ORDER NUMBER

F-22-23

 

IN THE MATTER OF

the Utilities Commission Act, RSBC 1996, Chapter 473

and

Creative Energy Thompson Rivers Limited Partnership

Application for Approval of a Certificate of Public Convenience and Necessity

for the Thompson Rivers University Low-Carbon District Energy System

and

Thompson Rivers University

Application for Approval of an Exemption Pursuant to Section 88(3) of the Utilities Commission Act

and

Participant Assistance/Cost Award Application

 

BEFORE:

E. B. Lockhart, Panel Chair

T. A. Loski, Commissioner

A. Pape-Salmon, Commissioner

 

on June 14, 2023

 

 

ORDER

WHEREAS:

 

A.      On November 25, 2021, Creative Energy Thompson Rivers Limited Partnership (Creative Energy) submitted an application to the British Columbia Utilities Commission (BCUC) for a Certificate of Public Convenience and Necessity (CPCN) for the Thompson Rivers University (TRU) Low Carbon District Energy System (LCDES) pursuant to sections 45 and 46 of the Utilities Commission Act (UCA) (CPCN Application);

B.      In the CPCN Application, Creative Energy seeks BCUC approval, pursuant to section 88(3) of the UCA, for an exemption from any requirement to file with the BCUC an energy supply contract with TRU under section 71 of the UCA, in relation to TRU’s provision of electricity and natural gas to Creative Energy with respect to the TRU LCDES;

C.      On December 9, 2021, TRU applied to the BCUC for an order under section 88(3) of the UCA exempting TRU from section 71 and Part 3 of the UCA with respect to the transmission, sale, delivery or provision of electricity and natural gas by TRU to Creative Energy for use in the TRU LCDES (TRU Exemption Application);

D.      By Order G-7-22 dated January 11, 2022, the BCUC ordered that both Creative Energy’s CPCN Application and the TRU Exemption Application be heard at the same time and established a written hearing process and a regulatory timetable for review of the applications, which consisted of, among other things, intervener registration and one round of information requests (IR). The regulatory timetable was subsequently amended by Orders G-41-22, G-97-22, G-122-22 and G-356-22 to include Panel IRs, Creative Energy and TRU final arguments, intervener argument and reply arguments;

E.       The Commercial Energy Consumers Association of British Columbia (CEC) was the sole intervener;

F.       On May 3, 2023, by Decision and Order C-1-23, the BCUC issued its final determinations on the Creative Energy CPCN Application;

G.      On June 2, 2023, by Order G-128-23, the BCUC, having been granted advance approval from the Minister of Energy, Mines and Low Carbon Innovation, issued exemptions to TRU and Creative Energy under section 88(3) of the UCA;

H.      On February 10, 2023, the CEC filed a Participant Assistance/Cost Award (PACA) application claim of $21,246.09 with respect to its participation in the proceeding;

I.         By letter dated April 17, 2023, Creative Energy provided its comments on the CEC PACA application, stating among other things, that the PACA application is deficient as the CEC does not represent the interests of TRU, the sole customer of the energy system, and its participation and questions were general in nature and did not significantly enhance the evidentiary record of the proceeding;

J.        By letter dated May 1, 2023, the CEC responded to Creative Energy’s comments; and  

K.       The BCUC has reviewed the CEC PACA application in accordance with the criteria and rates set out in the PACA Guidelines and Order G-97-17, and concludes that for the Reasons for Decision set out in Appendix A to this order, the following cost award should be approved.

 NOW THEREFORE pursuant to section 118(1) of the Utilities Commission Act, the BCUC orders as follows:

 

1.       For the Reasons for Decision attached as Appendix A to this order, funding is awarded to the CEC in the listed amount for its participation in the Creative Energy CPCN Application and TRU Exemption Application proceeding:

 

2.       Creative Energy is directed to reimburse the CEC for the awarded amount in a timely manner.

  

DATED at the City of Vancouver, in the Province of British Columbia, this          14^th           day of June 2023.

 

BY ORDER

 

Original signed by:

 

E. B. Lockhart

Commissioner

 

Attachment

 

 

Creative Energy Thompson Rivers Limited Partnership

Application for Approval of a CPCN for the Thompson Rivers University Low-Carbon District Energy System

Thompson Rivers University Application for Approval of an Exemption Pursuant to Section 88(3) of the UCA

Participant Assistance/Cost Award Application

 

 

 

BACKGROUND

 

On November 25, 2021, Creative Energy Thompson Rivers Limited Partnership (Creative Energy) applied for a Certificate of Public Convenience and Necessity (CPCN) for the Thompson Rivers University (TRU) Low Carbon District Energy System (LCDES) pursuant to sections 45 and 46 of the Utilities Commission Act (UCA) (CPCN Application). Creative Energy also seeks approval, pursuant to section 88(3) of the UCA, to be exempted from any requirement to file with the BCUC an energy supply contract with TRU under section 71 of the UCA, in relation to TRU’s provision of electricity and natural gas to Creative Energy with respect to the TRU LCDES (Creative Energy Exemption Application). On December 9, 2021, TRU applied to the BCUC for an order under section 88(3) of the UCA exempting TRU from section 71 and Part 3 of the UCA with respect to the transmission, sale, delivery or provision of electricity and natural gas by TRU to Creative Energy for use in the TRU LCDES (TRU Exemption Application).     

 

The Panel established a written public hearing for the review of Creative Energy’s CPCN Application and both parties’ Exemption Applications at the same time, including one round of information requests, a Panel information request, and written final and reply arguments. One party, the Commercial Energy Consumers Association of British Columbia (CEC), participated as an intervener in this proceeding. 

 

On May 3, 2023, by Decision and Order C-1-23, the BCUC issued its final determinations on the Creative Energy CPCN Application.

 

On June 2, 2023, by Order G-128-23, the BCUC, having been granted advance approval from the Minister of Energy, Mines and Low Carbon Innovation, issued exemptions to TRU and Creative Energy under section 88(3) of the UCA.

 

An application for Participant Assistance/Cost Award (PACA) funding was received from CEC and is evaluated in these Reasons for Decision.

1.0              Legislative and Regulatory Framework

Section 118 (1) of the UCA states that the BCUC may order a participant in a proceeding to pay all or part of the costs of another participant in the proceeding.

 

Order G-97-17 establishes the BCUC’s PACA Guidelines (PACA Guidelines), which are relevant for proceedings initiated prior to June 30, 2022. These guidelines set out the eligibility requirements and criteria used in assessing cost awards, including the process for applying for a cost award, eligible costs and rates. Section 3.1 of the PACA Guidelines outlines the considerations to determine participant eligibility for a cost award, including: a) whether the participant is directly or sufficiently affected by the BCUC’s decision; or b) whether the participant has experience, information, or expertise relevant to a matter before the BCUC that would contribute to the BCUC’s decision-making.

 

Section 3.2 of the PACA Guidelines describes the general characteristics of a participant in a proceeding that would meet the eligibility criteria. Among those to be considered is whether a participant “…represents the direct interests of ratepayer groups or affected groups in relation to matters that are regulated by the Commission”.

 

Section 4.3 of the PACA Guidelines outlines the considerations in determining the amount of a participant’s cost award, including:

a.       Whether the participant contributed to a better understanding by the BCUC of the issues in the proceeding;

b.       The degree to which the participant will be affected by the outcome of the proceeding;

c.       If the costs incurred by the participant are fair and reasonable;

d.       Whether the participant joined with other groups with similar interest to reduce costs;

e.       Whether the participant made reasonable efforts to avoid conduct that would unnecessarily lengthen the duration of the proceeding, such as ensuring its participation was not unduly repetitive;

f.        The funding day calculation for funding. if one is provided; and

g.       Consideration of any other matters which the BCUC determines appropriate in the circumstances.

 

Section 7.0 of the PACA Guidelines provides the information and expectations regarding the use of professional fees, including professional services. Participants are expected to use professional services in a cost-effective manner and to make efforts to avoid duplication of services among legal counsel, consultants, specialists, expert witnesses, and case managers. The BCUC may adjust cost awards where any duplication appears to have occurred.

2.0              CEC PACA Application

A breakdown of the CEC’s PACA application (including tax) filed with the BCUC for its participation in the proceeding is as follows:

Table 1 - Participant Assistance / Cost Award (PACA) Applications

 

Pursuant to section 14.2.4 of the PACA Guidelines, Creative Energy was provided with a copy of the PACA application received. By letter dated April 17, 2023, Creative Energy provided its comments on the CEC PACA application, stating among other things, that the request is “not aligned with the spirit of the Guidelines, nor does it meet the specific requirements prescribed by the Commission for such application.” Creative Energy states that the CEC PACA application is deficient on two accounts: 1) the CEC does not represent the interests of rate-paying customers of the energy system in the proceeding, because they do not represent the interests of Thompson Rivers University, the sole customer of the energy system, and 2) the CEC’s participation and questions were general in nature and did not significantly enhance the evidentiary record of the proceeding.[1]

 

Further, Creative Energy submits that in future proceedings the BCUC should critically assess the CEC’s participation to ensure it demonstrates that their members have legitimate interests in an application, or that they stand to be materially affected by the outcome.[2]

 

In response to Creative Energy’s PACA comments, the CEC argues, among other things, that the Project is surrounded by multiple commercial establishments and that absent participation in the proceeding, it would be unable to assess the impacts on those stakeholders.[3]

 

The CEC submits that it represented a substantial interest in the proceedings, because its members are commercial class customers, who are materially impacted by this application. The CEC also submits that it participated appropriately and provided value to the BCUC in this proceeding through IRs and final argument by raising various points of concern related to BCUC oversight, and identifying several areas which supported approval such as appropriateness of project planning, appropriateness of proposed and alternative technologies and stakeholder engagement.[4]

 

Panel Determination

The Panel accepts that the CEC represents the interests of commercial ratepayers who are or may be potentially affected in the future by the results of a proceeding. The CEC’s interest in this proceeding stems from its members: commercial establishments adjacent to the Project. In addition, the CEC has experience and expertise relevant to matters before the BCUC. Therefore, the Panel is satisfied that the CEC meets the criteria of being eligible for a cost award.

 

Having concluded that the CEC is eligible for PACA funding, the next step is to determine the amount of the award to which CEC is entitled. For the reasons set out below, the Panel determines that a full cost award should be approved for the CEC.

 

The Panel notes that the CEC actively participated in the proceeding.

 

The considerations listed in section 4 of the PACA Guidelines, and referenced above, are useful guidance in this part of the analysis, to determine the amount of the award that the CEC is entitled to. Rather than addressing each consideration separately (because not all are relevant), we address the following considerations, which are the most relevant in this proceeding:

a)       Has the participant contributed to a better understanding by the BCUC of the issues in the proceeding?

b)      To what degree will the participant be affected by the outcome of the proceeding?

c)       Are the costs incurred by the participant fair and reasonable?

The Panel finds that the CEC contributed to a better understanding of the issues raised in this proceeding. The CEC’s IRs focussed on the risk of cross subsidization and the potential for commercial customers to experience rate hikes either directly or indirectly, appropriateness of project planning and costing, appropriateness of proposed and alternative technologies and stakeholder engagement. In its final argument, CEC recommends that the BCUC approve the LCDES as proposed by Creative Energy and agrees that it is reasonable for the Project to be sized to allow for future expansion, and finds the additional costs are not excessive.[5] In its decision on the CPCN Application, the Panel noted that the CEC supports the scope of the Project[6] and finds indicative cost of service and rates to be reasonable.[7] 

 

The second consideration is the degree to which the participant will be affected by the outcome of the proceeding. The CEC submits that some of its members are commercial class customers of Creative Energy whose interests are significantly impacted by the outcome of the proceeding. However, Creative Energy argues that the CEC does not represent the interests of rate-paying customers of the energy system in the proceeding, because it does not represent the interests of Thompson Rivers University, the sole customer of the energy system. 

 

While the CEC does not represent TRU, it does represent commercial class ratepayers’ interests, including potential future customers, and it would have been unreasonable to deny the CEC the opportunity to explore issues or to expect it to do so at its own cost. For example, the CEC was entitled to ask questions to satisfy itself that commercial customers of Creative Energy would not be negatively impacted by the additional cost to allow for future expansion of the system.

 

Finally, we examine whether the costs incurred by the CEC are fair and reasonable. Table 2 below summarizes the number of funding days submitted by the CEC for both legal and consulting work:

 

 Table 2 – Participant Assistance / Cost Award (PACA) Funding Days

 

The Panel considers the number of funding days requested by the CEC is reasonable relative to its contribution and given the complexity of the Project. The Panel also finds that the funding amount requested is consistent with the rates established in the PACA Guidelines.  The Panel therefore approves in full the following CEC’s funding request as set out below: