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South Dakota Public Utilities Commission Meeting
March 13, 2012, at 1:30 P.M. CDT
Room 413, Capitol Building
Pierre, South Dakota

MINUTES OF THE COMMISSION MEETING

Chairman Chris Nelson called the meeting to Order. Present were: Commissioner: Kristie Fiegen Commission Counsel: John Smith and Rolayne Wiest; Commission Advisor: Greg Rislov; Staff Attorneys: Karen Cremer, Ryan Soye and Kara Semmler; Staff Analysts: Ross Pedersen, Patrick Steffensen, David Jacobson, Brian Rounds, Brittany Mehlhaff, Jon Thurber, Jim Mehlhaff, and Chris Daugaard; Consumer Affairs Supervisor: Deb Gregg; and Staff: Demaris Axthelm.

Also present were: Sara Dannen, NorthWestern Corporation dba NorthWestern Energy; Ray Martinmass, Martinmaas Dairy; Bill Van Camp, Olinger, Lovald, McCahren, and Reimers, P.C., representing AT&T Communications of the Midwest, Inc.; Larry Oswald, Tami Aberle, and Carla Hahn, Montana-Dakota Utilities Co.; and Brett Koenecke, May, Adam, Gerdes, and Thompson, representing Jeff Bush.

Joining the meeting by telephone were: Commissioner: Gary Hanson; Lornie Hach, City of McLaughlin; Melissa Maher, Moreau-Grand Electric Cooperative, Inc.; Dave Semerad, West River Electric Association, Inc.; Wayne Sterkel, LaCreek Electric Association, Inc.; Dianne Munns and Chuck Rea, MidAmerican Energy Company; Talbot J. Wieczorek, Gunderson Palmer Nelson & Ashmore, LLP,  representing Sprint Communications Co., LP; Scott Swier,  Swier Law Firm, Prof. LLC, representing Wide Voice, L.L.C.; Judith Riley, Telecom Professionals, Inc., representing Impact Telecom, Inc.; Robert Beaty, Impact Telecom, Inc.; Kathy Ford, Davenport, Evans, Hurwitz, and Smith, LLP, representing Midcontinent Communications; Allen Beyers; Mary Lohnes, Midcontinent Communications; Kali Newton, representing TOTAL ACCESS TELECOM, INC.; Yvette Lafrentz, Doney Law Firm, representing Oak Tree Energy LLC;  Michael Uda, Uda Law Firm, P.C., representing Oak Tree Energy LLC; Al Brogan, NorthWestern Corporation dba NorthWestern Energy; Bart Banks, Dakota Mill and Grain; and Jeff Sveen, Siegel, Barnett, and Schutz, representing Glendale Colony.

Administration

1.     Approval of the Minutes of the Commission Meetings Held on February 14, 2012, and February 28, 2012 (Staff: Joy Irving)

     Commissioner Fiegen moved to approve the minutes of Commission Meetings held on February 14, 2012, and February 28, 2012. Motion carried 3-0.

Consumer Reports

1.     Status Report on Consumer Utility Inquiries and Complaints Received by the Commission (Consumer Affairs: Deb Gregg)

The Commission received a total of 89 contacts since the last report was prepared for the February 28, 2012 Commission meeting.

13 of the contacts involved telecommunication services, 12 of the contacts involved electrical services, 12 contacts involved natural gas service, 4 contacts involved cell phone service, 35 contacts were related to the Do Not Call Registry, 1 contact was related to the Keystone XL Pipeline and 12 contacts were related to issues not regulated by the PUC.

397 of the 417 complaints received in 2012 have been resolved.

2,759 of the 2,760 complaints received in 2011 have been resolved.

Commissioner Nelson moved EL11-006 and GW12-001 to the end of the Agenda.

Electric

1.     EL11-006     In the Matter of the Complaint by Oak Tree Energy LLC against NorthWestern Energy for refusing to enter into a Purchase Power Agreement (Staff Analysts: Chris Daugaard, Brian Rounds, Staff Attorneys: Kara Semmler, Ryan Soye)

A lengthy discussion took place regarding Oak Tree's Pre-hearing Motions and the parties' Motions to Strike and Exclude a recording of which can be found on the PUC website under Commission Actions, Commission Meeting Archives, 2012, March 13, 2012, recording located at: http://puc.sd.gov/Archives/2012/default.aspx.


     Commissioner Fiegen moved to deny NWE's Motion to Strike with respect to the Rebuttal Testimony of Richard Lauckhart, and with respect to the Rebuttal Testimony of Michael Makens except those specific statements regarding the parties' respective incurrence of litigation expenses, including but not limited to those occurring on page 2, lines 24-25, and page 16, lines 29-31, and to grant with respect to the entirety of the Rebuttal Testimony of Thomas Anson. Motion carried 3-0.

     Commissioner Fiegen moved to deny Oak Tree's Omnibus Pre-hearing Motions without prejudice on the merits for consideration following hearing. Motion carried 3-0.

     Commissioner Fiegen moved to deny Oak Tree's Motion to Exclude Testimony with respect to the testimony of Steven Lewis and to grant with respect to Bleau LaFave's Direct and Rebuttal Testimony from page 5, line 20, to page 6, line 8, and page 17, line 27, and Responsive Testimony from page 2, line 36, to page 3, line 2. Motion carried 3-0.

2.     EL12-007     In the Matter of the Request for Approval of an Electric Service Territory Boundary Agreement between Moreau Grand Electric Cooperative, Inc. and McLaughlin Municipal Electric (Staff Analyst: Ross Pedersen, Staff Attorney: Ryan Soye)

Mr. Ross Pedersen, staff analyst, stated this filing is part of the GIS mapping project to verify all South Dakota electric service territory boundaries for input in the ArcMap software. This docket was originally filed reflecting no change, however, after further review, the parties felt a change to the service territory was needed and an update was filed accordingly. The changes are represented on both maps (Exhibits B & C – as proposed by the companies), including exceptions identified. Mr. Pedersen explained that an error was discovered in the updated filing and will need to be changed on the legal description (Exhibit A) in order to have it accurately reflect what is on the corresponding map (Exhibit B). The error concerns the wrong street name identified in the legal description the tenth point of the legal description which needs to change from "to the centerline of 3rd Avenue W" to "2nd Street W". As such, Staff requests approval of the electric service territory agreement with the stipulation that a corrected legal description be filed.

     Commissioner Fiegen moved to approve the proposed electric service territory boundary amended agreement with the stipulation that an amended Exhibit A be filed deleting "3rd Avenue West" and inserting "2nd Street West". Motion carried 3-0.

Commissioner Nelson stated that EL12-014, EL12-015, and EL12-06 would be heard together.

3.     EL12-014     In the Matter of the Request for Approval of an Electric Service Territory Boundary Agreement between Moreau Grand Electric Cooperative, Inc. and West Central Electric Cooperative, Inc. (Staff Analyst: Ross Pedersen, Staff Attorney: Ryan Soye)
        
4.     EL12-015     In the Matter of the Request for Approval of an Electric Service Territory Boundary Agreement between West Central Electric Cooperative, Inc. and West River Electric Association, Inc. (Staff Analyst: Ross Pedersen, Staff Attorney: Ryan Soye)

5.     EL12-016     In the Matter of the Request for Approval of an Electric Service Territory Boundary Agreement between West Central Electric Cooperative, Inc. and LaCreek Electric Association, Inc. (Staff Analyst: Ross Pedersen, Staff Attorney: Ryan Soye)

Mr. Ross Pedersen, staff analyst, stated these filings are part of the GIS mapping project to verify all South Dakota electric service territory boundaries for input in the ArcMap software. Except for one very minor change to clarify the boundary in Section 25, in T7N, R18E in Docket EL12-015, the agreements do not change service provider, but may effect updates to incorrect mapping data. Staff requested approval of the electric service territory boundary agreements in Dockets EL12-014, EL12-015, and EL12-016.

     Commissioner Hanson moved to approve the proposed electric service territory boundary agreement in dockets EL12-014, EL12-015, and EL12-016.  Motion carried 3-0.

Gas & Electric

1.     GE12-002     In the Matter of the Filing by MidAmerican Energy Company for the Approval of Its Reconciliation for 2011 and its Proposed Energy Efficiency Plan for 2012 (Staff Analysts: Brian Rounds, Ross Pedersen, Staff Attorneys: Kara Semmler, Ryan Soye)

Mr. Chuck Rea, MidAmerican Energy, requested the Commission approve MidAmerican's reconciliation for 2011 and its proposed Energy Efficiency Plan for 2012. Mr. Brian Rounds, staff analyst, recommended the Commission grant approval.

     Commissioner Hanson moved to approve MidAmerican's Energy Efficiency 2011 Annual Report and Reconciliation on less than 30-day notice to the Commission. Motion carried 3-0.

         Commissioner Hanson moved to approve the 2012 Energy Efficiency Plan Update and Tariff Revisions, effective April 2, 2012, on less than 30-day notice to the CommissionMotion carried 3-0.
                    
Grain Warehouse

Commissioner Hanson recused himself from docket GW12-001 because of a possible personal interest.

1.     GW12-001     In the Matter of Anderson Seed Co. Inc.'s Grain Buyer's License (Staff Analyst: Jim Mehlhaff, Staff Attorney: Kara Semmler) 
           
A lengthy discussion took place regarding whether the Commission should revoke the grain buyer's license and/or take any other necessary action, a recording of which can be found on the PUC website under Commission Actions, Commission Meeting Archives, 2012, March 13, 2012; recording located at: http://puc.sd.gov/Archives/2012/default.aspx.

     Commissioner Nelson moved to revoke Anderson's grain buyer license pursuant to SDCL 49-45-16. Motion carried 2-0.

     Commissioner Nelson moved to seek receivership in Spink County pursuant to SDCL 49-45-16.1 as expeditiously as possible for the purpose of administrating the claims process against Anderson's grain buyer bond and bond proceeds distribution. Motion carried 2-0.

     Commissioner Nelson moved to seek receivership of Anderson's grain inventory, processed grain inventory, and other assets located in South Dakota, including recently transferred or assigned assets, and proceeds from the sale or liquidation of such assets, pending determination by the Court as to the rights of sellers and other creditors to such assets and proceeds or until another structure or process is in place for the preservation of such assets and proceeds pending the conclusion of the claims and litigation process against Anderson. Motion carried 2-0.

Natural Gas

1.     NG11-006     In the Matter of the Filing by Montana-Dakota Utilities Co. for Approval of its Revised Conservation Tracking Adjustment (Staff Analysts: Brian Rounds, Chris Daugaard, Staff Attorney: Karen Cremer)

Ms. Tami Aberle, Montana Dakota Utilities, asked the Commission for approval of its revised Conservation Tracking Adjustment (CTA). Mr. Brian Rounds, staff analyst, recommended approval of the tariff revision to update MDU's CTA pursuant to the terms of its Conservation Program Tracking Mechanism Rate 90 tariff and to approve the proposed portfolio of Natural Gas Conservation Programs to be effective for calendar years 2012-2014 pursuant to its Conservation Program Tracking Mechanism Rate 90 tariff.

     Commissioner Hanson moved to grant Montana-Dakota Utilities Co.'s request for approval of the Revised Conservation Program Tracking Mechanism Rate 90 Tariff effective April 1, 2012. Motion carried 3-0.

     Commissioner Nelson moved to grant Montana-Dakota Utilities Co.'s request for approval of its 2012 portfolio effective April 1, 2012 with the exception of the furnace tune-up. Motion carried 3-0.

Telecommunications

1.     TC11-088     In the Matter of the Application of Wide Voice, L.L.C. for a Certificate of Authority to Provide Local Exchange Services in South Dakota (Staff Analyst: Jon Thurber, Staff Attorney: Karen Cremer)

Mr. Scott Swier, representing Wide Voice, stated that Wide Voice had filed its Notice of Dismissal Without Prejudice.  Ms. Karen Cremer, staff attorney, recommended the Commission dismiss and close the docket.

     Commissioner Fiegen moved to dismiss without prejudice and close the docket. Motion carried 3-0.

2.     TC12-015     In the Matter of the Application of Impact Telecom, Inc. for a Certificate of Authority to Provide Interexchange Long Distance Services in South Dakota (Staff Analyst: Brittany Mehlhaff, Staff Attorney: Kara Semmler)

Ms. Judith Riley, Impact Telecom, requested a Certificate of Authority from the Commission. Impact Telecom, Inc. intends to provide resale interexchange Long Distance Services in South Dakota. Ms. Brittany Mehlhaff, staff analyst, stated that Impact Telecom filed an application for a certificate of authority to provide interexchange services in South Dakota, according to the Commission's administrative rules. Staff recommended the Commission grant the Certificate of Authority to Impact Telecom, with the condition that, for retail purposes, Impact Telecom not offer any prepaid services, including prepaid calling cards, and not accept or require any deposits or advance payments without prior approval of the Commission.

     Commissioner Nelson moved to grant the Certificate of Authority to Impact Telecom, Inc. with staff's conditions. Motion carried 3-0.

3.     TC12-023     In the Matter of the Request for a Declaratory Ruling by Allen Beyers Regarding the Application of SDCL 49-32-6 to a Midcontinent Communications Line in Ipswich, S.D. (Staff Analyst: Deb Gregg, Staff Attorney: Kara Semmler)
        
Ms. Kathy Ford, representing Midcontinent Communications, requested dismissal of the request, arguing the line in question is not a "telecommunications facility" as referenced in SDCL 49-32-6 and that the Commission lacks jurisdiction to decide the matter. Ms. Kara Semmler, staff attorney, argued the Commission does not have jurisdiction and the request should be dismissed.

     Commissioner Hanson moved that the Commission doesn't have jurisdiction to issue a ruling and to dismiss the request. Motion carried 3-0.

4.     TC12-024     In the Matter of the Application of TOTAL ACCESS TELECOM, INC. for a Certificate of Authority to Provide Interexchange Long Distance Services in South Dakota (Staff Analyst: David Jacobson, Staff Attorney: Kara Semmler)

Ms. Kali Newton, TOTAL ACCESS TELECOM, INC. asked the Commission to grant a Certificate of Authority for TOTAL ACCESS TELECOM INC. to provide Interexchange Telecommunications Services in South Dakota. Mr. David Jacobson, staff analyst, stated TOTAL ACCESS TELECOM INC. filed an application for a certificate of authority to provide interexchange services in South Dakota, according to the Commission's administrative rules. Staff recommends the Commission grant the Certificate of Authority to TOTAL ACCESS TELECOM INC, with the condition that, for retail purposes, TOTAL ACCESS TELECOM INC. not offer any prepaid services, including prepaid calling cards, and not accept or require any deposits or advance payments without prior approval of the Commission.

     Commissioner Nelson moved to grant the Certificate of Authority to TOTAL ACCESS TELECOM, INC. Motion carried 3-0.

There being no further business, at the hour of 5:45 p.m. the South Dakota Public Utilities Commission meeting adjourned. The next Commission meeting is scheduled for March 27, 2012.

 

/S/Joy Irving
Joy Irving
Administrative Assistant
puc@state.sd.us
March 13, 2012