BILL REQ. #:  H-2287.1 

READ FIRST TIME 03/04/05.   

     AN ACT Relating to the resolution of disputes between electrical suppliers regarding electrical service to customers; amending RCW 36.70A.280; and adding a new chapter to Title 80 RCW.

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

NEW SECTION.  Sec. 1   The purpose of this chapter is to promote harmony among and between electric suppliers furnishing electricity within the state of Washington, discourage duplication of electric facilities, encourage efficiencies in the distribution and delivery of electricity, reduce or eliminate safety hazards associated with overlapping electric facilities and service lines, actively supervise certain conduct of electric suppliers as it relates to this chapter, stabilize the territories and customers served with electricity by such electric suppliers, and provide a means for resolving disputes relating to the provision of new electric service and customers switching from one electric supplier to another.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Investor-owned utility" means any privately owned public service company engaged in the business of distributing electricity to one or more retail electric customers in the state.
     (2) "Consumer-owned utility" includes a municipal electric utility formed under Title 35 RCW, a public utility district formed under Title 54 RCW, a cooperative formed under chapter 23.86 RCW, and a mutual corporation or association formed under chapter 24.06 RCW, engaged in the business of distributing electricity to one or more retail electric customers in the state.
     (3) "Electric supplier" means any investor-owned utility or consumer-owned utility.
     (4) "Electric service" means electricity furnished to an ultimate customer by an electric supplier.
     (5) "Customer" means any person, firm, corporation, or other entity receiving or intending to receive electric service at a specific service entrance.
     (6) "Service entrance" means the location on the customer's property where the customer's main disconnect switch, fuses, or other disconnect equipment exists, and which is intended to provide the means of cutoff of the supply.
     (7) "New service entrance" means a service entrance not previously served with electricity. "New service entrance" does not include:
     (a) A change, improvement, replacement, enlargement, or change in location of a service if utilized to serve any service or utilization equipment previously served with electricity from the former service entrance;
     (b) A change in the customer receiving electric service at an existing service entrance; or
     (c) A change, enlargement, or other modification of service or utilization equipment served from an existing service entrance.
     (8) "Service line" means any single or multiphase electric line of an electric supplier used for carrying less than sixty-nine KV and used or capable of use to provide electric service for a customer.
     (9) "Existing service line" means any electric service line in existence at the time of the event in question and constructed to supply a customer that could be lawfully served by that electric supplier under this chapter. "Existing service line" does not include any service line constructed to obtain an advantage under this chapter, or to evade its purpose or terms.
     (10) "Commission" means the Washington utilities and transportation commission.
     (11) "Board" means a growth management hearings board established pursuant to RCW 36.70A.250.

NEW SECTION.  Sec. 3   Disputes between electric suppliers regarding a potential change in electric suppliers for an existing service entrance or the provision of electric service to a new service entrance shall be resolved in accordance with this section.
     (1) In the event of a dispute involving an investor-owned utility, a dispute shall be resolved in accordance with the following procedures:
     (a) Either electric supplier may petition the commission to commence an investigation;
     (b) Upon filing of a petition to commence an investigation, if either electric supplier objects to the dispute being heard by the commission, such dispute shall be removed from the commission and submitted to arbitration pursuant to subsection (3) of this section;
     (c) The commission shall have the power, after hearing, to resolve questions in dispute tendered to the commission for determination;
     (d) Unless the commission orders otherwise based on consideration of the factors specified in section 4 of this act, in the event that a new service entrance is requested for premises and more than one electric supplier is available for service to the property, the electric supplier whose existing service line is nearest the new service entrance on the premises to be served shall, subject to the other applicable provisions of this section, be entitled to serve the premises;
     (e) Disputes between electric suppliers regarding a potential change in electric suppliers for an existing service entrance shall be resolved by reference to the considerations set forth in section 4 of this act; and
     (f) If the commission determines that the disputed issue is governed by an agreement entered into pursuant to RCW 54.48.030, it shall issue an order accordingly, directing which of the electric suppliers shall provide electric service to the new service entrance.
     (2) In the event of a dispute involving only consumer-owned utilities, the dispute shall be resolved in accordance with the following procedures:
     (a) Either electric supplier may petition the board whose jurisdiction includes the service area in question to commence an investigation;
     (b) The board shall have the power to conduct a de novo hearing, to establish rules regarding the conduct of such a hearing, and to resolve questions in dispute tendered to the board for determination;
     (c) Unless the board orders otherwise based on consideration of the factors specified in section 4 of this act, in the event that a new service entrance is requested for premises and more than one electric supplier is available for service to the property, the electric supplier whose existing service line is nearest the new service entrance on the premises to be served, subject to the other applicable provisions of this section, shall be entitled to serve the premises; and
     (d) Disputes between electric suppliers regarding a potential change in electric suppliers for an existing service entrance shall be resolved by reference to the considerations set forth in section 4 of this act.
     (3) Disputes submitted to arbitration pursuant to subsection (1) of this section shall be subject to the following procedures:
     (a) All disputes shall be heard by one qualified arbitrator, unless the parties agree to use three arbitrators. If three arbitrators are used, one shall be appointed by each of the disputing parties and the first two arbitrators shall appoint the third, who shall chair the panel. Upon the failure of the arbitrators to select a neutral chair, either party may apply to the federal mediation and conciliation service or the American arbitration association to provide a list of five qualified arbitrators from which the neutral chair shall be chosen. Each party shall pay the fees and expenses of its arbitrator, and the fees and expenses of the neutral chair shall be shared equally between the parties;
     (b) The arbitration hearing must be conducted in a manner that permits full, fair, and expeditious presentation of the case by both parties. The arbitration panel is bound by the laws of Washington state. Parties may be, but are not required to be, represented by attorneys. The arbitration panel may permit discovery to ensure a fair hearing, but may limit the scope or manner of discovery for good cause to avoid excessive delay and costs to the parties. The parties and the arbitration panel shall use all reasonable efforts to complete the arbitration within three months of the date in which the dispute was referred to arbitration. The determination of the arbitration panel shall be final and binding upon both parties, subject to review upon the application of either party by the superior court in the county in which the service entrance in dispute is located, with such review limited to the question of whether the decision of the panel was arbitrary or capricious; and
     (c) Determinations involving the designation of boundaries of adjoining service areas under RCW 54.48.030 shall be subject to approval by the commission.

NEW SECTION.  Sec. 4   (1) In making determinations pursuant to section 3 of this act, the commission, board, or arbitrator shall give consideration to the following:
     (a) The intent of the legislative policy asserted under RCW 54.48.020;
     (b) Geographical boundaries of electric suppliers' existing service lines and the capacity of those lines;
     (c) Potential safety hazards associated with electric suppliers' extension of electric service to the customer to be served;
     (d) Potential visual or aesthetic impacts associated with electric suppliers' extension of electric service to the customer to be served;
     (e) Extent to which electric suppliers' extension of electric service to the customer to be served will involve uneconomic duplication of facilities;
     (f) Length of time in which electric suppliers have served in vicinity of premises to be served;
     (g) Any agreements between the electric suppliers entered into and approved pursuant to RCW 54.48.030;
     (h) Consistency with the orderly development of the region;
     (i) Natural geographical boundaries;
     (j) Compatibility with the interests of all customers; and
     (k) Any other factors deemed relevant by the commission or board.
     (2) In addition, in making determinations pursuant to section 3 of this act concerning disputes between consumer-owned utilities, a board shall give consideration to policies set out in applicable comprehensive plans, capital facility plans, and development regulations.

NEW SECTION.  Sec. 5   In making determinations pursuant to section 3 of this act, the commission or board may use alternative dispute resolution, including arbitration, mediation, or the assignment of settlement judges to facilitate discussions among the parties.

NEW SECTION.  Sec. 6   If an electric supplier has been granted a franchise to continue business within an annexed territory pursuant to RCW 35A.14.900, the provisions of this act shall not apply until the expiration of that franchise pursuant to RCW 35A.14.900.

NEW SECTION.  Sec. 7   Nothing in this chapter shall be construed to classify a consumer-owned utility as a public service company under this title or to include consumer-owned utilities under the authority of the commission, except to the extent specifically provided in this chapter.

Sec. 8   RCW 36.70A.280 and 2003 c 332 s 2 are each amended to read as follows:
     (1) Except as provided in subsection (6) of this section, a growth management hearings board shall hear and determine only those petitions alleging either:
     (a) That a state agency, county, or city planning under this chapter is not in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption of shoreline master programs or amendments thereto, or chapter 43.21C RCW as it relates to plans, development regulations, or amendments, adopted under RCW 36.70A.040 or chapter 90.58 RCW; or
     (b) That the twenty-year growth management planning population projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted.
     (2) A petition may be filed only by: (a) The state, or a county or city that plans under this chapter; (b) a person who has participated orally or in writing before the county or city regarding the matter on which a review is being requested; (c) a person who is certified by the governor within sixty days of filing the request with the board; or (d) a person qualified pursuant to RCW 34.05.530.
     (3) For purposes of this section "person" means any individual, partnership, corporation, association, state agency, governmental subdivision or unit thereof, or public or private organization or entity of any character.
     (4) To establish participation standing under subsection (2)(b) of this section, a person must show that his or her participation before the county or city was reasonably related to the person's issue as presented to the board.
     (5) When considering a possible adjustment to a growth management planning population projection prepared by the office of financial management, a board shall consider the implications of any such adjustment to the population forecast for the entire state.
     The rationale for any adjustment that is adopted by a board must be documented and filed with the office of financial management within ten working days after adoption.
     If adjusted by a board, a county growth management planning population projection shall only be used for the planning purposes set forth in this chapter and shall be known as a "board adjusted population projection". None of these changes shall affect the official state and county population forecasts prepared by the office of financial management, which shall continue to be used for state budget and planning purposes.
     (6) A growth management hearings board may conduct hearings pursuant to chapter 80.-- RCW (sections 1 through 7 of this act).

NEW SECTION.  Sec. 9   Sections 1 through 7 of this act constitute a new chapter in Title 80 RCW.