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November 9, 2010

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State Regulatory Relations

Republicans Gain Open Seats on State Utility Commissions

Mirroring a nationwide trend, Republicans took majority control of several state regulatory agencies that held elections for open seats. Incumbent Republican commissioners were successful in states such as Arizona, North Dakota, and South Dakota, while incumbent Democrats in Alabama and Montana were defeated.

Arizona Corporation Commissioner Gary Pierce, who is a Republican, held onto his seat to become the most senior member of the commission. Winning the seat formerly held by Republican Kris Mayes, who could not seek reelection because of term limits, was Brenda Burns, also a Republican. With 99.9 percent of the precincts counted in the state, Burns, a former state lawmaker, captured 29 percent of the vote, while Commissioner Pierce collected 28 percent of the vote.

With wins by incumbent Commissioner Pierce and newcomer Burns, the ACC remains comprised of three Republicans and two Democrats. The commissioners will hold a vote in January once the new regulator is sworn to elect the new chair of the ACC.

In Alabama, Republicans Twinkle Andress Cavanaugh and Terry Dunn ousted Democrats Jan Cook and Susan Parker in the general election. Cavanaugh, Gov. Bob Riley’s former deputy chief of staff and the former chairwoman of the Alabama Republican Party, will replace Cook, who was running for a fifth term at the PSC.

Dunn, who has a background in commercial real estate, will replace Parker, who served one term on the commission. The elections give Republicans a two-to-one majority on the commission. PSC President Lucy Baxley, a Democrat, will stand for reelection in 2012.

Republicans also took control of the Montana Public Service Commission thanks to victories from Bill Gallagher and Travis Kavulla. Gallagher, an attorney and former insurance agent, captured 58 percent of the vote to beat incumbent Commissioner Ken Toole, a Democrat. Kavulla, a writer and first-time candidate, gained 63.8 percent of the vote in his defeat of former Democratic State Sen. Don Ryan for the open District 1 seat.

In Georgia, Tim Echols (R) won the statewide election for a seat at the Public Service Commission with 55.5 percent of the vote, defeating Keith Moffett, a Democrat, by almost five percentage points. Echols will replace Commissioner Robert “Bobby” Baker (R), whose six-year term ends at the end of this year. Baker had held a seat at the commission since 1992.

In New Mexico, Theresa Becenti-Aguilar, a former Native American liaison for the Public Regulation Commission, retained the District 4 seat on the PRC after defeating Republican Gary Montoya. Becenti-Aguilar won the party's nomination and was appointed to the PRC by the governor earlier this year to fill the seat vacated by Carol Sloan.

Patrick Lyons (R), a former state senator and current land commissioner, handily defeated Democrat Stephanie DuBois for the District 2 seat. Term limited prevented Republican David King from running for re-election. n addition, Republican Ben Hall edged out Democrat Bill McCamley to win the District 5 seat in the PRC, which was vacated by Sandy Jones, who ran unsuccessfully for the Democratic nomination for land commissioner instead of seeking re-election to the PRC. Hall, who has served three terms in the New Mexico House and two terms as a Lincoln County commissioner, garnered 51.5 Percent of the vote. Commissioners Jason Marks and Jerome Block, both Democrats, were not up for reelection this year.

In North Dakota, voters reelected incumbent Commissioner Kevin Cramer, a Republican. Cramer defeated challenger Brad Crabtree (D) and retained the seat he was appointed to in 2003 and re-elected to in 2004. Cramer, who currently serves as president of the commission, defeated Crabtree 61 percent to 34.9 percent.

In South Dakota, Incumbent Republican Dustin “Dusty” Johnson won another term on the state’s Public Utilities Commission after easily defeating challenger Doyle Karpen. Johnson received 73% of the vote, according to results provided by the South Dakota secretary of state. Commissioner Johnson currently chairs the three-member commission in the state.

Elsewhere, Oklahoma Corporation Commissioner Dana Murphy (R) did not face any opposition in the general election after defeating Tod Yeager in July primary. Murphy was first elected to the Oklahoma Corporation Commission on Nov. 4, 2008, for a partial two-year term to fill seat vacated by then-commissioner Denise Bode (R).

In Nebraska incumbent commissioners Gerald Vap (R) and Rod Johnson (R) were unopposed and retained their seats on the Nebraska Public Service Commission.


NJ BPU to Hold Meeting on DSIC

The New Jersey Board of Public Utilities (BPU) plans to begin stakeholder meetings next month on a proposal to allow for the possible implementation of a Distribution System Improvement Charge (DSIC) for water and wastewater utilities (BPU Docket No. W0 10090655). Hearings have been scheduled for Dec. 7, 2010, and are to be held at the BPU.

Ahead of the hearings, the Board is soliciting input on the need and appropriateness of allowing regulated water and wastewater utilities to implement a Distribution System Improvement Charge (DSIC).

Specifically, the Board seeks comments on, but not limited to, the following issues:

  • Whether there is a demonstrated need for a DSIC in New Jersey at this time.
  • If a DSIC were to be implemented, whether it should apply to both water and wastewater utilities.
  • If a DSIC were to be implemented, the type of infrastructure to be included; the methodology to be used in the computation of the DSIC charge; and the appropriate level and timing of the DSIC mechanism.
  • If a DSIC were to be implemented, whether an earnings test should be utilized in the context of a DSIC.
  • If a DSIC were to be implemented, whether interest on over/under recoveries should be paid/charged to ratepayers.

While a court reporter will be present to transcribe the comments, this will not be a formal public hearing. This is an informal stakeholder process designed to solicit input from members of the public.

Please click here to read the official notice of the hearing.


Commissioner Graham Elected Chairman of the Florida PSC

Chairman Art Graham

Commissioner Art Graham was recently elected as Chairman of Florida’s Public Service Commission (PSC) to fill an unexpired chairmanship term through Jan. 1, 2012.

“Serving as the PSC Chairman is an honor, and I’m looking forward to the challenge,” Graham said. “In the coming months, we will consider critical issues as a collegial body to benefit the public interest.”

Graham was appointed to the Commission in July by Governor Charlie Crist to fill an unexpired term as commissioner through Jan. 2, 2014. Prior to his appointment by Crist, Graham served on the Jacksonville City Council.

As a city council member, Graham helped oversee the budget of JEA, a publicly owned electric, water, and wastewater utility, and chaired the Transportation, Energy and Utilities Committee. He also served on the Jacksonville Beach City Council from 1998 to 2002.

Graham is a past chairman of the North Florida Transportation Planning Organization, and vice president of the Northeast Florida Regional Planning Association. He headed ART Environmental Consulting Services from 2005 to 2009, and was a recovery engineer with Georgia Pacific Pulp and Paper from 1995 to 2002. A sales engineer with Betz PaperChem from 1991 to 1995, Graham was a regional sales manager from 1989 to 1991 for Goodyear Tire and Rubber, where he was also an application engineer from 1988 to 1989.

Graham received a bachelor’s degree in chemical engineering from the Georgia Institute of Technology in Atlanta.

PA Supreme Court Strikes Down Sprinkler Ordinance

In 2005, Schuylkill Township enacted an ordinance requiring sprinklers in all new structures or dwellings, including basements, additions and structural alterations. The ordinance was challenged by two building associations on the grounds that it imposed standards that exceeded the minimum requirements of the Uniform Construction Code (UCC) previously adopted in Pennsylvania (and other states). In Schuylkill Township v. Pennsylvania Builders Association, et al. (2010 Pa. LEXIS 2387; Oct. 19, 2010), the Pennsylvania Supreme Court affirmed the invalidation of the ordinance, agreeing with determinations of Pennsylvania’s Department of Labor and Industry and a lower court that local conditions in Schuylkill Township were not so atypical as to warrant an exception to the UCC. The Court further advised future litigants advocating for or against such an exception to consider the availability and adequacy of a municipality’s fire department, typical fire response time and geologic and topographic impediments thereto, and available public water sources.