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Commissioner Tony Clark Statement
March 21, 2013
Docket No. EL11-39-002
Item No. E-12

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Sweckers v. Midland Power & State of Iowa

“Today’s order addresses several requests for rehearing of a prior Commission decision involving Midland Power Cooperative’s (Midland) obligations under the Public Utility Regulatory Policies Act of 1978 (PURPA). Petitioners generally raise two main issues: (1) whether Midland Power Cooperative’s avoided cost payments to Gregory R. Swecker and Beverly F. Swecker are consistent with PURPA; and (2) whether it was appropriate for the Commission to order reconnection of the Sweckers’ facilities following disconnection of its retail electric service. On the first issue, I agree with the finding in today’s order that it would be inappropriate to initiate an enforcement proceeding on behalf of the Sweckers to establish a higher avoided cost payment for their qualifying facility (QF). Granting the Sweckers’ request would result in a deviation from established Commission practice and would be inconsistent with the settlement between the Sweckers and Midland, which was approved by this Commission in 2004. For these reasons, I support the order in part.

“However, I cannot support the decision to uphold the Commission’s prior order requiring reconnection of the Sweckers’ QF. First, termination of the Sweckers’ QF service arose consequentially from the disconnection of retail service, which was caused by the Sweckers’ nonpayment for service provided by Midland. The Iowa Utilities Board has jurisdiction of the retail service and disconnection. The Board concludes that the Sweckers should not be able to avoid disconnection and payment for services by framing this as a PURPA dispute. I agree. While our PURPA regulations obligate electric utilities to provide QFs service, they do not give us jurisdiction over retail disconnection. Second, the 2004 Settlement Agreement signed by the Sweckers, and approved by the Commission, provides Midland with explicit authority to disconnect the Sweckers’ facilities after sufficient notice and in accordance with applicable state law and Iowa Utilities Board regulations. Accordingly, I would have deferred to the Iowa Utilities Board’s jurisdiction over this matter instead of asserting Commission jurisdiction under PURPA.

“For these reasons, I respectfully dissent in part from this order.”