Indiana Gas Company, Inc. and Southern Indiana Gas & Electric Company, Appellants-Petitioners,
Indiana Utility Regulatory Commission, et al, Appellee-Statutory Parties.
from the Indiana Utility Regulatory Commission The Honorable
Loraine L. Seyfried, Chief Administrative Law Judge The
Honorable Carol A. Stephan, Commissioner Indiana Utility
Regulatory Commission Cause Nos. 44429-TDSIC-3 44430-TDSIC-3
ATTORNEYS FOR APPELLANT VECTREN ENERGY Robert E. Heidorn P.
Jason Stephenson Vectren Corporation Evansville, Indiana
Wayne C. Turner Patrick A. Ziepolt Hoover Hull Turner LLP
ATTORNEY FOR AMICUS CURIAE INDIANA ENERGY ASSOCIATION Brian
J. Paul Indianapolis, Indiana
ATTORNEYS FOR APPELLEE INDIANA UTILITY REGULATORY COMMISSION
Curtis T. Hill, Jr. Attorney General of Indiana David Lee
Steiner Deputy Attorney General Indianapolis, Indiana Beth E.
Heline General Counsel Jeremy R. Comeau Assistant General
Counsel Indianapolis, Indiana
ATTORNEYS FOR APPELLEE INDIANA OFFICE OF UTILITY CONSUMER
COUNSELOR, Randall C. Helmen Lorraine Hitz-Bradley Jeffrey M.
Reed Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE INDIANA INDUSTRIAL ENERGY
CONSUMERS, INC. Todd A. Richardson Jennifer W. Terry Joseph
P. Rompala Indianapolis, Indiana
of the Case
This case concerns the interpretation of Indiana Code §
8-1-39-1 et seq, the Transmission, Distribution, and
Storage System Improvement Charges and Deferrals
("TDSIC") statute ("TDSIC statute").
Specifically, the parties dispute whether a utility may, once
it has established a seven-year plan for its transmission,
distribution, and storage system improvements under Section
10 of the TDSIC statute, update its seven-year plan by adding
new projects under Section 9 of the TDSIC statute.
Appellants/Plaintiffs, Indiana Gas Company, Inc.
("Vectren North") and Southern Indiana Gas &
Electric Company ("Vectren South") (collectively,
"Vectren"), filed a petition with the Appellee,
Indiana Utility Regulatory Commission ("the
Commission"), under Section 9 of the TDSIC statute,
requesting to update their seven-year Section 10 TDSIC plan
with additional projects. The Commission partially denied
Vectren's petition, and now Vectren appeals the
Commission's denial. The Indiana Office of Utility
Consumer Counselor ("OUCC") is also an Appellee,
and we will refer to the Commission and the OUCC collectively
as "the Appellees."
On appeal, Vectren argues that the Commission erred when it
partially denied their petition because the Commission
misinterpreted the TDSIC statute. They also argue that the
Commission should be barred from denying their petition on
the basis of res judicata. Because we conclude that the
Commission did not misinterpret the TDSIC statute and the
doctrine of res judicata does not apply, we affirm the
1. Whether the Commission erred when it partially denied
Vectren's petition to update its seven-year TDSIC plan.
2. Whether the Commission should be barred from denying
Vectren's petition to add new projects under the doctrine
of res judicata.
Traditionally, a utility's rates charged to customers are
adjusted through periodic general rate cases. These can be
"expensive, time consuming, and sometimes result in
large, sudden rate hikes for customers." NIPSCO
Indus. Group v. N. Ind. Pub. Serv. Co., 31 N.E.3d 1, 4
(Ind.Ct.App. 2015). Another way to adjust rates is through a
"tracker" proceeding, which is a cost-recovery
proceeding that allows smaller increases in rates so that a
utility can recover costs for specific projects between
general rate case proceedings. Id.
In 2013, the Legislature enacted the TDSIC statute, Indiana
Code § 8-1-39-1 et seq, which allows a utility
to petition for a tracker proceeding for new or replacement
electric or gas transmission, distribution, or storage
projects, and thereby recover its costs in a timelier manner
than through a general rate case. Under Section 10 of the
TDSIC statute ("Section 10"), a utility may create
a seven-year plan for its predicted transmission,
distribution, and storage improvements and may seek approval
of that plan from the Commission. Ind. Code § 8-1-39-10.
Following notice and a hearing on the petition, the
Commission is required to issue an order that includes the
(1) A finding of the best estimate of the cost of the
eligible improvements included in the plan.
(2) A determination whether public convenience and necessity
require or will require the eligible improvements included in
(3) A determination whether the estimated costs of the
eligible improvements included in the plan are justified by
incremental benefits attributable to the plan.
I.C. § 8-1-39-10(b). Section 10 provides that "[i]f
the [C]ommission determines that the public utility's
seven (7) year plan is reasonable, the [C]ommission shall
approve the plan and designate the eligible transmission,
distribution, and storage improvements included in the plan
as eligible for TDSIC treatment." Id.
Once the Commission has approved a utility's Section 10
seven-year plan, the utility may recover 80% of the capital
expenditures and costs approved by the Commission, although
it must wait to recover the remaining 20% during its next
general rate case. During the seven years of the plan, the
utility may petition to recover 80% of its costs or for an
"update" of the plan under Section 9 of the TDSIC
statute ("Section 9"). A utility's Section 9
petition must, in relevant part:
* * *
(2) include the public utility's seven (7) year plan for
eligible transmission, distribution, and storage ...