Valley                                                                 
     Electrical Association, and it points out something very                                                                   
     interesting that everybody should be aware of; that in the                                                                 
     existing statutory scheme in Alaska publicly owned utilities                                                               
     may opt out by election.  Copper Valley has opted out of                                                                   
     regulation by the APUC from economic regulation; however, this                                                             
     bill before you does provide that it can't be opted out from                                                               
     and that's an important fact and I wanted to bring that to the                                                             
     committee's attention, because a consumer bill of rights and                                                               
     protection of the consumer interest is important whether you                                                               
     regulate it or not.  So, I think it should have a universal                                                                
     application to all consumers in the state of Alaska.  ...                                                                  
                                                                                                                                
     There's the concerns and I appreciate Mr. Wilkinson's concern;                                                             
     hopefully he'll be on teleconference this morning and be able                                                              
     to testify.  We also have testimony hopefully from Ms. Pease                                                               
     from Aurora Powers speaking on some of the issues that are                                                                 
     important.  Mr. Chairman, I think there is a certain sense of                                                              
     urgency on this legislation.  I think it needs to tuned up a                                                               
     little bit, but I commend this to the committee and look                                                                   
     forward to working on this and reporting this bill out.  Thank                                                             
     you Mr. Chairman.                                                                                                          
                                                                                                                                
Number 0680                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ wondered what legislation, from another                                                                
state, was used as a pattern for Representative Rokeberg's                                                                      
legislation.                                                                                                                    
                                                                                                                                
REPRESENTATIVE ROKEBERG deferred the question to Ms. Seitz.                                                                     
                                                                                                                                
JANET SEITZ, Legislative Assistant for Representative Rokeberg,                                                                 
Alaska State Legislature, replied that HB 81 was basically                                                                      
patterned after Michigan.                                                                                                       
                                                                                                                                
REPRESENTATIVE BERKOWITZ indicated that if the adjective                                                                        
"competitive" was eliminated throughout the legislation, the                                                                    
consumer protection would apply to all consumers in the state and                                                               
it would avoid the problem of having providers claim that they                                                                  
weren't in a competitive market, and therefore, they didn't have to                                                             
comply.                                                                                                                         
                                                                                                                                
Number 0740                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG pointed out that the intention of the bill                                                              
is to have the protections in place only for those areas and those                                                              
jurisdictions that have competition.  Under current regulatory                                                                  
authority a lot of the issues should to be spoken to, even though                                                               
there is a certain universality.  The concern is what type of                                                                   
statutory and regulatory regime would a competitor of including a                                                               
pilot program be operating under.  The intent of this legislation                                                               
is to draw to the commission's attention what the legislature                                                                   
believes the public policy of the state should be in the                                                                        
competitive environment, but not necessarily a fully regulated                                                                  
environment.                                                                                                                    
                                                                                                                                
REPRESENTATIVE BERKOWITZ explained that it would leave consumers in                                                             
a non-competitive environment with different rights than is seen in                                                             
a competitive environment.                                                                                                      
                                                                                                                                
REPRESENTATIVE ROKEBERG said that he believes Representative                                                                    
Berkowitz's statement is probably accurate.  The question is                                                                    
whether or not the consumers in a non-competitive environment are                                                               
properly protected by the existing regulatory scheme.  He added                                                                 
that it is not the intention of HB 81 to rewrite the entire                                                                     
regulatory scheme that already exists, but to rewrite it in that                                                                
area, if selected, to adopt competitive market place conditions for                                                             
electric service providers.  The bill speaks to instances of single                                                             
billing provisions, which really only apply to competition and                                                                  
those type of circumstances.                                                                                                    
                                                                                                                                
REPRESENTATIVE BERKOWITZ stated that if that is really the intent                                                               
of the bill then it seems that something could be done to tighten                                                               
up the title.                                                                                                                   
                                                                                                                                
Number 0888                                                                                                                     
                                                                                                                                
REPRESENTATIVE COWDERY said, "You said that the smaller utilities                                                               
-- this doesn't affect the small ones; the unregulated utilities.                                                               
Just regulated or unregulated.  He asked, "Does it affect both or                                                               
the smaller utilities it's your attention not to affect?"                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG clarified that it is not a matter of size,                                                              
but whether or not it is a competitive environment.  Currently, all                                                             
utilities in the state that have not opted out are regulated by the                                                             
APUC.  Even the opted out utilities are regulated in terms of their                                                             
service area.  The distinction is the whole issue of restructuring                                                              
the competitive market place.  The point of HB 81 is contingent on                                                              
the creation of any kind of competitive environment.  He noted that                                                             
one of Mr. Rabago's recommendations is to make sure that the bill                                                               
is clear that it would affect the buy-out program.                                                                              
                                                                                                                                
REPRESENTATIVE COWDERY wondered if Chugach Electric Association                                                                 
(CEA) and Matanuska Electric Association (MEA) have had an opinion                                                              
on HB 81.                                                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG indicated that he is not sure if any formal                                                             
testimony was received on the bill, but they have been in                                                                       
discussions with them for several years.                                                                                        
                                                                                                                                
CHAIRMAN HUDSON noted that Robert Wilkinson from Copper Valley                                                                  
Electric Association (CVEA) will be testifying on the bill as well                                                              
as Steve Conn from the Alaska Public Interest Research Group                                                                    
(AKPIRG).                                                                                                                       
                                                                                                                                
Number 1037                                                                                                                     
                                                                                                                                
REPRESENTATIVE PORTER referred to Representative Rokeberg's                                                                     
testimony, specifically the part on right to privacy and wondered                                                               
where privacy was stated in the bill.                                                                                           
                                                                                                                                
REPRESENTATIVE ROKEBERG referred to page 2, subsection (4) on line                                                              
15 of HB 81, where it reads, "maintain information and records,                                                                 
including records concerning individual electric use patterns,                                                                  
about the electric service provider's consumers as confidential                                                                 
records."  There is additionally some comments by Mr. Rabago on the                                                             
treatment of those records.  The intent there is so a competitor                                                                
doesn't become privy to that, although there are provisions and                                                                 
recommendations that the records be available without the names                                                                 
attached to them so they are a part of a statistical pool.                                                                      
                                                                                                                                
                                                                                                                                
CHAIRMAN HUDSON indicated that he was looking in HB 81 for a                                                                    
reliability requirement.                                                                                                        
                                                                                                                                
Number 1144                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG referred to page 2, line 31, subsection (d)                                                             
of HB 81, where it reads, "The commission shall adopt regulations                                                               
to require a supplier or an aggregator operating in a competitive                                                               
electric service market to meet minimum standards for certification                                                             
as a condition of market entry."                                                                                                
                                                                                                                                
CHAIRMAN HUDSON asked if the idea is that reliability will fit                                                                  
within the minimum standards.                                                                                                   
                                                                                                                                
REPRESENTATIVE ROKEBERG replied that is the intention.  He pointed                                                              
out that reliability was probably the number one issue of the                                                                   
testimony given at the interim committee.                                                                                       
                                                                                                                                
Number 1190                                                                                                                     
                                                                                                                                
REPRESENTATIVE DAVIES indicated that there may be some question                                                                 
about defining when a competitive electric service market has been                                                              
entered into.  In the report from CH2M Hill there are a variety of                                                              
pathways that are discussed; one, jumping in with both feet and                                                                 
two, systematically getting there.  The question in his mind is if                                                              
they might want to consider a more measured approach to getting                                                                 
into retail competition.  He wondered at what point are they truly                                                              
in a competitive retail market and if that might be something the                                                               
APUC decides.  Clearly whenever there is some consumer choice this                                                              
would have to come into effect.                                                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG referred to paragraph 2 on page 1 of Mr.                                                                
Rabago's e-mail, where it states, "A competitive electric service                                                               
market means a market or program in which retail electricity                                                                    
customers are provided a choice of electricity provider, whether on                                                             
a permanent, limited, or pilot basis."  He said that he would be                                                                
recommending that as an amendment to HB 81 in order to make sure                                                                
that it's clarified.                                                                                                            
                                                                                                                                
REPRESENTATIVE DAVIES asked Representative Hudson what his intent                                                               
is on moving the bill.                                                                                                          
                                                                                                                                
CHAIRMAN HUDSON replied that the committee will work through                                                                    
testimony and then decide.  He agreed with Representative Rokeberg                                                              
that an amendment should be made to include Mr. Rabago's                                                                        
definition.                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG stated that he appreciates Mr. Rabago's                                                                 
input, which is not only complimentary to the legislation, but                                                                  
also makes some extremely important recommendations.                                                                            
                                                                                                                                
Number 1354                                                                                                                     
                                                                                                                                
CHAIRMAN HUDSON stated, "One of the questions I have,                                                                           
Representative Rokeberg, is we're putting in a new provision in                                                                 
there to essentially tell the commission to establish by regulation                                                             
all of these consumer protective elements in here.  To your                                                                     
knowledge, particularly since you dealt with this throughout the                                                                
interim last year, how many of these are they currently dealing                                                                 
with?  Do they have anything like this already on the books that                                                                
we're trying to expand or to fulfill, or do they not?"                                                                          
                                                                                                                                
REPRESENTATIVE ROKEBERG replied, "They do have provisions on the                                                                
economic hardship issue, but in terms of many of the other issues,                                                              
I'm basically guessing that they don't, because a lot of these are                                                              
based on the necessity to have regulation in the competitive                                                                    
environment not in a non-competitive environment."  He pointed out                                                              
that a substantial fiscal note may accompany HB 81.  There have                                                                 
been some conversations with the APUC.  He said that in a certain                                                               
sense it doesn't surprise him, and in another sense he finds it                                                                 
disappointing, but anytime legislation is being drafted of this                                                                 
scope, meaning that HB 81 is an essential portion of any                                                                        
restructuring regime, there is going to be some cost.  It is up to                                                              
the legislature to decide if they want to absorb any of those costs                                                             
and how that is going to be done with relation to HB 81.                                                                        
                                                                                                                                
CHAIRMAN HUDSON requested clarification on whether or not there was                                                             
any fiscal note.                                                                                                                
                                                                                                                                
REPRESENTATIVE ROKEBERG clarified that they haven't received one                                                                
yet.                                                                                                                            
                                                                                                                                
STEVE CONN, Alaska Public Interest Research Group (AKPIRG),                                                                     
testified via teleconference from Anchorage.  He stated that from                                                               
day one, as we enter the brave new world of electric restructuring                                                              
deregulation, Representative Rokeberg has sought to learn and                                                                   
define the consumers interests.  He pointed out that HB 81 is                                                                   
seeking to address the brave new world in which consumers will now                                                              
be confronting competition.  In California there were people who                                                                
held themselves out as capable of providing service and were                                                                    
actively soliciting consumers when they in fact could not provide                                                               
service; therefore, pre-certification requirements are absolutely                                                               
essential.  A problem that is less apparent in the bill is the                                                                  
"slamming" phenomenon that happens in telecommunications, whereby                                                               
someone calls and before the consumer knows it they've been                                                                     
switched.  The Federal Communications Commission (FCC) has                                                                      
developed regulations for allowing a consumer, who discovers that                                                               
they are working with a "Brand X" provider, to opt out of that                                                                  
within a certain period of time.  This new environment does require                                                             
funding.  Historically, the biggest problem in Alaska has not been                                                              
the absence of legislation to protect consumers, but the                                                                        
wherewithal to enforce and implement that legislation.  He said                                                                 
that he hopes a fiscal not emerges which is satisfactory to the                                                                 
legislature and accompanies the bill throughout.                                                                                
                                                                                                                                
Number 1623                                                                                                                     
                                                                                                                                
MR. CONN continued.  He pointed out that another issue the bill is                                                              
seeking to address is the issue of "cherry-picking."  There are                                                                 
customers who are desirable and there are customers that are less                                                               
desirable.  He expressed concern with the language on page 2, lines                                                             
10 through 14, which reads, "offer electric service to any consumer                                                             
in the area served by the electric service provider so long as                                                                  
providing the service is technically feasible at a reasonable cost                                                              
to the provider; provide electric service choices and pricing                                                                   
options to all consumers without discrimination."  He wondered who                                                              
is alternately going to determine the technical feasibility and the                                                             
reasonable cost.  He also recommended that the language read,                                                                   
"provide the same electric service choices," instead of, "without                                                               
discrimination."                                                                                                                
                                                                                                                                
MR. CONN concluded by stating that HB 81 demands that APUC or some                                                              
regulatory mechanism have exclusive and broad power to deal with                                                                
consumer complaints.  He believes that HB 81 is a good first step,                                                              
but he hopes that the committee will take his recommendations under                                                             
advisement and fine tune the bill.                                                                                              
                                                                                                                                
Number 1743                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ stated that it seems the consumers are                                                                 
best served if the adjective "competitive" is taken out of the                                                                  
bill.  If it is going to work for consumers in a competitive                                                                    
environment, it should work for all consumers.                                                                                  
                                                                                                                                
MR. CONN responded that it is quite obvious that HB 81 would not                                                                
have emerged without the competitive reality that is moving across                                                              
the state.  There are a lot of electric cooperatives, particularly                                                              
the smaller ones, that do a good job of serving their consumers and                                                             
there is a more immediate relationship between the operators and                                                                
the consumers.  He said that his own sense of what the word                                                                     
"competitive" means is that it reflects a movement throughout the                                                               
entire state and is not reflective of subregions.  He views the                                                                 
bill as one that reflects that the entirety of the state,                                                                       
particularly as it relates to suppliers and aggregators.                                                                        
                                                                                                                                
Number 1813                                                                                                                     
                                                                                                                                
CHAIRMAN HUDSON referred to Mr. Rabago's suggestion that the                                                                    
legislature implement a definition of a competitive electric                                                                    
service market.  That way if the term "competitive" was left in the                                                             
bill with a definition, it would fit better.                                                                                    
                                                                                                                                
REPRESENTATIVE BERKOWITZ pointed out that anytime there is a                                                                    
definition, it is a loophole for somebody.                                                                                      
                                                                                                                                
REPRESENTATIVE COWDERY noted that competition is suppose to be the                                                              
best means of consumer protection.  The utilities are deregulated                                                               
to allow for competition.                                                                                                       
                                                                                                                                
MR. CONN explained that there is no question that competition is                                                                
good for the consumer, but the problem that is found with the new                                                               
realms, telecommunication and electric or other, is that those who                                                              
speak with one tongue, competition, often seek to discriminate as                                                               
they actually move into a realm and implement their endeavors.  For                                                             
example, "cherry-picking" is a phenomenon; the new competitor                                                                   
doesn't really want to compete for all the business, they just want                                                             
to compete for the very best business.  A bill like HB 81 serves a                                                              
useful purpose, because it sustains, maintains and underscores                                                                  
competition.                                                                                                                    
                                                                                                                                
REPRESENTATIVE COWDERY stated that if this regulation is needed                                                                 
when competition occurs, then it must really be needed without                                                                  
competition.                                                                                                                    
                                                                                                                                
Number 1941                                                                                                                     
                                                                                                                                
ROBERT WILKINSON, Chief Executive Director, Copper Valley Electric                                                              
Association (CVEA), testified via teleconference from Glennallen.                                                               
He expressed his appreciation to Representative Rokeberg and the                                                                
spirit of legislation regarding HB 81.  He indicated that he had a                                                              
few concerns with the bill; one, that the CH2M Hill report is in                                                                
draft form.  In his opinion the state falls short of properly                                                                   
addressing rural issues.  Another policy issue that has not been                                                                
addressed or finalized is how will public power, in general, be                                                                 
treated.  As heard from the consultants this is a public power                                                                  
state with somewhere around 90 percent of the costumers being                                                                   
served by public power utilities.  With those issues open, he                                                                   
believes that adopting a bill of rights that would effect every                                                                 
regulated electric utility in the state would be premature, given                                                               
that it is not certain if competition will be coming to certain                                                                 
parts of Alaska.                                                                                                                
                                                                                                                                
Number 2061                                                                                                                     
                                                                                                                                
MR. WILKINSON continued.  Two, the applicability of Article 3 of AS                                                             
42.05, which has a provision where cooperative utilities may opt                                                                
out from under economic regulation by the APUC.  CVEA exercised                                                                 
that right last year and of the 36 percent of CVEA members who were                                                             
asked, "Should CVEA be exempt from regulation by the APUC?", 67                                                                 
percent said yes.  A major concern during the time when the CVEA                                                                
was campaigning for deregulation was the fair and                                                                               
non-discriminatory treatment of the customers by the utility.  As                                                               
part of the campaign CVEA adopted their APUC approved Tariff as the                                                             
rules and regulations they would follow under local regulation.                                                                 
They are planning on making some modest changes to the Tariff to                                                                
make it a little more user-friendly to the customer.  There was a                                                               
concern identified by the members that if the CVEA took the APUC                                                                
out then there would not be an appellate body to go to in the event                                                             
they had a dispute with the utility.  The CVEA adopted a very                                                                   
expanded complaint procedure, and created what they call a Board of                                                             
Adjustment, which is composed of members of the association.  The                                                               
Board of Adjustment serves as an appellate body for going through                                                               
a dispute resolution.  Specifically, if the members are not                                                                     
satisfied with how the utility decides on a certain issue then they                                                             
appeal to the Board of Adjustment and then the Board of Adjustment                                                              
may appeal to the full Board of Directors if the customer is still                                                              
unsatisfied.  The CVEA also adopted principles that say that their                                                              
services and policies will be fair and non-discriminatory.  This                                                                
again was a very important issue to the membership.                                                                             
                                                                                                                                
MR. WILKINSON concluded by saying that he feels it is premature to                                                              
move HB 81, given where the CH2M Hill study is on rural Alaska and                                                              
public power.  He believes that CVEA's local elected Board of                                                                   
Directors can do the job of providing electrical service much                                                                   
better than the APUC, and that is a major reason they opted out of                                                              
APUC regulation.  Doing business in a rapidly changing environment                                                              
when there is the bureaucracy of the APUC is very difficult.  CVEA                                                              
has two open dockets at the APUC still dealing with competitive                                                                 
issues.  He said that if CVEA is going to survive a new competitive                                                             
environment, they cannot afford APUC regulation and they feel they                                                              
can do better on their own.                                                                                                     
                                                                                                                                
Number 2246                                                                                                                     
                                                                                                                                
REPRESENTATIVE PORTER asked Mr. Wilkinson what kind of competitive                                                              
arena he was in presently that would entail a "cherry-picking"                                                                  
case.                                                                                                                           
                                                                                                                                
MR. WILKINSON replied that there was a company called Alaska Power                                                              
Systems that was attempting to install generators adjacent to two                                                               
of CVEA's customers and it was a direct competitive threat.  If                                                                 
these customers had went off the system it would have been a good                                                               
example of the stranded investment issue.  CVEA would have lost                                                                 
energy sales, and given the cost to operate this utility CVEA would                                                             
have experienced adverse rate impacts on their customers.  The                                                                  
company, Alaska Power Systems, is now out of business and the                                                                   
situation has more or less gone away.  There was also a situation                                                               
where a company contracted with CVEA's largest industrial customer,                                                             
Petro Star Valdez Refinery, and it looked as if they were going to                                                              
install their generating equipment and the Petro Star Valdez                                                                    
Refinery was going to leave CVEA.  The members, in that situation,                                                              
would be facing a rate increase of over 13 percent, which means                                                                 
"cherry-picking" in rural Alaska is very real and CVEA has seen it                                                              
first hand.  He pointed out that the "cherry picking" issue would                                                               
still remain under the purview of the APUC, because "cherry                                                                     
picking" is a service territory issue, which the APUC continues to                                                              
regulate.  He added that if a company came in attemping to take                                                                 
some of CVEA's large customers, they would file a complaint with                                                                
the APUC.                                                                                                                       
                                                                                                                                
Number 2356                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said that he appreciates Mr. Wilkinson's                                                                
comments on HB 81.  He requested clarification on whether or not                                                                
Mr. Wilkinson's concern is more a concern with regards to the                                                                   
APUC's ability or inability to follow through and implement HB 81                                                               
or if it is about the area of competition.                                                                                      
                                                                                                                                
MR. WILKINSON expressed concern with regards to competition coming                                                              
to rural Alaska prior to adopting legislation, because it would                                                                 
give the APUC broad power and that is a concern.  Also, he believes                                                             
that the study does not properly address what competition will look                                                             
like in rural Alaska.                                                                                                           
                                                                                                                                
                                                                                                                                
Number 2400                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG pointed out that Representative Berkowitz                                                               
has asked some questions along the lines of why the provisions of                                                               
HB 81 would not be applicable in a non-competitive environment.  He                                                             
asked Mr. Wilkinson if he would shed some light on whether or not                                                               
he feels it is applicable to his circumstance currently.                                                                        
                                                                                                                                
MR. WILKINSON stated that HB 81 is very much applicable to every                                                                
utility that requires a certificate.  He pointed out that it might                                                              
be appropriate to include a definition as to where competitive                                                                  
markets are going to exist, and certainly if HB 81 was modified to                                                              
say that the competitive markets include the interconnected                                                                     
Railbelt system or the Anchorage area, whatever the committee                                                                   
chooses, HB 81 would make a lot more sense.                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG restated his question.  He asked if HB 81                                                               
was applied to Mr. Wilkinson's service area, currently, not                                                                     
withstanding whether there was competition or not, does he think it                                                             
would be beneficial or harmful.                                                                                                 
                                                                                                                                
TAPE 99-17, SIDE B                                                                                                              
Number 2461                                                                                                                     
                                                                                                                                
MR. WILKINSON stated, "... our Board of Directors, which are                                                                    
elected by our 3,300 customers are the best equipped to determine                                                               
what is best for this region of the state, not the Alaska Public                                                                
Utilities Commission."                                                                                                          
                                                                                                                                
CHAIRMAN HUDSON explained that the committee is looking for what                                                                
the constructive elements in HB 81 are and where they should apply                                                              
and where they should not apply.                                                                                                
                                                                                                                                
MR. WILKINSON responded that he would be happy to provide                                                                       
additional comments on the individual sections of the legislation.                                                              
                                                                                                                                
Number 2365                                                                                                                     
                                                                                                                                
DENNIS LEWIS, Electric Superintendent, City of Petersburg;                                                                      
Chairman, Four Dam Pool, testified via teleconference from                                                                      
Petersburg.  He stated that HB 81 is premature; they need to wait                                                               
and see what competition brings before they create solutions for                                                                
it.  The communities, at least Petersburg, opted out by election in                                                             
the middle 1970s from the APUC.  The APUC only governs two things                                                               
in the electric utility in Petersburg; one, the certificate of                                                                  
convenience, which is a service area, and two, if there is a                                                                    
dispute on joint goal agreements.  As far as rate goes, with                                                                    
regards to competition, Petersburg is an isolated community and the                                                             
Mayor and City Council decide the regulations.  He cannot see a                                                                 
small community, such as Petersburg, being governed by the APUC.                                                                
                                                                                                                                
Number 2294                                                                                                                     
                                                                                                                                
DAVE CARLSON, Board member, Four Dam Pool, testified via                                                                        
teleconference from Petersburg.  He noted that he is also a former                                                              
Mayor and City Council member.  He stated that municipalities such                                                              
as Petersburg presently have the governing powers to deal with the                                                              
issues at hand.  A lot of the issues addressed in HB 81 have come                                                               
up on a local level and they've dealt with them there.  He                                                                      
expressed concern with APUC becoming more involved in the                                                                       
regulation of the utility, because he feels it will raise the level                                                             
of regulation to a degree of almost redundancy.  He pointed out                                                                 
that issues and consumer complaints are handles effectively at the                                                              
local level and energy is delivered to the consumer at a                                                                        
competitive rate; if he truly thought that the APUC could do a                                                                  
better job then they do locally then he would be forced to believe                                                              
that the federal government could do a better job regulating fish                                                               
and game.                                                                                                                       
                                                                                                                                
Number 2228                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG informed Mr. Carlson that HB 81 does not                                                                
apply to any area that is not under a competitive market situation.                                                             
He asked Mr. Carlson if he thought that Petersburg would or should                                                              
be classified as a competitive retail marketplace.                                                                              
                                                                                                                                
MR. CARLSON responded that he didn't understand Representative                                                                  
Rokeberg's question.                                                                                                            
                                                                                                                                
REPRESENTATIVE ROKEBERG said that he wasn't sure if Mr. Carlson                                                                 
understood the bill, because it only applies to those areas that                                                                
are in a competitive market circumstance.                                                                                       
                                                                                                                                
MR. CARLSON stated that there is not currently any competition in                                                               
Petersburg, although they still have the same concerns with "cherry                                                             
picking."  If HB 81 is specifically limited to the Railbelt area,                                                               
then that is another issue, and if Petersburg is truly exempt then                                                              
he indicated that his comments probably weren't worth much.                                                                     
                                                                                                                                
Number 2156                                                                                                                     
                                                                                                                                
REPRESENTATIVE COWDERY pointed out that there is competition in the                                                             
telephone industry.  He asked Representative Rokeberg if he thought                                                             
HB 81 should apply to the telephone industry as well.                                                                           
                                                                                                                                
REPRESENTATIVE ROKEBERG noted that there is not local competition,                                                              
except in the Anchorage area, and there are certain areas that                                                                  
might be applicable, but he hasn't looked at them yet.                                                                          
                                                                                                                                
CHAIRMAN HUDSON added that there is not only telephone, but also                                                                
cable.                                                                                                                          
                                                                                                                                
REPRESENTATIVE ROKEBERG explained that these are all consumer                                                                   
protection issues that are suppose to be covered by the regulatory                                                              
authority, which is the APUC.  It is the level and in what context                                                              
they choose to approach them, and HB 81 speaks to the context of                                                                
retail electrical service.                                                                                                      
                                                                                                                                
BOB LOHR, Executive Director, APUC, testified via teleconference                                                                
from Anchorage.  He stated that his staff has prepared a fiscal                                                                 
note for HB 81.  They gave it to the APUC to review.  The staff                                                                 
estimate is $207.7 thousand fiscal year 2000 and the same level                                                                 
through the year 2003 and then dropping off to zero thereafter.  As                                                             
Representative Rokeberg indicated this is not a cheap or free                                                                   
exercise in terms of the steps involved; number one, the                                                                        
development of very detailed regulations and the crafting of those                                                              
and, number two, the ongoing response to complaints under the                                                                   
regulations adopted on the local telephone side.  The volume of                                                                 
complaints has substantially increased as a result of local                                                                     
competition.  Customers have a choice, but in terms of exercising                                                               
that choice the customers need to have the rights that are provided                                                             
in this bill, clearly specified, as well as consumer education                                                                  
about what is involved in making a choice of a service provider.                                                                
In the past it has been a monopoly service and the commission has                                                               
very carefully regulated the entry into that monopoly market.                                                                   
                                                                                                                                
REPRESENTATIVE PORTER stated that from the testimony received,                                                                  
specifically CVEA's testimony, he is wondering if HB 81, when in                                                                
place, would kick in when somebody decided to come into a small                                                                 
community and sell a generator.  He said if that was the case it                                                                
would be problematic.                                                                                                           
                                                                                                                                
CHAIRMAN HUDSON pointed out that they have the option of opting                                                                 
out, so if they opt out then would it or would it not apply.                                                                    
                                                                                                                                
Number 1906                                                                                                                     
                                                                                                                                
REPRESENTATIVE DAVIES agreed that it is important to define when HB
81 goes into effect.  He stated that he would hope that the issue                                                               
that Representative Porter is referring to would be dealt with                                                                  
under the territorial regulatory powers of APUC and not under HB
81.  He noted that he can see where the ambiguity is coming from                                                                
and thinks that the ambiguity needs to be removed.                                                                              
                                                                                                                                
REPRESENTATIVE ROKEBERG stated that he appreciates Representative                                                               
Porter's concern and he is not sure whether or not it is handled                                                                
under the territorial issue.  He clarified that the point is that                                                               
the local utilities can opt out but they can't opt out under                                                                    
territoriality and the provisions in HB 81 would apply to them if                                                               
there was a competitive situation.  If the APUC allows competition                                                              
they have to look at these issues.  He concluded by saying that                                                                 
some of the testimony exhibits the fear and loathing of electrical                                                              
restructuring and the lack of confidence in the APUC and the                                                                    
concerns about what electric restructuring will do in rural areas.                                                              
He thinks that it is ironic, because HB 81 is trying to answer                                                                  
those questions, not inflame them, and those people would not be                                                                
affected unless they were in that situation and then HB 81 would                                                                
kick in and help.                                                                                                               
                                                                                                                                
Number 1791                                                                                                                     
                                                                                                                                
CHAIRMAN HUDSON announced that HB 81 would be held over to the next                                                             
meeting.                                                                                                                        
                                                                                                                                
HB 185 - SMALL WATER UTILITIES EXEMPT FROM APUC                                                                                 
                                                                                                                                
CHAIRMAN HUDSON announced that the next order of business was House                                                             
Bill No. 185, "An Act exempting certain small water utilities from                                                              
regulation by the Alaska Public Utilities Commission."                                                                          
                                                                                                                                
Number 1765                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN stated that HB 185 adds "small water utilities"                                                             
to the existing exemptions that apply to "small electric" and                                                                   
"small telephone" utilities that don't gross over $50,000 annually.                                                             
He pointed out that there is a subdivision in his district where in                                                             
the first phase the homeowners association assumed ownership of the                                                             
utility and then a subsequent different developer decided to come                                                               
in and develop the second phase, which was never developed but                                                                  
simply platted and the developer wanted to tag on to the water                                                                  
system owned by the homeowners association.  The Homeowners                                                                     
Association wanted the developer to develop his own water system,                                                               
so the developer appealed to the APUC to get them to declare it a                                                               
public utility.  He indicated that he has been waiting for the APUC                                                             
to rule on it, but they have not, so he introduced HB 185.  He                                                                  
referred to a letter from Birch, Horton, Bittner and Cherot                                                                     
addressed to Representative Hudson, on the second page, where it                                                                
reads, "Water is essential to a person's survival while electricity                                                             
and telephone service are not."  He stated that electricity is kind                                                             
of essential to Alaskan's survival, because their water systems                                                                 
don't run without electricity and their heat doesn't run without                                                                
electricity.  He referred to the next paragraph of the letter,                                                                  
where it reads, "Historically, the APUC has not sought out small                                                                
water utilities such as homeowners associations for regulations.                                                                
The APUC only becomes involved in the 'regulation' of these water                                                               
utilities when asked to do so by a consumer or a lending                                                                        
institution."  He referred to footnote 2, where it states, "See,                                                                
e.g. Re Country Lane Estate Subdivision Property Owners                                                                         
Association" and under that it reads, "ORDER declaring a small                                                                  
residential subdivision's sewer operations to be a public utility,                                                              
but exempting the utility from regulation by the commission."  He                                                               
said, therefore, by their own footnotes they are declared a public                                                              
utility, but they are not regulated.                                                                                            
                                                                                                                                
Number 1553                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ explained that the synthesis in the                                                                    
beginning is nothing more than an editorial comment about the                                                                   
content of the order.  He believes that the APUC was making a                                                                   
general determination that small residential sewer operations are                                                               
public utilities subject to regulations.                                                                                        
                                                                                                                                
REPRESENTATIVE OGAN pointed out that he thought it was kind of                                                                  
curious that in the example they used they exempted them.  He                                                                   
stated that they would like to do the same and exempt them.                                                                     
                                                                                                                                
CHAIRMAN HUDSON asked how the $50,000 applies.                                                                                  
                                                                                                                                
REPRESENTATIVE OGAN responded that he picked it because it is                                                                   
already set in statute for electric and telephone utilities and                                                                 
there is a precedent for it.                                                                                                    
                                                                                                                                
CHAIRMAN HUDSON indicated that it is the same figure that is used                                                               
for electric.                                                                                                                   
                                                                                                                                
REPRESENTATIVE OGAN replied yes.                                                                                                
                                                                                                                                
Number 1473                                                                                                                     
                                                                                                                                
REPRESENTATIVE DAVIES stated that HB 185 seems to be an example of                                                              
a continuing class of legislation that deals with individual                                                                    
circumstances; legislation by anecdote.  He expressed concern with                                                              
legislating a solution to a series of individual programs.  He                                                                  
stated that he is assuming that the opt out provision applies to                                                                
the homeowners association as well.  He believes that when a                                                                    
subdivision is developed and water is provided to anyone that moves                                                             
in then there needs to be some public protection.  The appropriate                                                              
place to resolve issues that arise on the subject of public service                                                             
is the APUC; that's why they were formed.                                                                                       
                                                                                                                                
REPRESENTATIVE PORTER said that he doesn't disagree that an                                                                     
individual situation was the impetus for this legislation, because                                                              
quite often individual situations bring things to light.  He asked                                                              
why there is a statute that says that there is a $50,000 gross                                                                  
income exemption for electrical and telephone that does not include                                                             
water.                                                                                                                          
                                                                                                                                
REPRESENTATIVE COWDERY indicated that the small water utilities                                                                 
have always been protected in the health and required samples.  For                                                             
example in the Anchorage area in the early times when alot of                                                                   
subdivisions had there own water systems they were tightly                                                                      
regulated by the health issues.  Also, in the Wasilla area during                                                               
the 1980s there were many areas where water was almost prohibitive                                                              
on certain lots and only a half a mile away there was an adequate                                                               
water supply.  He stated that he shares the same concerns as                                                                    
Representative Davies with regards to public involvement, but he                                                                
feels the main thing is the sanitation and health issues.  He                                                                   
stated that HB 185 is an appropriate piece of legislation and that                                                              
the APUC should not burden the public with the small water systems                                                              
and increased regulations, but the health issue needs to be                                                                     
addressed.                                                                                                                      
                                                                                                                                
REPRESENTATIVE OGAN explained that the Department of Environmental                                                              
Conservation (DEC) does not cover the health issues.  For example,                                                              
if someone moves into a subdivision and buys a house they become a                                                              
member of the homeowners association, which means suddenly they                                                                 
become a public utility.                                                                                                        
                                                                                                                                
REPRESENTATIVE BERKOWITZ pointed out that the conversation                                                                      
highlights why water was not included initially.  He said that he                                                               
would be curious about the legislative history on the subsection                                                                
and he would also like to know the impacts beyond this one                                                                      
situation in Palmer.                                                                                                            
                                                                                                                                
REPRESENTATIVE ROKEBERG wondered how many lots are in phase one and                                                             
how many are in phase two.                                                                                                      
                                                                                                                                
Number 1167                                                                                                                     
                                                                                                                                
NELSON ELLIOT, Director, Crimsonview Owners Association, testified                                                              
via teleconference from Palmer.  He stated, "We would like to thank                                                             
Mr. [Representative] Ogan for introducing this legislation and the                                                              
committee for hearing us today. ... This homeowners association and                                                             
I believe most of the others, at least in this area and probably                                                                
throughout the state, were originally set up following housing                                                                  
urban development model for community water systems.  If these                                                                  
systems require an article of incorporation and a non-profit                                                                    
corporation it's going to have covenants and bylaws, and those                                                                  
determine how the systems are owned and operated.  The systems are                                                              
self-regulating and approval of them by HUD (Housing and Urban                                                                  
Development) is required to obtain mortgages under federal                                                                      
programs, ... and these are the documents under which all of us                                                                 
here purchased our properties and our homes.  Current APUC policy,                                                              
at least informally from what we have discovered since this                                                                     
complaint was filed, is that in discussing it with APUC staff                                                                   
members, five of them have indicated to us that they do not ...                                                                 
regulate homeowners associations.  One informed the director                                                                    
(indisc. - ripping paper) APUC will not issue, because of necessity                                                             
and convenience to homeowners associations.  A staff member at APUC                                                             
indicated to one of our directors, when they called to get                                                                      
procedural information, they would not even believe that commission                                                             
decided to hear this complaint until the director had given them                                                                
the complaint, the file number for the case and they called it up                                                               
on the computer and found it.  APUC at this point has nothing in                                                                
place to regulate homeowner associations and have no guidelines.                                                                
... They have made one filing.  Their advocacy staff, in this                                                                   
particular case, has made one filing, and their recommendation is                                                               
that the commission needs to convene a (indisc.) to establish                                                                   
guidelines for these homeowner associations.  As it stands right                                                                
now the APUC policy prevents owner-operated systems, such as this,                                                              
from complying with the statutes or (indisc.) from regulation, and                                                              
there are no guidelines for regulations to follow that would                                                                    
provide us with reasonable assurance of protection from even                                                                    
frivolous complaints.  If APUC hold that they have the right to                                                                 
regulate these homeowner associations, do they not have a statutory                                                             
responsibility to do so?  What statutory authority do they have to                                                              
nullify our (indisc.) covenants and bylaws under which we purchased                                                             
our property.  If they regulate us then the provisions in those                                                                 
documents would be basically out the window; we'd have to rewrite                                                               
them."                                                                                                                          
                                                                                                                                
Number 0950                                                                                                                     
                                                                                                                                
MR. ELLIOT further stated, "Currently, APUC indicates that there                                                                
are approximately 700 class A water systems in the state of Alaska.                                                             
It would be curious to know how many of those does APUC regulate                                                                
and do they have the staff and budget resources to regulate all of                                                              
them.  Again, if the systems fall under their regulatory authority,                                                             
do they not have the responsibility to establish clear room for                                                                 
regulation and or attention.  Our only means of revenue are through                                                             
our annual and special assessment.  If APUC regulates us, this                                                                  
association has no way of raising funds to meet the emergency                                                                   
situation if reserve funds are insufficient to cover the cost.  We                                                              
would have to file for relief through a (indisc.) and rate process                                                              
prior to being able to collect any money; financial flexibility                                                                 
would be lost. ... Utilities grossing less than $50,000 annually                                                                
had to limit their subscriber base.  The cost of regulation by APUC                                                             
would dramatically increase consumer costs.  In our case, we would                                                              
no longer be able to manage the water systems.  We would have to                                                                
contract with a management firm at a (indisc.).  This coupled with                                                              
the APUC fees for regulation could easily double the cost of our                                                                
operation.  This homeowners association is only two years old and                                                               
we've had very little time to continually preserve.  Most of those                                                              
have currently been eroded in legal costs associated with this                                                                  
complaint.  The idea of regulation by complaint is a very expensive                                                             
and slow process.  The issues, as far as CVOA [Crimsonview Owners                                                               
Association] and the developer, that are in this suit really are                                                                
not relevant.  We feel that this legislation would present                                                                      
unnecessary costs associated with regulation, leave all of the                                                                  
articles, covenants and bylaws of the homeowners associations                                                                   
throughout the state intact and still provide protection to the                                                                 
subscribers and exempt utilities that opt for APUC regulation by                                                                
vote of members in the same hands that the Copper Valley Electric                                                               
Association opted out."                                                                                                         
                                                                                                                                
Number 0778                                                                                                                     
                                                                                                                                
CHAIRMAN HUDSON pointed out that the whole discussion brings up the                                                             
interrelationship between the Alaska Department of Environmental                                                                
Conservation (ADEC) and APUC and water and sewer.  He said that it                                                              
makes him wonder if they should have one or the other, but not                                                                  
necessarily both.  He asked Mr. Elliot if they deal with ADEC as                                                                
well.                                                                                                                           
                                                                                                                                
MR. ELLIOT stated that ADEC does regulate the water systems and                                                                 
they are required to do monthly testing for E. Coli bacteria, as                                                                
well as, other periodic tests.  Also, any engineering on the                                                                    
systems requires approval by ADEC.  He indicated that there is                                                                  
considerable regulation that they have to comply with and do comply                                                             
with as far as ADEC is concerned.                                                                                               
                                                                                                                                
REPRESENTATIVE DAVIES requested clarification on what the dispute                                                               
is here.                                                                                                                        
                                                                                                                                
MR. ELLIOT clarified that the original subdivision was set up with                                                              
46 lots.  The original engineering that went to the ADEC for the                                                                
approval of the water system was very specific.  It requested                                                                   
engineering approval for 50 or less units.  That is the                                                                         
construction approval that they got from the ADEC and that is what                                                              
this system is currently approved for.  With regards to the water                                                               
rights associated with the well, the only thing ever applied for                                                                
was the 46 units that are currently subdivided.  The property that                                                              
the current developer would like to develop as phase two of this                                                                
property was never subdivided and is roughly an 11.5 acre piece of                                                              
land.  The developer now wants to subdivide it and use the water                                                                
system for it.  The original concept for the subdivision was that                                                               
fact would be part of the subdivision.  The original engineering,                                                               
by the original developers, engineers and approved by the APUC,                                                                 
very specifically delineates what would be done to the system to                                                                
operate it to meet the needs of that property if developed.  The                                                                
homeowners association, in discussions with the developer, had                                                                  
asked for nothing engineered that was not in that original                                                                      
engineering by the ADEC.  The developer simply does not want to                                                                 
comply with the original engineering.                                                                                           
                                                                                                                                
Number 0480                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ asked if the committee is going to hear                                                                
from the developer as well.                                                                                                     
                                                                                                                                
Number 0449                                                                                                                     
                                                                                                                                
REBECCA PAULI, Attorney, Birch, Horton, Bittner and Cherot,                                                                     
testified via teleconference from Anchorage.  She stated that their                                                             
firm represents Robert Mellish in his Complaint against The                                                                     
Crimsonview Owners Association.  She indicated that Countrylane                                                                 
Estates demonstrates how well the current system works.  In that                                                                
case a lender requested a declaratory judgement as to whether the                                                               
homeowners association would be a public utility under state                                                                    
statute.  The commission said that they would be and they need a                                                                
statutory definition of a public utility, which is service to ten                                                               
or more people for compensation.  Then the APUC recognized that the                                                             
association has many of the hallmarks of a cooperative and it would                                                             
not benefit the public to have the association economically                                                                     
regulated.  Under the statute AS 42.05.711(D) provided the                                                                      
association with a public interest exemption, while repeating                                                                   
jurisdiction to hear disputes that may arise.  She said that is one                                                             
of their primary concerns with HB 185, is that in exempting water                                                               
utilities the only form left to resolve a dispute is the court                                                                  
system, which is much more expensive and time consuming than the                                                                
APUC.  Secondly, she feels it is important that the committee                                                                   
understand that the situation that gave rise to this is that Mr.                                                                
Mellish will be a member of the association as will the individuals                                                             
that purchase the 22 homes.  She wanted to relay Mr. Mellish's                                                                  
experience in attempting to obtain water service.  Even though HB
185 appears fairly benign, it raises the question of why not throw                                                              
in all the other public utility services as well.  She thinks that                                                              
the reason for that is there are health and safety concerns that                                                                
certain types of utilities have very broad reaching social impacts.                                                             
                                                                                                                                
MS. PAULI further stated:                                                                                                       
                                                                                                                                
     Over the past two years Mr. Mellish has attempted to work                                                                  
     with the Association regarding his development of phase                                                                    
     two of the Crimsonview Subdivision.  The association has                                                                   
     been both unreasonable and unfair in its demands of Mr.                                                                    
     Mellish.  If HB 185 passes, Mr. Mellish's frustrating and                                                                  
     time-consuming experiences will become routine for other                                                                   
     developers.  As discussed below, we believe HB 185 is                                                                      
     both anti-consumer and anti-development.  First, I am                                                                      
     going to provide a brief background that will provide you                                                                  
     with an overview of Mr. Mellish's experience and then I'm                                                                  
     going to address why we believe this is unnecessary                                                                        
     reactive legislation.  Then finally, I'm going to suggest                                                                  
     a couple of solutions.  Following is a summary of the                                                                      
     undisputed facts as admitted by the Association in their                                                                   
     Answer to Robert Mellish's Complaint.  The Crimsonview                                                                     
     Subdivision was designed and platted to be developed in                                                                    
     two phases.  Phase one consists of 47 lots and phase two                                                                   
     consists of 22 lots.  There is a community well and an                                                                     
     integrated loop distribution water system that was                                                                         
     designed to serve both phase one and phase two.  So,                                                                       
     presently on these 22 lots you have a distribution system                                                                  
     that is connected to the well at phase one.  The note on                                                                   
     the official platt provides that lot 11, block one of                                                                      
     phase one of this platt is the site of the community well                                                                  
     system, and will be exclusively used as such until such                                                                    
     time a connection of the subdivision's designed water                                                                      
     system to a possible city water system.  At which time                                                                     
     the community well will be abandoned.  As required by the                                                                  
     platt note, in 1984 phase one was developed with 46 lots                                                                   
     for single family residents and one lot for the community                                                                  
     well.  In 1985 the water system was completed and this is                                                                  
     when the integrated loop distribution network was                                                                          
     installed.                                                                                                                 
                                                                                                                                
TAPE 99-18, SIDE A                                                                                                              
                                                                                                                                
MS. PAULI continued:                                                                                                            
                                                                                                                                
     ... charge Mr. Mellish and they continue to control the                                                                    
     water.  When Mr. Mellish was ready to develop phase two,                                                                   
     he was very conscientious and wanted to do it right, so                                                                    
     he hired the original engineering firm, that designed the                                                                  
     water system, to determine whether the existing system                                                                     
     under state standards would be adequate, and the original                                                                  
     engineering firm said they were.  It's undisputed by all                                                                   
     the engineers that the aquifer is more than sufficient to                                                                  
     supply water to all 68 lots.  The only thing that is not                                                                   
     sufficient is the pressure, which is equally resolved by                                                                   
     just adding that 2 horse power pump.  However, Mr.                                                                         
     Mellish being very cautious hired a second engineering                                                                     
     firm to review the original engineering firms conclusion                                                                   
     that the distribution system was adequate.  Upon                                                                           
     confirmation, Mr. Mellish informed the association of                                                                      
     plans to develop the 22 lots and this development would                                                                    
     necessitate the operation of a water distribution system.                                                                  
     ... Throughout 1997 Mr. Mellish performed extensive work                                                                   
     to bring phase two into compliance with the                                                                                
     Matanuska-Susitna Borough subdivision requirements and he                                                                  
     hired Alaska Rim to design any necessary upgrade to the                                                                    
     system and address any association concerns.                                                                               
     Specifically the association was concerned about whether                                                                   
     they would have adequate water to water their lawns.                                                                       
     Alaska Rim prepared a proposal to satisfy APUC                                                                             
     requirements and propose that the associations concerns                                                                    
     be addressed for the scheduling of lawn watering.  Now,                                                                    
     to address the association's concerns about the pressure                                                                   
     on the well, Mr. Mellish proposed to furnish and install                                                                   
     a 2 horse power booster pump and he also offered to                                                                        
     provide and install the multi-function automatic dialer,                                                                   
     which would monitor the systems operation, and                                                                             
     immediately report any deviation from the norm.  ...                                                                       
     Finally, he was willing to establish and fund and escrow                                                                   
     account to cover the capital costs of a 10 horse power                                                                     
     pump that would be more than adequate to provide peak                                                                      
     capacity to replace the existing pump and booster that                                                                     
     should fail in the future.  Warrant to ultimately                                                                          
     increase the systems capacity.  Once again it's                                                                            
     undisputed that the existing distribution system is                                                                        
     adequately sized to serve all 68 lots.                                                                                     
                                                                                                                                
CHAIRMAN HUDSON asked Ms. Pauli if she could focus on the intent of                                                             
the bill.                                                                                                                       
                                                                                                                                
MS. PAULI continued:                                                                                                            
                                                                                                                                
     What this is important for, is to show you that this is                                                                    
     before the APUC ever got involved.  Mr. Mellish made                                                                       
     three different proposals to the association.  Every time                                                                  
     the association came back and kept adding more things and                                                                  
     ultimately they wanted paved roads.  It is important to                                                                    
     let you know that this is what is going to happen if HB
     185 passes.  It was only after the association demanded                                                                    
     that Mr. Mellish install, pay for and maintain a 30,000                                                                    
     gallon water facility above ground, ... he filed a formal                                                                  
     complaint at the APUC.  Now, we filed a complaint in                                                                       
     September of 1998.  The commission set it for hearing in                                                                   
     April.  The association requested the hearing be                                                                           
     postponed, because the (indisc.) is working to their                                                                       
     favor for this development and this is what you will see                                                                   
     should this bill pass.  HB 185 is unnecessary reactive                                                                     
     legislation intended to decide the complaint before the                                                                    
     APUC and force Mr. Mellish to refile in the court system.                                                                  
     ... As you know, historically the APUC has not sought out                                                                  
     small water utilities such as homeowners associations for                                                                  
     regulation.  The APUC only becomes involved in regulation                                                                  
     when asked to do so by a consumer or a lending                                                                             
     institution.  ... The APUC retains jurisdiction to                                                                         
     resolve disputes in these situations, but grants the                                                                       
     association the public interest exemption that I                                                                           
     discussed earlier.  ... Finding for the public interest                                                                    
     exemption, the state, through its legislative body, and                                                                    
     the APUC, widely recognize that consumers must have an                                                                     
     easily acceptable and friendly forum for dispute.  The                                                                     
     most important function that the APUC provides is to                                                                       
     provide a forum where a (indisc.) or potential consumer                                                                    
     may be heard.  If HB 185 becomes law, the only recourse                                                                    
     that a (indisc.) or potential consumer will have will be                                                                   
     the court system.  ... I'd like the court system the APUC                                                                  
     has as a stated purpose to assist the consumer in                                                                          
     obtaining (indisc.) utility.  In this case, the APUC                                                                       
     staff acted as an informal mediator in an attempt to                                                                       
     achieve a solution ...                                                                                                     
                                                                                                                                
Number 0498                                                                                                                     
                                                                                                                                
REPRESENTATIVE COWDERY wondered if there is an adequate water                                                                   
supply to address this now.  He asked if it has been certified and                                                              
if there is fire protection.  He also wondered about the existing                                                               
well.                                                                                                                           
                                                                                                                                
MS. PAULI stated that Mr. Mellish agreed to provide more                                                                        
compensation than what the other homeowners were paying.  As far as                                                             
the water supply, it has been certified through their engineers and                                                             
the ADEC has approved the system.  The existing system is seven                                                                 
gallons per minute shy of being instantaneous providing peak                                                                    
demand, but a booster pump will easily resolve that.                                                                            
                                                                                                                                
REPRESENTATIVE COWDERY interjected.  He wondered about the supply                                                               
and the recovery rate, without considering the pump, has it been                                                                
certified.                                                                                                                      
                                                                                                                                
MS. PAULI replied yes.  The engineers have certified that it is                                                                 
adequate.                                                                                                                       
                                                                                                                                
Number 0641                                                                                                                     
                                                                                                                                
REPRESENTATIVE PORTER stated that he would like to address two                                                                  
issues.  One, there seems to be some dispute about whether the                                                                  
developer is or isn't meeting the original design that the original                                                             
engineer, although it be the same engineer, had designed for the                                                                
increase in the additional 27 lots.  He wondered if the engineer                                                                
changed his mind.  Two, what is it that the developer in phase two                                                              
is proposing.  He wondered if the phase one residents would be                                                                  
required to schedule their lawn watering, because of the                                                                        
implementation of phase two.  If that is the case he doesn't blame                                                              
them for resisting.                                                                                                             
                                                                                                                                
CHAIRMAN HUDSON indicated that the policy call of the committee is                                                              
pretty simple, that being, whether or not to add water to the                                                                   
$50,000 annual exemption.  It is not in all the detail that                                                                     
specifically relates to The Crimsonview Subdivision, because the                                                                
legislature does not pass legislation to try to settle a single                                                                 
issue.                                                                                                                          
                                                                                                                                
REPRESENTATIVE DAVIES stated that one of the questions they should                                                              
be asking is whether they want The Crimsonview Subdivision to be an                                                             
example of the type of disputes that do arise, and if those                                                                     
disputes should be handled in the court system or at the APUC.                                                                  
Assuming that the APUC would operate in a timely manner, would that                                                             
be a good venue.  In other instances they have looked at                                                                        
alternative dispute resolution mechanisms; they have tried to put                                                               
into place situations where disputes can be resolved without going                                                              
to court.  He argued that HB 185 should not be passed.                                                                          
                                                                                                                                
CHAIRMAN HUDSON said that is true, but he referred to Section 1                                                                 
that is being proposed, it clearly states that they are exempt from                                                             
regulation unless the subscribers petition the commission for                                                                   
regulation.  It is trying to go to something that is relatively                                                                 
small and provide the developers and the parties to be able to                                                                  
bypass the regulatory process of the APUC or use it at their                                                                    
discretion.                                                                                                                     
                                                                                                                                
Number 0894                                                                                                                     
                                                                                                                                
REPRESENTATIVE PORTER pointed out that the committee is familiar                                                                
with the processes and delays involved in APUC.  There are a myriad                                                             
of alternative dispute resolutions that are available rather than                                                               
APUC.                                                                                                                           
                                                                                                                                
Number 0964                                                                                                                     
                                                                                                                                
REPRESENTATIVE DAVIES referred to Representative Hudson's comment                                                               
that unless the subscribers petition the commission.  The problem                                                               
with that is there would have to be a majority of the existing                                                                  
property owners petitioning to come under regulation, so that the                                                               
dispute could not be resolved under the APUC and it would have to                                                               
go to court.  He wanted to draw their attention to other provisions                                                             
in statute, such as Title 29, where it talks about the general                                                                  
desirability of not forming a new service area if a service can be                                                              
provided by adding onto an existing one.  He indicated that taking                                                              
action that would not at least facilitate that kind of discussion                                                               
and dispute resolution, shy of going to the courts, is contrary to                                                              
the general intent of the statutes and the constitution.                                                                        
                                                                                                                                
Number 1050                                                                                                                     
                                                                                                                                
CHAIRMAN HUDSON announced that he was going to hold HB 185 over                                                                 
until the next meeting.                                                                                                         
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
CHAIRMAN HUDSON adjourned the House Special Committee on Utility                                                                
Restructuring meeting at 9:55 a.m.                                                                                              
                                                                                                                                

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