H-1164.1  _______________________________________________

 

                          HOUSE BILL 1652

          _______________________________________________

 

State of Washington      55th Legislature     1997 Regular Session

 

By Representatives Crouse, Pennington, Morris, Kessler, DeBolt, Robertson and Grant

 

Read first time 02/04/97.  Referred to Committee on Energy & Utilities.

Enacting the electric customer choice act.


    AN ACT Relating to the electric utility industry; amending RCW 80.12.020, 80.12.040, 80.24.010, 80.28.020, and 80.28.050; reenacting and amending RCW 42.17.310; and adding a new chapter to Title 80 RCW.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

    NEW SECTION.  Sec. 1.  (1) The legislature finds that:

    (a) The traditional forms of electric utility regulation have stifled competition, produced inefficient and disparate rates for electricity, and discouraged technological innovation.

    (b) The cost of electricity is an important monthly expenditure for many households and is of increasing significance to businesses and industries, which compete in a sophisticated interstate and international marketplace.  Restructuring the electrical utility industry in the manner described in this chapter will provide for more consumer choice and will provide an orderly transition from regulation to a more efficient and competitive environment.

    (c) Many of the changes now underway in the electrical utility industry have occurred as a result of federal legislation that requires utilities to open up their interstate transmission lines to other users on a nondiscriminatory basis.

    (d) It is in the interests of all Washington consumers to have a state-wide framework that is compatible with federal developments.  The goal of this new structure is to provide competitive, low-cost, and reliable electric service to all of the state's residents and businesses.

    (2) The legislature intends to:

    (a) Allow all retail electric customers to select their electricity supplier of choice no later than July 1, 1999;

    (b) Permit new entities, including power marketers and others, to sell electricity directly to retail electric customers;

    (c) Impose on electric utilities an obligation, similar to a common carrier, to provide nondiscriminatory and nonpreferential service in operating electric distribution facilities;

    (d) Preserve the obligations of electric utilities to operate safe and reliable distribution facilities;

    (e) Retain local control over publicly owned utilities and cooperatives that distribute electricity to retail customers;

    (f) Establish procedures and deadlines for utilities;

    (g) Ensure that the benefits of a competitive market are enjoyed by all customer classes;

    (h) Provide electric utilities with a reasonable opportunity to recover a portion of their uneconomic utility investments during a five-year period;

    (i) Deregulate the pricing of electric generation for electrical companies after July 1, 1999, to allow sellers and buyers to negotiate market-based transactions;

    (j) Maintain regulation of rates for local distribution facilities and ancillary services, and prohibit a utility from shifting unrelated costs onto the rates of its distribution facilities and ancillary services;

    (k) Permit customers to aggregate or pool their purchases; 

    (l) Adopt consumer information provisions to ensure that all customers receive itemized bills with unbundled rates; and

    (m) Provide retail electric customers with sufficient information to enable them to compare and select among products and services in the electricity market.

 

    NEW SECTION.  Sec. 2.  This chapter shall be known and may be cited as the electric customer choice act.

 

    NEW SECTION.  Sec. 3.  The definitions in this section apply throughout this chapter unless the context clearly indicates otherwise.

    (1) "Aggregator" means an entity that combines retail electric customers into a group for the purpose of purchasing electricity and related services.

    (2) "Ancillary services" means scheduling, reactive power, voltage control, and other services that allow a retail electric customer to use distribution facilities and that are not subject to the exclusive jurisdiction of the federal energy regulatory commission.  "Ancillary services" does not include long-term emergency or backup power to replace the loss of generation resources or to cover that portion of a customer's load that exceeds generation supply.

    (3) "Commission" means the utilities and transportation commission.

    (4) "Direct access" means the right of all retail electric customers and electricity service suppliers to interconnect with and use distribution facilities on a nondiscriminatory basis to transport electricity from any source by or on behalf of any retail electric customer.  "Direct access" is also known as "retail wheeling."

    (5) "Distribution facilities" means the equipment and infrastructure used to deliver electricity to retail electric customers, except a transmission facility.

    (6) "Electrical company" means a company owned by investors that meets the definition of RCW 80.04.010.

    (7) "Electric cooperative" means a cooperative or association organized under chapter 23.86 RCW.

    (8) "Electric utility" means any electrical company, public utility district, electric cooperative, or municipal electric utility, that is engaged in the business of distributing electricity to retail electric customers in the state.

    (9) "Electricity" means electric energy, measured in kilowatt hours, or electric capacity, measured in kilowatts.

    (10) "Electricity service supplier" means any person or entity that sells electricity to more than one retail electric customer, including but not limited to electric utilities, aggregators, marketers, brokers, independent power producers, or other municipal or state authorities.

    (11) "Generating asset" means the plant and equipment needed to generate electricity;

    (12) "Governing body" means the board of directors; the council of a city or town; or the commissioners of an electric cooperative, municipal electric utility, or public utility district, respectively, that has the authority to set and approve rates.

    (13) "Load" means the amount of electricity delivered or required by a retail electric customer at a specific point of delivery.

    (14) "Market-based rate" means the rate for electricity that an electrical company is required to offer pursuant to section 9 of this act.

    (15) "Municipal electric utility" means a city or town that owns and operates an electric utility authorized by chapter 35.92 RCW.

    (16) "Public utility district" means a district authorized by chapter 54.04 RCW that sells electricity to retail electric customers.

    (17) "Retail electric customer" means any person or entity, including but not limited to a residential, commercial, and industrial consumer, that purchases electricity for ultimate consumption and not for resale.

    (18) "State" means the state of Washington.

    (19) "Transition charge" means a charge or fee that recovers a portion of an uneconomic utility investment and that is levied only during the transition period on the bill of a retail electric customer who purchases direct access service or who purchases electricity at the market-based rate.

    (20) "Transition period" means the period beginning July 1, 1999, and ending no later than June 30, 2004.

    (21) "Transmission facility" means plant and equipment used to transmit electricity in interstate commerce and whose rates, terms, and conditions are subject to the exclusive jurisdiction of the federal energy regulatory commission.

    (22) "Undue market power" means the unfair or improper exercise of influence to increase or decrease the availability and price of a service or product in a manner inconsistent with competitive markets.

    (23) "Uneconomic utility investment" means generating assets, conservation investments, and contractual obligations that were entered into in good faith by an electric utility before July 11, 1994, and  that were prudent at the time the obligations were assumed, but that are no longer economic as a direct result of implementation of this chapter.  "Uneconomic utility investment" does not include costs or expenses disallowed by the commission in a prudence review or other proceeding, but only to the extent of such a disallowance, nor does it include fines or penalties as authorized by this chapter or by another statute.

 

    NEW SECTION.  Sec. 4.  (1) Notwithstanding any other provision of law, every retail electric customer has the right no later than July 1, 1999, to:  (a) Choose one or more electricity service suppliers to serve all or a portion of its load; and (b) choose the quality and nature of electricity service, including but not limited to different product and pricing options from one or more electricity service suppliers.

    (2) If the schedules for implementing the requirements of this chapter, including but not limited to the deadlines for commission rulemaking, are delayed for any reason, the July 1, 1999, deadline is not affected and remains in effect.

    (3) No later than July 1, 1999, every retail electric customer has the right to interconnect with and use the distribution facilities of any electric utility on a nondiscriminatory basis to transport electricity from any electricity service supplier to the customer at rates that comply with section 7 of this act.

 

    NEW SECTION.  Sec. 5.  By July 1, 1999, every electricity service supplier has the right to interconnect with or use, or both, the distribution facilities of an electric utility on a nondiscriminatory basis to transport electricity from any source to any retail electric customer at rates that comply with section 7 of this act.

 

    NEW SECTION.  Sec. 6.  (1) If a retail electric customer has not chosen a new electricity service supplier no later than July 1, 1999, the existing electric utility shall continue as that customer's supplier and shall maintain its obligation to serve that customer, pursuant to section 24 of this act.

    (2) Nothing in this chapter diminishes or reduces the default supplier's statutory obligation to low-income residential customers, including but not limited to the restrictions on termination of service contained in RCW 80.28.010, 35.21.300 and 54.16.285.

 

    NEW SECTION.  Sec. 7.  (1) Every electric utility shall offer unbundled rates, terms, and conditions for the use of its distribution facilities and for ancillary services.  Any retail electric customer may purchase ancillary services from third parties if such services are available.

    (2) The commission shall set rates for the use of electrical company distribution facilities and ancillary services that are based on embedded cost-of-service methods and that are just, fair, reasonable, and sufficient.  The commission shall ensure that the utility's costs, including but not limited to overhead directly attributable to distribution facilities and ancillary services, are allocated accurately among the various classes of customers without shifting costs from one class to another.  Nothing in this subsection prevents the commission from approving incentive or performance-based ratemaking to reduce such costs.

    (3) The governing body of a public utility district, municipal electric utility, or electric cooperative shall set rates for the use of distribution facilities and ancillary services that are based on embedded cost-of-service methods and that are just, fair, reasonable, and sufficient.  The governing body shall ensure that the utility's costs, including but not limited to overhead directly attributable to distribution facilities and ancillary services, are allocated accurately among the various classes of customers without shifting costs from one class to another.  Nothing in this subsection prevents the governing body from approving incentive or performance-based ratemaking to reduce such costs.

    (4) Every retail electric customer has the option to purchase and install its own metering and interconnection facilities that meet standard utility specifications, in which case the customer shall not be required to purchase and pay for those facilities from the electric utility.

 

    NEW SECTION.  Sec. 8.  After July 1, 1999, the commission shall not set the rates, terms, or conditions for the sale of electricity from generating assets owned by electrical companies.  If, however, an electrical company offers direct access prior to that date, the commission may accelerate the deregulation of generating assets to match the date the company offers direct access, but nothing in this section reduces or limits the commission's authority to review electrical company rates for distribution facilities and ancillary services.

 

    NEW SECTION.  Sec. 9.  (1) The legislature intends for every electrical company to offer a market-based rate for retail electric customers, primarily residential and small businesses, who wish to purchase full-requirements electric service from the company.  Each electrical company shall offer a market-based rate that allows customers to continue purchasing electricity from their existing utility but permits them to take advantage of market conditions.

    (2) Between July 1, 1999, and June 30, 2004, every electrical company shall offer a market-based rate to its retail electric customers.  The market-based rate must equal:  (a) The market rate for the commodity cost of wholesale power, as posted at a valid delivery point and published in a commercial or trade publication; (b) the cost of distribution facilities and ancillary services, approved pursuant to section 7 of this act, and transmission services; (c) the remaining cost to the utility to deliver the electricity to its loads, including but not limited to character of service adjustments, reserves, and other items needed to provide reliable service to retail electric customers; and (d) the transition charge, if any.  Nothing in this section prohibits an electrical company from offering additional rate schedules, products, or services to its customers, if it so chooses.

    (3) No later than January 1, 1999, the commission shall approve rates for items in (2)(c) of this section that are just, fair, reasonable, and sufficient.

 

    NEW SECTION.  Sec. 10.  A new customer of any electric utility has the same right as an existing customer to interconnect with and use the utility's distribution facilities, and the utility shall not discriminate against or grant preferential treatment to the new customer in the use of its facilities.

 

    NEW SECTION.  Sec. 11.  (1) The commission has the authority before July 1, 1999, to approve pilot programs for direct access with retail electric customers of individual electrical companies.  Such programs must help ensure that full implementation of this chapter is achieved by July 1, 1999.

    (2) The governing body of a public utility district, municipal electric utility, or electric cooperative has the authority prior to July 1, 1999, to approve pilot programs for direct access with retail electric customers.  Such programs must help ensure that full implementation of this chapter is achieved by July 1, 1999.

 

    NEW SECTION.  Sec. 12.  In addition to rights under existing statute, every retail electric customer has the right to self-generate or to purchase or otherwise use electricity directly from generators located at or near their load and to interconnect with transmission and distribution facilities without the imposition of the transition charge or any other noncost-related payment on self-generated electricity.

 

    NEW SECTION.  Sec. 13.  Before July 1, 1999, every electric utility that uses the distribution facilities of another electric utility to deliver electricity to or on behalf of a retail electric customer shall provide reciprocal services on its distribution facilities to any electricity service supplier or retail electric customer, if so requested.

 

    NEW SECTION.  Sec. 14.  Every electric utility has an obligation to mitigate uneconomic utility investments through contract negotiations, buy outs, buy downs, and other cost control or cost containment measures.  The commission may adopt rules establishing standards for mitigation for electrical companies, but shall do so not later than January 1, 1998, to coincide with commission rulemaking on uneconomic utility investments pursuant to section 15 of this act.

 

    NEW SECTION.  Sec. 15.  (1) By January 1, 1998, the commission shall adopt by rule a uniform methodology for calculating uneconomic utility investments for electrical companies.  The methodology must provide a means to:  (a) Establish the net value of the utility's entire portfolio of generating assets, conservation investments, and contractual obligations, when considered as a group; and (b) allocate uneconomic utility investments fairly and accurately among various customer classes without shifting costs from one class to another.

    (2) By January 1, 1998, the governing body of a public utility district, municipal electric utility, or electric cooperative shall determine whether or not it has any uneconomic utility investments.  If it finds that it has such investments, the governing body shall hold one or more public, evidentiary hearings in which it shall adopt a methodology to:  (a) Establish the net value of the utility's entire portfolio of generating assets, conservation investments, and contractual obligations, when considered as a group; and (b) allocate uneconomic utility investments fairly and accurately among various customer classes without shifting costs from one class to another.

 

    NEW SECTION.  Sec. 16.  (1) By July 1, 1998, each electrical company shall prepare and submit to the commission an implementation plan with the following elements:  (a) The proposed tariffs, terms, and conditions for direct access and ancillary services; (b) the identification of uneconomic utility investments, if any; (c) the steps the electrical company has taken to mitigate the impacts of any uneconomic utility investments; and (d) the calculation of transition charges, if any.

    (2) By July 1, 1998, each public utility district, municipal electric utility, and electric cooperative shall submit an implementation plan to its governing body that contains the elements of subsection (1)(a) through (d) of this section.

    (3) By November 1, 1998, the commission shall accept or modify the implementation plan, including the tariffs, to ensure that the nondiscriminatory and nonpreferential terms of direct access are implemented.  The commission shall hold one or more public hearings before taking final action on the implementation plan.

    (4) By November 1, 1998, the governing body of a public utility district, municipal electric utility, or electric cooperative shall approve an implementation plan, including the tariffs, to ensure that the nondiscriminatory and nonpreferential terms of direct access are implemented.  The governing body shall hold one or more public hearings before taking final action on the implementation plan.

 

    NEW SECTION.  Sec. 17.  (1) No later than January 1, 1999, every electric utility shall:  (a) Separate its generation, transmission, and distribution assets and operations to accurately assess the costs of utility functions and to allow for fair and accurate pricing of unbundled services; and (b) publish separate rates, terms, and conditions for at least the following unbundled products and services:  Electricity; ancillary services; and direct access to distribution facilities.

    (2) No later than July 1, 1999, every electric utility shall provide direct access to any retail electric customer or electricity service supplier and shall, to the extent permitted by federal law, also provide retail electric customers and electricity service suppliers with access to its transmission facilities.

 

    NEW SECTION.  Sec. 18.  After July 1, 1999, or when an electric utility offers direct access, whichever is sooner, the utility shall:  (1) Provide to electricity service suppliers comparable access to its distribution facilities, as it would for its own use; (2) provide to electricity service suppliers comparable access to information about its distribution facilities, metering, and loads, as it would to its own divisions or affiliates; and (3) refrain from granting to its generating or transmission operations any access to or information about its distribution facilities that is not provided to electricity service suppliers and retail electric customers.

 

    NEW SECTION.  Sec. 19.  (1) The legislature intends to create a mechanism that allows electrical utilities to recover a portion of their uneconomic utility investments, if they were made in good faith and were prudent at the time the obligations were assumed.  Only investments made before July 11, 1994 are eligible.  That date is used by the federal energy regulatory commission at the wholesale level to allow for the recovery of uneconomic utility investments in transmission rates.

    The legislature further intends to allow differential treatment between electrical companies, owned by investors, and other utilities, such as public utility districts, municipal electric utilities, and electric cooperatives, owned by consumers.

    The management of electrical companies had considerable discretion in deciding which generating assets to build or acquire and at what cost.  Shareholders have benefited over the years by many of these decisions.  To the extent that the utility now has uneconomic utility investments, it would be unfair to burden only customers with the obligation to pay for these uneconomic assets and investments.

    The legislature concludes it is reasonable for both shareholders and customers to split the net costs, if any, of the utility's uneconomic utility investments for a five-year period, with shareholders and customers each paying for the net cost of fifty percent of these assets, after the utility has mitigated its costs and otherwise complied with this chapter.

    For consumer-owned utilities, which have no shareholders, the legislature has determined that a one hundred percent recovery is appropriate, after the utility has mitigated its costs and otherwise complied with this chapter. 

    (2) An electric utility may, in accordance with this section, levy a transition charge not to exceed five years in duration to recover a portion of its uneconomic utility investments.  The utility shall calculate the transition charge in compliance with the methodology in section 15 of this act.  The transition charge is to be levied on the bill of retail electric customers who purchase direct access service or who purchase electricity at the market-based rate.

    (3) No electric utility shall levy a transition charge unless and until it has adopted nondiscriminatory and nonpreferential tariffs, terms, and conditions for direct access and ancillary services, and otherwise complied with the terms of this chapter, nor shall an electric utility levy such a charge under any circumstance after June 30, 2004.

    (4) Each electrical company may recover in a transition charge fifty percent of the net, verifiable costs of its uneconomic utility investments that cannot be mitigated.  The shareholders of an electrical company are responsible for the remaining costs of any uneconomic utility investments.

    (5) The governing body of a public utility district, municipal electric utility, or electric cooperative shall allow the utility to recover in a transition charge the net, verifiable costs of its uneconomic utility investments that cannot be mitigated, as determined by the governing body.

    (6) No electric utility shall levy on a retail electric customer any other type of charge, fee, or penalty related to the recovery of uneconomic utility investments, other than a transition charge approved pursuant to this chapter.

 

    NEW SECTION.  Sec. 20.  (1) Every electricity service supplier that is not an electric utility conducting business in the state as of January 1, 1999, and that sells electricity to one or more retail electric customers with individual annual loads less than eight million seven hundred sixty thousand kilowatt hours, shall file a certificate of financial responsibility with the commission, showing that the applicant:  (a) Possesses the financial and technical capabilities to provide any service pursuant to this chapter; and (b) is able to meet its contractual agreements and obligations.  If necessary, the commission may require such an electricity service supplier to provide a bond or other security.

    (2) By July 1, 1998, the commission shall adopt final rules pursuant to RCW 80.04.160 to implement this section.

 

    NEW SECTION.  Sec. 21.  Every electric utility is obligated to maintain the integrity of its distribution facilities and provide safe, reliable service to all retail electric customers.  Nothing in this chapter reduces or diminishes the statutory or contractual obligations of electric utilities to maintain the reliability of their distribution facilities and other infrastructure or equipment used to deliver electricity.

 

    NEW SECTION.  Sec. 22.  (1) Every bill to a retail electric customer from an electricity service supplier must contain, among other things: (a) A complete and accurate list of the rates and amount due for each unbundled service or product that the customer is purchasing; (b) the rates and amount of state and local taxes, if any, imposed on the customer; and (c) other price information necessary to facilitate customer choice, as determined by the commission for electrical companies, pursuant to rules adopted under RCW 80.04.160, and by the governing body of public utility districts, municipal electric utilities, and electric cooperatives.

    (2) All retail electric customers have the right to receive a separate bill from an individual electricity service supplier that provides products and services.  With the permission of the retail electric customer and the electricity service supplier, an electric utility, at its option, may consolidate the bill for all electric services in a single statement.  The utility, however, shall not be required to forward payment to an electricity service supplier for services it provided to a retail electric customer before the utility has received payment for those services from the customer.

    (3) By July 1, 1998, the commission shall adopt uniform rules pursuant to RCW 80.04.160 to protect the confidentiality of individual customer-usage records of electrical companies that offer direct access and of electrical service suppliers that are registered pursuant to section 20 of this act.

 

    NEW SECTION.  Sec. 23.  (1) After July 1, 1999, or when an electric utility adopts direct access tariffs, whichever is sooner, an electric utility's statutory obligation to serve retail electric customers is modified as follows:

    (a) For a retail electric customer that chooses to continue purchasing all components of its electric service from the electric utility, the utility remains obligated to provide all components of electric service to the customer.

    (b) For a retail electric customer that chooses to purchase electricity from other sources, the electric utility has an obligation to provide direct access and ancillary services, pursuant to this chapter.

    (c) For a retail electric customer that chooses to purchase a portion of its service, including electricity or unbundled products, from the electric utility and a portion from other sources, the electric utility is obligated to:  (i) Continue providing the level of service that the customer chooses to purchase from electric utility; and (ii) provide direct access and ancillary services for the portion that is provided by other sources.

    (2) If a retail electric customer who purchases direct access service decides, at a later date, to purchase electricity from the electric utility, the utility shall not discriminate against the retail electric customer and shall offer service to the retail electric customer as if it were a new, similarly situated customer.

 

    NEW SECTION.  Sec. 24.  Upon receiving a complaint from a retail electric customer, the commission has the authority to investigate whether any electrical company or any corporation that is an electrical service supplier has exercised undue market power with respect to the sale of electricity.  The commission shall make a finding based on its investigation and, if warranted, refer the case to the attorney general's office for further investigation or action under the consumer protection act, chapter 19.86 RCW.

 

    NEW SECTION.  Sec. 25.  (1) The practices covered by this chapter vitally affect the public interest, the electricity bills of consumers, and the competitive position of businesses and industries.  The legislature therefore intends for the consumer protection act, chapter 19.86 RCW, to apply to the sale and distribution of electricity.

    (2) No electric utility or electricity service supplier is entitled to any exemption from state consumer protection or antitrust laws, including but not limited to any exemption based on state action.  Failure of an electric utility to offer direct access according to the provisions of this chapter constitutes a restraint of trade, as defined in chapter 19.86 RCW, and an attempted monopoly, as defined in chapter 19.86 RCW.

 

    NEW SECTION.  Sec. 26.  Any person or entity injured by an electric utility's failure to comply with this chapter has the right to file suit in superior court for an order requiring compliance with this chapter.

 

    NEW SECTION.  Sec. 27.  Nothing in this chapter restricts the ability of electric utilities to fulfill their obligations under voluntary agreements that designate boundaries for service areas as authorized by chapter 54.48 RCW.  The signing of such agreements does not restrict or limit the obligation of the electric utility to offer direct access service and ancillary services and otherwise comply with this chapter.

 

    Sec. 28.  RCW 42.17.310 and 1996 c 305 s 2, 1996 c 253 s 302, 1996 c 191 s 88, and 1996 c 80 s 1 are each reenacted and amended to read as follows:

    (1) The following are exempt from public inspection and copying:

    (a) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.

    (b) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy.

    (c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would (i) be prohibited to such persons by RCW 82.32.330 or (ii) violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.

    (d) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.

    (e) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property.  If at the time a complaint is filed the complainant, victim or witness indicates a desire for disclosure or nondisclosure, such desire shall govern.  However, all complaints filed with the public disclosure commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath.

    (f) Test questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.

    (g) Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired or the property to which the sale appraisal relates is sold, but in no event shall disclosure be denied for more than three years after the appraisal.

    (h) Valuable formulae, designs, drawings, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.

    (i) Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action.

    (j) Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

    (k) Records, maps, or other information identifying the location of archaeological sites in order to avoid the looting or depredation of such sites.

    (l) Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, which discloses or could be used to disclose the identity of a library user.

    (m) Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal for (i) a ferry system construction or repair contract as required by RCW 47.60.680 through 47.60.750 or (ii) highway construction or improvement as required by RCW 47.28.070.

    (n) Railroad company contracts filed prior to July 28, 1991, with the utilities and transportation commission under *RCW 81.34.070, except that the summaries of the contracts are open to public inspection and copying as otherwise provided by this chapter.

    (o) Financial and commercial information and records supplied by private persons pertaining to export services provided pursuant to chapter 43.163 RCW and chapter 53.31 RCW, and by persons pertaining to export projects pursuant to RCW 43.23.035.

    (p) Financial disclosures filed by private vocational schools under chapters 28B.85 and 28C.10 RCW.

    (q) Records filed with the utilities and transportation commission or attorney general under RCW 80.04.095 that a court has determined are confidential under RCW 80.04.095.

    (r) Financial and commercial information and records supplied by businesses or individuals during application for loans or program services provided by chapters 43.163, 43.160, 43.330, and 43.168 RCW, or during application for economic development loans or program services provided by any local agency.

    (s) Membership lists or lists of members or owners of interests of units in timeshare projects, subdivisions, camping resorts, condominiums, land developments, or common-interest communities affiliated with such projects, regulated by the department of licensing, in the files or possession of the department.

    (t) All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant.

    (u) The residential addresses and residential telephone numbers of employees or volunteers of a public agency which are held by the agency in personnel records, employment or volunteer rosters, or mailing lists of employees or volunteers.

    (v) The residential addresses and residential telephone numbers of the customers of a public utility contained in the records or lists held by the public utility of which they are customers.

    (w)(i) The federal social security number of individuals governed under chapter 18.130 RCW maintained in the files of the department of health, except this exemption does not apply to requests made directly to the department from federal, state, and local agencies of government, and national and state licensing, credentialing, investigatory, disciplinary, and examination organizations; (ii) the current residential address and current residential telephone number of a health care provider governed under chapter 18.130 RCW maintained in the files of the department, if the provider requests that this information be withheld from public inspection and copying, and provides to the department an accurate alternate or business address and business telephone number.  On or after January 1, 1995, the current residential address and residential telephone number of a health care provider governed under RCW 18.130.140 maintained in the files of the department shall automatically be withheld from public inspection and copying unless the provider specifically requests the information be released, and except as provided for under RCW 42.17.260(9).

    (x) Information obtained by the board of pharmacy as provided in RCW 69.45.090.

    (y) Information obtained by the board of pharmacy or the department of health and its representatives as provided in RCW 69.41.044, 69.41.280, and 18.64.420.

    (z) Financial information, business plans, examination reports, and any information produced or obtained in evaluating or examining a business and industrial development corporation organized or seeking certification under chapter 31.24 RCW.

    (aa) Financial and commercial information supplied to the state investment board by any person when the information relates to the investment of public trust or retirement funds and when disclosure would result in loss to such funds or in private loss to the providers of this information.

    (bb) Financial and valuable trade information under RCW 51.36.120.

    (cc) Client records maintained by an agency that is a domestic violence program as defined in RCW 70.123.020 or 70.123.075 or a rape crisis center as defined in RCW 70.125.030.

    (dd) Information that identifies a person who, while an agency employee:  (i) Seeks advice, under an informal process established by the employing agency, in order to ascertain his or her rights in connection with a possible unfair practice under chapter 49.60 RCW against the person; and (ii) requests his or her identity or any identifying information not be disclosed.

    (ee) Investigative records compiled by an employing agency conducting a current investigation of a possible unfair practice under chapter 49.60 RCW or of a possible violation of other federal, state, or local laws prohibiting discrimination in employment.

    (ff) Business related information protected from public inspection and copying under RCW 15.86.110.

    (gg) Financial, commercial, operations, and technical and research information and data submitted to or obtained by the clean Washington center in applications for, or delivery of, program services under chapter 70.95H RCW.

    (hh) Information and documents created specifically for, and collected and maintained by a quality improvement committee pursuant to RCW 43.70.510, regardless of which agency is in possession of the information and documents.

    (ii) Personal information in files maintained in a data base created under RCW 43.07.360.

    (jj) Customer-usage records of a public agency that distributes electricity to retail electric consumers.

    (kk) Financial or commercial information furnished to or developed by a public agency as part of a proposal, bid, or negotiation for electricity or related services.

    (2) Except for information described in subsection (1)(c)(i) of this section and confidential income data exempted from public inspection pursuant to RCW 84.40.020, the exemptions of this section are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought.  No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.

    (3) Inspection or copying of any specific records exempt under the provisions of this section may be permitted if the superior court in the county in which the record is maintained finds, after a hearing with notice thereof to every person in interest and the agency, that the exemption of such records is clearly unnecessary to protect any individual's right of privacy or any vital governmental function.

    (4) Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.

 

    Sec. 29.  RCW 80.12.020 and 1981 c 117 s 1 are each amended to read as follows:

    No public service company shall sell, lease, assign or otherwise dispose of the whole or any part of its franchises, properties or facilities whatsoever, which are necessary or useful in the performance of its duties to the public, and no public service company shall, by any means whatsoever, directly or indirectly, merge or consolidate any of its franchises, properties or facilities with any other public service company, without having secured from the commission an order authorizing it so to do:  PROVIDED, That this section shall not apply to any sale, lease, assignment or other disposal of such franchises, properties or facilities to a special purpose district as defined in RCW 36.96.010, city, county, or town.

    After July 1, 1999, this section does not apply to the generating plant and equipment of any electrical company.

 

    Sec. 30.  RCW 80.12.040 and 1961 c 14 s 80.12.040 are each amended to read as follows:

    No public service company shall, directly or indirectly, purchase, acquire, or become the owner of any of the franchises, properties, facilities, capital stocks or bonds of any other public service company unless authorized so to do by the commission.  Nothing contained in this chapter shall prevent the holding of stocks or other securities heretofore lawfully acquired or prohibit, upon the surrender or exchange of said stocks or other securities pursuant to a reorganization plan, the purchase, acquisition, taking or holding by the owner of a proportionate amount of the stocks or other securities of any new corporation organized to take over at foreclosure or other sale, the property of the corporation the stocks or securities of which have been thus surrendered or exchanged.  Any contract by any public service company for the purchase, acquisition, assignment or transfer to it of any of the stocks or other securities of any other public service company, directly or indirectly, without the approval of the commission shall be void and of no effect.

    After July 1, 1999, this section does not apply to the generating plant and equipment of any electrical company.

 

    Sec. 31.  RCW 80.24.010 and 1994 c 83 s 1 are each amended to read as follows:

    Every public service company subject to regulation by the commission shall, on or before the date specified by the commission for filing annual reports under RCW 80.04.080, file with the commission a statement on oath showing its gross operating revenue from intrastate operations for the preceding calendar year or portion thereof and pay to the commission a fee equal to one-tenth of one percent of the first fifty thousand dollars of gross operating revenue, plus two-tenths of one percent of any gross operating revenue in excess of fifty thousand dollars:  PROVIDED, That the fee shall in no case be less than one dollar.

    The percentage rates of gross operating revenue to be paid in any year may be decreased by the commission for any class of companies subject to the payment of such fees, by general order entered before March 1st of such year, and for such purpose such companies shall be classified as follows:

    Electrical, gas, water, telecommunications, and irrigation companies shall constitute class one.  Every other company subject to regulation by the commission, for which regulatory fees are not otherwise fixed by law shall pay fees as herein provided and shall constitute additional classes according to kinds of businesses engaged in.

    Any payment of the fee imposed by this section made after its due date shall include a late fee of two percent of the amount due.  Delinquent fees shall accrue interest at the rate of one percent per month.

    After July 1, 1999, the regulatory fees of electrical companies shall not be based on revenue from generating plants and equipment.

 

    Sec. 32.  RCW 80.28.020 and 1961 c 14 s 80.28.020 are each amended to read as follows:

    Whenever the commission shall find, after a hearing had upon its own motion, or upon complaint, that the rates or charges demanded, exacted, charged or collected by any gas company, electrical company or water company, for gas, electricity or water, or in connection therewith, or that the rules, regulations, practices or contracts affecting such rates or charges are unjust, unreasonable, unjustly discriminatory or unduly preferential, or in any wise in violation of the provisions of the law, or that such rates or charges are insufficient to yield a reasonable compensation for the service rendered, the commission shall determine the just, reasonable, or sufficient rates, charges, regulations, practices or contracts to be thereafter observed and in force, and shall fix the same by order.

    After July 1, 1999, this section does not apply to the rates and charges for electricity sold by electrical companies to retail electric customers, except for market-based rates adopted pursuant to section 9 of this act.

 

    Sec. 33.  RCW 80.28.050 and 1961 c 14 s 80.28.050 are each amended to read as follows:

    Every gas company, electrical company and water company shall file with the commission and shall print and keep open to public inspection schedules in such form as the commission may prescribe, showing all rates and charges made, established or enforced, or to be charged or enforced, all forms of contract or agreement, all rules and regulations relating to rates, charges or service, used or to be used, and all general privileges and facilities granted or allowed by such gas company, electrical company or water company.

    After July 1, 1999, this section does not apply to the rates and charges for electricity sold by electrical companies to retail electric customers, except for market-based rates adopted pursuant to section 9 of this act.

 

    NEW SECTION.  Sec. 34.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

 

    NEW SECTION.  Sec. 35.  Sections 1 through 27 of this act constitute a new chapter in Title 80 RCW.

 


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