Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Matanuska Electric Association, Inc. v. Municipality of Anchorage (05/23/2008) sp-6269

Matanuska Electric Association, Inc. v. Municipality of Anchorage (05/23/2008) sp-6269, 184 P3d 19

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


MATANUSKA ELECTRIC )
ASSOCIATION, INC., ) Supreme Court No. S- 12568
)
Appellant, ) Superior Court No. 3AN-05-04745 CI
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, ) No. 6269 May 23, 2008
d/b/a MUNICIPAL LIGHT & )
POWER, and GOLDEN VALLEY )
ELECTRIC ASSOCIATION, INC., )
)
Appellees. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:   Kyle  W.  Parker,   David   J.
          Mayberry,  and  Rebecca S.  Copeland,  Patton
          Boggs LLP, Anchorage, for Appellant.  Dean D.
          Thompson and Paul J. Jones, Kemppel, Huffman,
          and  Ellis,  P.C.,  Anchorage,  for  Appellee
          Municipality  of  Anchorage, d/b/a  Municipal
          Light  &  Power.  Kirk H. Gibson, Ater  Wynne
          LLP,  Portland,  Oregon, for Appellee  Golden
          Valley Electric Association, Inc.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti,  and Winfree, Justices. [Matthews,
          Justice, not participating.]

          FABE, Chief Justice.
I.   INTRODUCTION
          Matanuska  Electric Association, Inc. (MEA)  appeals  a
ruling  from  the Regulatory Commission of Alaska.  MEA  contends
that  the  Commission  acted outside  its  jurisdiction  when  it
ordered  MEA  to continue operating its transmission  line  at  a
voltage  that  exceeds the lines designed maximum, and  that  the
Commission   committed  reversible  error  when  it  denied   MEA
permission  to  cross-examine  a  witness.   Because  substantial
evidence  aside  from  the  challenged  testimony  supports   the
Commissions decision, we affirm.
II.  FACTS AND PROCEEDINGS
          This  appeal concerns twenty miles of transmission line
(the  Line)  owned and operated by MEA.  The Line runs  northward
from a location outside of Wasilla to MEAs Douglas Substation  in
the  community  of Willow.  It functions as part  of  the  Alaska
Intertie, most of which was constructed with state funds  by  the
Alaska  Energy Authority (the Authority)1 in the early  1980s  to
provide   a   means  of  transmitting  energy  from   a   planned
hydroelectric  facility,  the Susitna project,  to  northern  and
southern electric utilities.  The Susitna project never  came  to
pass,  but the Intertie continues to serve an important  role  as
the  exclusive link between electric utilities from Fairbanks  to
the Kenai Peninsula.
          The  Authority incorporated the Line into the  Intertie
in  order  to  speed  construction,  minimize  costs,  and  avoid
duplicating   facilities.    The   Authority   entered   into   a
Transmission  Services Agreement with MEA on December  18,  1986.
Under that agreement, MEA retains ownership of the Line; but  the
Line  operates as part of the Intertie under the control  of  the
Intertie Operating Committee.
          The  Transmission  Services Agreement  contemplates  an
operational  voltage of 138 kilovolts (kV) for  the  Line.   This
voltage  equals  that  of  adjoining sections  of  the  Intertie.
Unlike  those  facilities, however, the Line was designed  to  be
energized at only 115kV.  MEA maintains that conversion  of  [the
Line]  to  138kV  operation was always intended  as  a  temporary
situation.   Nevertheless,  138kV has  remained  the  operational
voltage  for  the  Line  since  the Authority  entered  into  the
Transmission Services Agreement with MEA in 1986.  The  Authority
and MEA set the Transmission Services Agreement to expire on July
1, 2004.  On May 9, 2003, MEA General Manager Wayne Carmony wrote
to notify the Authority of MEAs intent to discontinue the parties
arrangement.  He cited MEAs need for the flexibility of operating
[the  Line] in the manner of our choosing, in either a single  or
double circuit configuration.  He did not mention concerns  about
safety  hazards or performance failures linked to energizing  the
Line  at  138kV.   MEA maintains, however, that its  decision  to
terminate the [Transmission Services Agreement] was motivated  by
its  desire to return [the Line] to 115kV operation in  order  to
minimize  the costly operational impacts which had arisen  during
the term of the [Transmission Services Agreement].
          MEA invited the Authority to negotiate a new agreement,
but  the two sides failed to reach an accord.  MEA also attempted
to  strike  separate bargains with the individual utilities  that
wheel  power across the Line, but these efforts failed to advance
          beyond the initial stages of talks.2
          On  October  30,  2003,  the Intertie  Participants,  a
collection  of utilities3 that distribute electricity across  the
Intertie  and  the Line, applied to the Commission for  continued
joint   use   of  the  Line.   Pending  proceedings  before   the
Commission,  MEA  agreed  to allow the Intertie  Participants  to
continue  using the Line under similar terms until  December  31,
2004.    The  Commission  requested  that  the  parties  pre-file
testimony  and  held a two-day hearing beginning on  October  28,
2004.   The  Intertie Participants presented testimony  from  two
Golden  Valley  officers  and a consultant.   MEA  presented  the
testimony  of three of its officers as well as that  of  its  own
consultant.
          Much  of  the evidence before the Commission  concerned
whether  the  Line could operate at 138kV in a safe and  reliable
manner.   The Commission noted that some thirty flashover outages
had  occurred  along  the Line after it began  operating  at  the
higher  voltage  in 1986.  The parties disputed the  significance
and cause of these outages, with MEA asserting that conversion of
the Line to 138kV had rendered the Line unreliable and dangerous.
The  parties disagreed whether the voltage differential  posed  a
safety threat.4
          The   parties  presented  the  testimony   of   several
witnesses  to the Commission, with that of Golden Valley  officer
Steven  Haagenson bearing particular relevance  to  this  appeal.
Like the other witnesses, Haagenson was made available for cross-
examination during the hearing, but MEA indicated that it had  no
questions for him.  The two commissioners in attendance  followed
suit,  also declining to ask Haagenson any questions.   The  next
day, however, Chairman Giard recalled Haagenson to the stand  and
solicited  information about the costs of reverting the  Line  to
115kV.   Haagenson testified as to the construction  expense  and
downtime associated with installing a transformer.
          At  the  conclusion  of  that testimony,  MEAs  counsel
requested  permission  to cross-examine Haagenson.   The  hearing
examiner denied MEAs request, explaining: ordinarily I only allow
examination  for  any questions that exceed  the  scope  of  your
[earlier  cross]  examination and since there  was  none  I  dont
really  have  a  whole  lot of options there.   Counsel  for  MEA
responded,  All right.  MEA made no representation  or  offer  of
proof  at  the  hearing regarding the testimony  it  proposed  to
elicit on cross-examination.  But on appeal MEA alleges that  its
cross-examination would have demonstrated that reverting the Line
to 115kV would require at most two hours of downtime, not the six
months to a year that Haagenson indicated in his testimony.
          The  Commission  ruled  that the Line  should  continue
operating  at 138kV, reasoning that evidence presented  on  three
design  parameters, which vary according to a transmission  lines
voltage  level   ground clearance, insulation, and phase  spacing
failed to demonstrate significant safety or operational hazards.
          First,  the  Commission  noted that  the  Lines  ground
clearance   conformed  to  standards  set  under   the   National
Electrical  Safety Code for 115kV transmission lines  constructed
over  cultivated  fields.   This means  that  MEA  maintains  its
          transmission line at least 20.2 feet above the ground, ostensibly
to  accommodate farm machinery that may cross beneath  the  Line.
By  way  of  comparison,  a 138kV transmission  line  must  clear
cultivated  fields  by  20.4 feet.  The  Commission  deemed  this
height  differential  to be de minimis, and  further  noted  that
[t]here are no cultivated fields under [the Line,] therefore, the
ground clearance should be more than adequate to accommodate  the
increased voltage on the [L]ine.
          The  alleged  inadequacy of the  insulation  and  phase
spacing   along  the  Line  similarly  failed  to   impress   the
Commission.   Insulation, in the form of  porcelain  bells  fixed
along  a transmission line, protects against flashovers, in which
electric  energy  arcs from the wire conductor to  the  structure
bearing  the Line.  Flashovers cause service outages  and  create
carbon  deposits  that  cause  more  frequent  flashovers.    The
Commission  noted  the Rural Utilities Services requirement  that
138kV  transmission lines carry eight porcelain  insulator  bells
between structures, one more bell than that recommended for 115kV
lines.   The  Commission, however, found no  persuasive  evidence
that  installing  the additional bell will markedly  improve  the
reliability  of  that line, and determined  that  in  any  event,
nothing  prevented MEA from exercising the option to install  the
additional insulator bell since the [L]ine was converted to 138kV
usage 17 years ago.
          Similarly,  the  Commission  implicitly  dismissed  MEA
concerns that inadequate phase spacing could account for  service
interruptions  along  the  Line.  Phase  spacing  refers  to  the
horizontal  distance  between transmission  lines.   It  prevents
electric  energy  from arcing between adjacent  wires  and  other
electric conductors, thereby causing the circuit breakers to open
and  de-energize  a line, interrupting service.   The  Commission
pointed out that the standard for phase spacing is greater for  a
138kV  line than a 115kV line.  The Commission declined  to  give
further treatment to the phase- spacing issue in its decision but
concluded  generally that although MEA argued that the  flashover
outages  it  has  experienced on [the Line]  are  the  result  of
operating the [L]ine at the higher voltage, the utility  did  not
submit  persuasive  evidence  that the  outages  were  caused  by
flashovers.   Rather,  the Commission found  persuasive  evidence
that the flashovers would be continual if they were the result of
operating the [L]ine at a higher voltage.
          In  addition  to  finding that the Line  could  operate
safely  and  reliably at 138kV, the Commission pointed  out  that
returning the Line to 115kV operation would entail its own costs:
          Conversion  of the line [to] 115kV  usage  at
          this  time  would  require  approximately  $1
          million to install a transformer. There is no
          persuasive  evidence that the expenditure  is
          necessary.  In addition, the line  would  not
          be  operational for approximately six  months
          to   one   year   while  a  transformer   was
          installed.[5]    There   are   no   redundant
          facilities  to  transport  power  during  the
          interim.  Any benefits of such conversion are
          not outweighed by the costs.
          
          On January 31, 2005, MEA appealed the Commissions order
to  the  superior court and at the same time filed  a  motion  to
require  further testimony from Haagenson.  Superior Court  Judge
Sen  K. Tan denied MEAs motion for supplemental testimony.  After
hearing   oral   argument,  the  superior  court   affirmed   the
Commissions  decision.   As  a  preliminary  matter,  Judge   Tan
rejected  MEAs  claim  that the case presented  a  jurisdictional
question,  ruling that the issue surrounding the Lines  operation
at  138kV posed a question of fact, not a question of law.  Judge
Tan   went  on  to  find  substantial  evidence  supporting   the
Commissions  conclusions that the Line could operate  safely  and
reliably  at 138kV.  Judge Tan held that the Commission  had  not
abused its discretion in refusing to allow MEAs cross-examination
of  Haagenson because MEA failed to make an offer of  proof,  and
the  request  to ask a question on clarification was not  evident
from  the  context of the question.  Finally, Judge Tan  reasoned
that any error that did occur was harmless.  MEA appeals.
III. STANDARD OF REVIEW
          We  directly review the Commissions action at issue  in
an   administrative   appeal.6    We   uphold   the   Commissions
determinations  of fact if review shows substantial  evidence  or
relevant  evidence  that  a reasonable  person  might  accept  as
adequate  to  support  them.7  We review decisions  to  admit  or
exclude  evidence  for abuse of discretion  and  will  uphold  an
evidentiary ruling unless it erroneously affected the substantial
rights of a party.8
IV.  DISCUSSION
          MEA   argues  first  that  the  Commission  lacks   the
authority  to order operation of the Line at 138kV because  doing
so  violates  national safety codes incorporated by  Alaska  law.
MEA  emphasizes  that  no other electric line  in  the  state  is
operated  above  its  design  voltage.   MEA  contends  that  the
Commission ignored the substantial cost of operating at 138kV, in
contravention of its mandate to regulate utilities  in  the  best
interests  of  the public.  Second, MEA argues that  the  hearing
examiner  erred  in  barring  further questioning  of  Haagenson,
contending  that  this led the Commission to  make  an  erroneous
finding  on the disconnection time associated with reverting  the
Lines  operation  to 115kV.  MEA maintains that  the  Commissions
order  demonstrates  that  the  alleged  misunderstanding  had  a
material effect on the outcome of the case.
     A.   The Commission Did Not Err in Ruling that the Line Must
          Continue To Operate at 138kV.
          
          Alaska  Statute  42.05.321 governs scenarios  in  which
public  utilities,  such  as MEA and the  Intertie  Participants,
fail[]  to  agree  upon  the  joint  use  or  interconnection  of
facilities  or  the condition or compensation for  joint  use  or
interconnections.  The  statute  instructs  the   Commission   to
prescribe  reasonable conditions . . . for  joint  use  where  it
finds that public convenience and necessity require the joint use
or  connection, and that the use or connection will not result in
substantial injury to the owner utility or its customers,  or  in
substantial  detriment  to the services furnished  by  the  owner
utility,  or  in  the  creation  of  safety  hazards.9   As   the
Commission  noted  in its decision, the crux of this  controversy
concerns  not  whether public convenience and  necessity  require
joint  use  of  the Line, but whether that use must  continue  at
138kV.   That inquiry turns on whether operation at 138kV creates
safety  hazards or significantly affects the reliability of  MEAs
services,  and  it  presents  a  question  of  fact.10    Because
substantial  evidence  in  the record  supports  the  Commissions
conclusion  that the Line can be operated safely and reliably  at
138kV, we affirm its decision.
          The  Commission based its decision on the design of the
Line, the past performance of the Line at 138kV, and the costs of
reverting  the  Line to 115kV operation.  MEA argues  that  these
factors counsel against operating the Line at 138kV.  MEA invokes
two  statutes in support of its claim.  The first, AS  10.25.440,
mandates  that construction of electric lines . . . shall,  as  a
minimum  requirement, comply with the standards of  the  National
Electrical  Safety  Code in effect at the time  of  construction.
The  second, AS 18.60.580, provides that the Department of  Labor
and  Workforce  Development may, by regulation,  adopt  the  most
recent  [National  Electrical  Safety  Code]  to  constitute  the
minimum electrical safety standards of the state.11  MEA contends
that  the  Commissions decision forces the utility to operate  in
violation of the National Electrical Safety Code.
          But  MEA  fails to cite a specific code violation  that
arises  out  of the Lines operation at 138kV.  MEA simply  points
out,   as   the  parties  concede,  that  the  Line  was  neither
constructed nor modified to operate at 138kV.  Since the Line was
constructed  to  operate at 115kV, MEA reasons that  transmitting
138kV   across   it   without  modification  must   violate   the
construction requirements of AS 10.25.440 and, by extension,  the
National Electrical Safety Code.
          The Commission recognized that the Line was designed to
operate  at 115kV but nevertheless found the line can  be  safely
operated  at  138kV if it is properly maintained.  MEA  fails  to
directly  challenge  that  ruling.  For example,  the  Commission
noted that the Rural Electrification Administration recommends an
additional insulator bell for 138kV lines, as compared  to  115kV
lines.   But  MEA does not clarify whether having one fewer  bell
rises  to  the level of a safety code violation, or if any  other
aspect  of the Line, as it operates today, fails to comport  with
          the National Electrical Safety Codes and Alaska laws minimum
standards.12   Delbert LaRue, the design engineer  of  the  Line,
testified  that he provided for a margin of safety in  the  Lines
design  that permits safe operation at a greater voltage.   LaRue
did  not  know  where  the  upper end of the  permissibly  higher
voltage  might lie, but he assured the Commission that as  it  is
right  now,  the  Line  can continue to operate  in  a  safe  and
reliable  manner  at  138kV.  MEAs own  director  of  operations,
Robert  Drake, made no indication that operation of the  Line  at
138kV  violated  the National Electrical Safety Code,  testifying
that he was not aware of any code violation on the Line.
          MEAs   expert   engineering  witness,  Michael   Moore,
testified  that he considered reliability, safety  and  liability
issues  arising  from . . . continued operation of  the  Line  at
138kV.    Moore  concluded  that  several  problems  related   to
operating  [the  Line]  at 138kV, including insulation,  vertical
clearance  and  phase  spacing  requirements  .  .  .  result  in
increased  public safety and reliability risks.   As  MEA  itself
points  out,  however, Moore did not address whether  [the  Line]
complies  with applicable safety code requirements.  And  indeed,
Moore  appears  to  have  considered the  voltage  issue  in  the
abstract, without taking into account any facts specific  to  the
Line.
          Moore testified, for example, that the approximate half-
foot  of additional vertical clearance required for a 138kV  line
as  compared to a 115kV line . . . is quite significant.  But  he
did  not review whether the vertical clearance of the Line  falls
short   of   any   applicable  height  requirements   for   138kV
transmission lines.  Similarly, Moore explained how phase spacing
and   insulation  standards  increase  with  voltage.   But   his
testimony  stops short of any assertion that the  Line  fails  to
comply  with  requirements under the law  for  those  parameters.
Moore  reached  only the general conclusion that  increasing  the
Line   voltage   leads  to  increased  outages,   lower   service
reliability to [MEA] members, additional safety risks, litigation
defense  costs, and an increased exposure to liability on  [MEA]s
part.   This relationship may exist, but neither Moores testimony
nor  that of any other witness demonstrated a causal relationship
of sufficient significance to claim that the Commissions findings
are not supported by substantial evidence.
          In contrast, testimony from LaRue directly supports the
Commissions finding that operation of [the Line] at 138kV  should
not  result in substantial injury to MEA or its customers, in the
substantial detriment to the services furnished by MEA, or in the
creation  of  safety hazards.  LaRue dismissed Moores  testimony,
explaining that [a] cursory review of the parameters noted by Mr.
Moore, compared to the actual design, reveals that operating  the
[Line] at 138kV does not necessarily violate the three parameters
questioned  by Mr. Moore.  In his testimony, LaRue confirmed  the
adequacy  of the Lines phase spacing and insulation for operation
at  138kV,  noting  that  if  an excess  of  voltage  caused  the
flashovers  on the Line, he would anticipate that it would  be  a
continual problem.  He conceded that he could not confirm whether
anyone  has  filled  in  the ground under [the  Line]  to  reduce
          clearance, but he pointed out that [s]uch activities should have
been noted by [MEA], and cited the ground clearance parameter  in
particular  as  reflecting the conservatism in the Lines  design.
Finally,   in  response  to  cross-examination  by   MEA,   LaRue
maintained  that the Line is an appropriate line to be  energized
at 138kV.
          MEA points out that LaRue has not walked the Line since
1977  and that he fails to take into account the rapid growth  of
the  Matanuska Susitna Borough over the past thirty  years.   But
while  MEA  has  operated the Line at 138kV across the  Matanuska
Susitna  Borough for two decades, it warns only of an incremental
increase  in safety hazards wrought by operation at  138kV.   MEA
argues  that  the  Line  at 115kV posed a negligible  risk  to  a
snowmobiler crossing beneath it, while the Line at 138kV poses  a
greater  risk.   But MEA fails to invoke the National  Electrical
Safety  Code or any other objective standard to assert that  this
risk  was not sufficiently abated by the conservatism built  into
the Lines design parameters.
          Finally, MEA presents insufficient evidence to overcome
the  Commissions  conclusions  regarding  the  link  between  the
outages  that occurred along the Line to its operation at  138kV.
Robert  Drake,  MEAs Director of Engineering,  pointed  out  that
flashovers  and  outages occurred on the Line at  a  much  higher
rate,  and  he blamed most of these outages of unknown  cause  on
inadequate  insulation.  But Haagenson disputed Drakes assertion,
testifying  that  theres lots of causes for outages.   And  LaRue
testified  that  an  excess  of  voltage  would  cause  continual
flashovers  rather  than the sporadic problems experienced  along
the  Line.   Finally,  MEA  fails to  challenge  the  Commissions
assertion that approximately 30 outages over a 17-year period are
not  excessive, and the revenue loss associated with such outages
is  more  than offset by the wheeling revenues generated  by  the
joint use and interconnection.
          In  conclusion,  we are convinced that  the  Commission
examined  the  evidence presented by the parties,  including  the
testimony  of  experts in the field, and on  the  basis  of  that
evidence  decided  that  the Line could be  operated  safely  and
reliably at 138kV.  Because substantial evidence supports it,  we
affirm the Commissions decision.
     B.   Any  Error Made by the Hearing Commissioner in  Denying
          MEAs  Request for Further Questioning of Haagenson  Was
          Harmless.
          
          MEA  argues  that  the Commission committed  reversible
error  when it denied its request to cross-examine Golden  Valley
officer  Steven Haagenson.  Although MEA had previously  declined
to  cross-examine Haagenson, Commission Chairman  Giard  recalled
Haagenson for further questioning that went beyond the  scope  of
his  pre-filed  testimony.  After being recalled  to  the  stand,
Haagenson  testified  about the costs of reverting  the  Line  to
115kV  operation, including approximately one million dollars  to
install a transformer.  He then continued:
          HAAGENSON:  Theres also the ancillary cost as
          well  as  being disconnected to be  modified.
          You   cant   get  power  from  Fairbanks   to
          Anchorage either.
          
          CHAIRMAN  GIARD:  How long do you think  that
          would take, the disconnection, is it weeks or
          days or . . .
          
          HAAGENSON:   Youve got to build a  substation
          and  pad  and breakers to connect it together
          so  Id say youre six months to a year, I dont
          know.
          
Counsel for MEA sought a clarification at the close of Haagensons
testimony:
          MEAS COUNSEL: Your honor, no wait, we have no
          questions for Mr. Haagenson originally, but I
          do  have  one  question that is  prompted  by
          Commissioner Giards, a clarification prompted
          by  her question that I would like to ask Mr.
          Haagenson.
          
But  the hearing examiner refused to permit cross-examination  of
Haagensons  testimony  because MEA had  failed  to  cross-examine
Haagenson on his initial testimony:
          HEARING  EXAMINER CLARK: Well,  ordinarily  I
          only allow examination for any questions that
          exceed  the  scope of examination  and  since
          there was none I dont really have a whole lot
          of options there.
          
          MEAS COUNSEL: All right.

MEAs counsel said nothing further to apprise the hearing examiner
of  what  specific  issue  she wished  to  clarify  when  seeking
permission for additional questioning.
          As  Alaska Evidence Rule 103 makes clear, we  will  not
reverse  a ruling to exclude evidence unless a substantial  right
of  the party is affected, and the substance of the evidence  was
made known to the court by offer or was apparent from the context
within  which questions were asked.  MEAs appeal falls  short  of
meeting all of these requirements.
          We  agree  with the superior court that by  failing  to
make  an offer of proof, MEA waived its claim of error on appeal.
Nothing  in  the  context of MEAs request to ask a  clarification
question  makes  apparent that it sought to challenge  Haagensons
testimony on the potential downtime associated with reverting the
Line  to 115kV operation.  The transcript shows that MEAs counsel
made  only a vague reference to Chairman Giards question, failing
to  indicate which of the many questions asked by Chairman  Giard
gave  rise to an answer from Haagenson that affected one of  MEAs
substantial rights.
          MEA  argues  that the Alaska Rules of Evidence  do  not
apply  to  this case because the Alaska Administrative Code  does
not bind hearing officers to follow the rules of evidence.13  But
MEA  confuses this grant of discretion to administrative officers
with its own obligations for preserving its rights on appeal.  We
          have held in the context of other administrative appeals that a
partys failure to make an offer of proof acts as a waiver of  any
claim of error regarding the exclusion of unspecified evidence.14
That  rule  applies here to exclude MEAs claim of error regarding
the exclusion of further testimony from Haagenson.
          Second,   assuming   that  the   hearing   commissioner
committed error by denying MEAs request for further questioning,15
MEA  must  still show that the alleged error bore  a  substantial
influence on the outcome of the case.16  MEA maintains  that  the
Commission   misunderstood   Haagensons   testimony.    Haagenson
testified that construction of a substation and pad and  breakers
to  connect [the Line and the Intertie] together could  take  six
months  to a year.  The Commission based its decision in part  on
its  observation  that the [L]ine would not  be  operational  for
approximately  six  months to one year while  a  transformer  was
installed.  Golden Valley concedes that the Commission  erred  in
this  factual  determination.   Construction  of  the  facilities
necessary  to revert the Line to 115kV operation could extend  up
to a year, but the disconnection time associated with the voltage
shift apparently would take at most 1-2 hours.
          We  do  not  view  this possible  factual  error  as  a
substantial   influence  on  the  outcome  of  the   case.    The
Commissions   decision  primarily  addresses   the   safety   and
reliability of operating the Line at 138kV, rather than the  cost
of  operating  the  Line at 115kV.  After  having  dismissed  the
safety  and  reliability concerns raised by MEA, the  Commissions
decision notes that [c]onversion of the [L]ine to 115kV usage  at
this  time  would require approximately $1 million to  install  a
transformer.    There  is  no  persuasive   evidence   that   the
expenditure  is  necessary.  Only after reaching this  conclusion
did  the  Commission  make  its alleged  misstatement  that  [i]n
addition,  the  [L]ine would not be operational for approximately
six  months to one year.  If the evidence failed to convince  the
Commission  that the conversion would justify the million  dollar
cost of a transformer, the additional costs of disconnection  are
unlikely   to  have  influenced  the  outcome.   The  Commissions
decision  gives  little indication that the  downtime  associated
with reversion drove its analysis.
V.   CONCLUSION
          Because  substantial evidence supports the  Commissions
determination  that the Line can operate safely and  reliably  at
138kV,  and because any error in refusing MEAs request for cross-
examination was harmless, we AFFIRM.
_______________________________
     1     The  Alaska Energy Authoritys predecessor, the  Alaska
Power Authority, managed the construction.

     2     According  to MEA, Golden Valley Electric Association,
Inc. (Golden Valley) expressed interest in these negotiations but
refused to enter into a routine confidentiality agreement.

     3     Specifically, Golden Valley; Municipality of Anchorage
d/b/a   Municipal  Light  and  Power  (ML&P);  Chugach   Electric
Association,  Inc.;  and City of Seward,  d/b/a  Seward  Electric
System filed applications with the Commission.

     4     The  parties also presented evidence to the Commission
in  support  of rival wheeling rates  the compensation  that  MEA
receives for the joint use and interconnection of the Line.

     5     Golden  Valley concedes that the Commission  erred  in
this  factual  determination.   Construction  of  the  facilities
necessary  to revert the Line to 115kV operation could extend  up
to  a  year; however, the disconnection time associated with  the
voltage shift apparently would take at most 1-2 hours.

     6     Alyeska  Pipeline Serv. Co. v. DeShong, 77 P.3d  1227,
1231 (Alaska 2003).

     7     Amerada  Hess  Pipeline Corp. v. Regulatory  Commn  of
Alaska, 176 P.3d 667 (Alaska 2008).

     8    Fleegel v. Estate of Boyles, 61 P.3d 1267, 1270 (Alaska
2002).

     9    AS 42.05.321.

     10    MEA argues that the issue whether the Commission erred
in  requiring the Line to operate at 138kV is a question  of  law
going to the Commissions jurisdiction under the provisions of its
enabling  act, AS 42.05.141.  But MEAs claim that the  Commission
acted  outside  of  its jurisdiction hinges  on  complex  factual
assessments  of the proper safety parameters for the  Line.   MEA
misplaces  its reliance on Homer Electric Assn, Inc. v.  City  of
Kenai,  816 P.2d 182, 184 (Alaska 1991), in which we adopted  the
substitution  of  judgment test to review a lower  courts  ruling
that  the  Alaska Public Utilities Commission lacked jurisdiction
to decide a dispute.

     11     The  Department of Labor has promulgated  regulations
implementing  AS  18.60.580.   See 8 Alaska  Administrative  Code
(AAC)  70.025(b)  (adopting  the 2002  Edition  of  the  National
Electrical  Safety  Code by reference as the  minimum  electrical
safety standards of the state).

     12    MEA does not contend that Alaska law compels utilities
to  follow the Rural Electrification Administration standards  or
any  other  standards apart from the National  Electrical  Safety
Code.

     13    See 3 AAC 48.154(a).

     14     AT&T  Alascom v. Orchitt, 161 P.3d 1232, 1245 (Alaska
2007)  (citing Adamson v. Univ. of Alaska, 819 P.2d  886,  889-90
(Alaska 1991)).

     15     We  are  inclined to agree with MEA that the  hearing
commissioner erred in refusing the request for cross-examination.

     16    Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146
(Alaska 1999).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC