a quorum was present as followsnmprc.state.nm.us/docs/older docs/12-14-16 minutes.pdf ·...

MINUTES OF THECASE MANAGEMENT OPEN MEETING

NEW MEXICO PUBLIC REGULATION COMMISSIONDecember 14, 2016

TIME: 9:30 a. m. PLACE: PERABuilding

4th Floor Hearing Room1120 Paseo de PeraltaSanta F~, New Mexico 87501

A quorum was present as follows:

Members Present:Commissioner Valerie Espinoza, ChairpersonCommissioner Karen L. Montoya, Vice-ChairpersonCommissioner Lynda LovejoyCommissioner Patrick H. LyonsCommissioner Sandy Jones

Members Absent:

Staff Present:Ernest Do Archuleta, Chief of StaffMichael Smith, Acting General CounselRussell Fisk, Associate General CounselJudith Amer, Associate General CounselDavid Black, Associate General CounselAvelino Gutierrez, Transportation Division DirectorFidel Archuleta, Transportation DivisionAmanda Gray, Transportation DivisionCados Padilla, Public Information OfficerCydney Beadles, Legal Division DirectorAnthony Medeiros, Hearing ExaminerMichael Ripperger, Telecommunications Bureau ChiefMarc Martinez, Legal Division

Others PresentCarl Boaz, Stenographer

CALL TO ORDER

New Mexico Public Regulation CommissionMinutes of the Case Management Open MeetingDecember 14, 2016

The Case Management Open Meeting was scheduled at 9:30 a.m., pursuant to proper noticeunder N MSA 1978, 10-15-1(c), and the Commission’s Open Meeting Policy. Commissioner ValerieEspinoza, Chairperson, called the Case Management Open Meeting to order at 9:30 a.m., in the FourthFloor Hearing Room, PERA Building, 1120 Paseo de Peralta, Santa F~, New Mexico.

A copy of the sign-in sheet for the Case Management Open Meeting is incorporated herewith tothese minutes as Exhibit 1.

A copy of the Agenda for the Case Management Open meeting is incorporated herewith to theseminutes as Exhibit 2.

A copy of the Public Comment sign-in sheet for the Case Management Open Meeting is.incorporated herewith to these minutes as Exhibit 3. :.

1. PLEDGE OF ALLEGIANCEISTATE PLEDGE

The Pledge of Allegiance and State Salute to the Flag were recited.

2. INTRODUCTION OF SPECIAL GUESTS

Chairperson Espinoza welcomed songwriter and performer, Mr. James Rivera to the meeting andcongratulated him on his musical performance. She honored him with a certificate of service to the citizensof New Mexico. He spoke briefly to the Commission and the public and noted they started filming a TVshow last month here in Santa Fe after turning down filming in California to keep it here in Santa Fe.

3. CONSIDERATION AND APPROVAL OF THE AGENDA

Mr. Smith said Commissioner Lyons had requested to move items A-4 and A-6 to the consent agenda.

Mr. Randy Bartels said he filed an objection to the case in A-4.

Commissioner Lyons asked to move A-6 to Consent.

Commissioner Montoya moved to approve the agenda as amended with A-4 moved to Consent.Chairperson Espinoza seconded the motion and it passed by unanimous (5-0) voice vote.

4. CONSIDERATION AND APPROVAL OF MINUTES


~ ....

¯ Minutes of the Case Management Open Meeting for November 9, 2016

Commissioner Montoya moved to approve the minutes of November 9, 2016 as presented.Commissioner Lovejoy seconded the motion and it passed by unanimous (5-0) voice vote.

5. CONSENT ACTION

A. Transportation Matters:

1) 16-00178-TR-M IN THE MATTER OF MAGDALENA VOLUNTEER FIRE DEPARTMENT’SREQUEST FOR A VARIANCE FROMNMPRC TRANSPORTATION RULE18.3.14.11(A)(1)(David Black) Order

2) 16-00287-TR-M IN THE MATTER OF THE APPLICATION OF MYRIDE, LLC FOR ACERTIFICATE TO PROVIDE NON-EMERGENCY MEDICAL TRANSPORTSERVICE(David Black) Order

3) 16-00290-TR-M IN THE MATTER OF THE APPLICATION OF GAWRYK & CO. LLC, D/BIACUSTOMER WESTERN TRANSPORT, FOR A CERTIFICATE TO PROVIDELIMOUSINE SERVICE.(David Black) Order

This matter was approved in the consent agenda.

4) 16-00290-TR-M IN THE MATTER OF THE APPLICATION OF GAWRYK & CO. LLC, D/BIACUSTOMER WESTERN TRANSPORT, FOR A CERTIFICATE TO PROVIDELIMOUSINE SERVICE.(David Black) Order

Commissioner Lovejoy moved to approve the orders for these consent cases. CommissionerLyons seconded the motion and it passed by unanimous (5-0) voice vote. So Ordered.


6. PUBLIC HEARING

This Public Hearing was on the record and this portion of the meeting was transcribed by a courtreporter and not part of these minutes. The Commission went on the record at 9:43 a.m.

16-00012-TR-EN IN THE MATTER OF THE REVOCATION OF OPERATING AUTHORITIES FORFAILURE TO COMPLY WITH FINANCIAL RESPONSIBILITY REQUIREMENTS.NEW MEXICO PUBLIC REGULATION COMMISSION, TRANSPORTATIONDIVISION, PETITIONERV,

AC SANTIZO TRUCKING, #56531; A RSERVICES LLC, #56613; BARRERA & COMPANY LLC, #56176; BOBS AUTO,#7156; CHAVES TRANSPORTATION, #55036; CHECKER CAB CO., #1005;D2L TRUCKING, #54891; DOMINGUEZ TRUCKS CO., #56858; IRON PRIDETRUCKING, #56911; JARRETTS SEPTIC TANK PUMPING, #54463; LARA’STRANSPORTATION, #56405; LAWRENCE BACHICHA TRUCKING INC.,#53248; LOS APARICIO TRUCKING, #56606; RABBIT BLUES TRANSPORT,LLC, #56865; SKY OILFIELD SERVICES LLC, #55088; THE ROCK TRUCKINGLLC, #55134; TRI-ClTY TRANSFER AND STORAGE, #1233, RESPONDENTS.(Avelino Gutierrez, Fidel Archuleta)

The hearing ended and the Commission went off the record and returned to the Open Meeting agendaat 9:56.

7. REGULAR ACTION AND DISCUSSION

A, Transportation Matters:

3) 16-00012.TR-EN IN THE MATTER OF THE REVOCATION OF OPERATING AUTHORITIES FORFAILURE TO COMPLY WITH FINANCIAL RESPONSIBILITY REQUIREMENTS.NEW MEXICO PUBLIC REGULATION COMMISSION, TRANSPORTATIONDIVISION, PETITIONERV,

AC SANTIZO TRUCKING, #56531; A RSERVICES LLC, #56613; B~RREP~ ~ t,~uo^~uv......., n.........,’ ’ " ,~==4 w......., v, -..--I~nR-~ AUTO,#7156; CHAVES TRANSPORTATION, #55036; CHECKER CAB CO., #1005;D2L TRUCKING, #54891; DOMINGUEZ TRUCKS CO., #56858;-IRON~"rm ir, wu~_ #~=~,44. JARRETTS SEPTIC TANK PUMPING, #54463; LARA’STRANSPORTATION, #56405; LAWRENCE BACHICHA TRUCKING INC.,#53248; LOS APARIClO TRUCKING, #56606; RABBIT BLUES TRANSPORT,LLC, #56865; SKY OILFIELD SERVICES LLC, #55088; THE ROCK TRUCKING


LLC, #55134; TRI-CITY TRANSFER AND STORAGE, #1233, RESPONDENTS.(Judith Amer) Order

During the public hearing, Mr. Gutierrez requested a modification of the order to make two changes:Mr. Barrera called and asked that his warrant, #56176 to Barrera & Company LLC, not be canceled until hecan communicate with his insurance company. If the PRC receives Form E by this Friday, he asked thatthe warrant not be revoked. The owner of Iron Pride Trucking, #56911, called and canceled their warrantrather than be revoked.

Ms. Amer asked that the proposed order be modified to delete Iron Pride Trucking and possibly Barrera& Associates if their Form E is filed by Friday. She would not file the order until Monday.

Commissioner Jones asked who is responsible for making sure that Form E is received or to revoketheir authority if the Form E is not received.

Ms. Amer said the motion could make the Transportation Division Director responsible for that.

Commissioner Lyons moved to approve the order as amended and direct the TransportationDirector to determine that Form E is received for Barrera & Associates with the order filed onMonday. Chairperson Espinoza seconded the motion and it passed by unanimous (5-0) voice vote.

4) 16-00284.TR.M IN THE MATTER OF THE APPLICATION OF MED.TRANS CORPORATIOND/B/A AEROCARE FOR A CERTIFICATE TO PROVIDE AMBULANCESERVICE.(Judith Amer) Order

Ms. Amer provided information regarding this matter to the Commission. The proposed Order woulddeny Elite’s request for permissive intervention and the holding of a public hearing on the Application andwould grant the Applicant a Certificate to provide ambulance service from points and places in CurryCounty to points and places in the State of New Mexico, and return, with equipment to be stationed at 918Parkland Drive, Clovis, New Mexico, 88101.

On October 26, 2016, the Applicant filed its Application. On October 26, 2016, a "Notice of Application"was posted on the Commission’s intemet web site and sent by electronic mail to all motor carriers, publicofficials, agencies and all other persons or entities that provided electronic mail addresses to theCommission for the purpose of publication, advising such persons of the filing and posting. The Noticeremained posted on the Commission’s website for 20 days as evidenced by the signed "Affidavit ofAmanda Gray" filed in this docket on November 16, 2016. The twenty-day Notice Period expired onNovember 16, 2016.

On November 15, 2016, during the Notice Period, Elite Medical Transport, LLC filed an Objection and


Application for Permissive Intervention in connection with the Application. Elite’s Objection states that itholds PRC Certificate No. 54111 authorizing Elite to provide ambulance service in Luna County, HidalgoCounty, Eddy County and Roosevelt County (not Curry County). Elite states that since October 18, 2015,Elite has been specifically requested for transport 197 times by the hospital in Clovis and at least 120occasions on a mutual aid basis when local assets were unavailable. Elite’s Objection also states that sinceestablishing operations in Portales, Elite it has provided Plains Regional Hospital in Clovis BLS transport on78 occasions and ALS transport on 42 occasions, representing approximately 600 unit hours on task).Elite’s Objection maintains there is an on-going need for additional scheduled ambulance transport capacityin Curry County which Elite is able to satisfy.

Elite submitted an application for permanent authority to service Curry County to the Commission’sTransportation Division for pre-filing review on October 31,2016, five days after Med-Trans. But theTransportation Division determined that their application was incomplete and it is still incomplete becausethey failed to provide letters of support.

On December 1, 2016, after receiving the objection, the Commission issued a bench request whichordered the Transportation Division Director to file a written response to Elite’s assertions no later thanDecember 8, 2016.

On December 5, 2016, Med-Trans filed a response in opposition to Elite’s Objection requestingthat the Commission deny Elite’s request for permissive intervention because Elite was simply trying todelay approval of Med-Trans’ application. Med-trans asserted that Elite has no standing to intervene and isnot an interested person; no ambulance authority, either temporary or certificated in Curry County; does nothave a completed application pending before the Commission; has no station or facilities in Curry County;has not a present capability or commitment to provide ambulance transportation services to resident s ofCurry Count. Further, Mr. Richards, attorney for the City of Clovis and Clovis Fire and Ambulance Service,wrote a letter to Mr. Bartels, attorney for Elite, demanding that Elite immediately terminate and cease allambulance services originating in Curry County, unless there is a documented call and granted permissionby the Clovis Ambulance Service, the certificated provider.

Commissioner Jones asked if Mr. Richards is the attorney for the ambulance service.

Ms. Amer said no. He is the Attorney for the City of Clovis. She didn’t know if he was also theattorney for the ambulance service.

Commissioner Jones asked if the City Attorney also representative the Fire and Ambulanceservice.

Ms. Amer thought Mr. Richards was the attorney for all city departments.

Commissioner Lyons clarified that Mr. Richards is the City Attorney. There is also an attorneypresent for Elite, an attorney for Med-Trans and also the Clovis Fire Chief.


Ms. Amer agreed.

Ms. Amer said that on December 8, 2016, Staff filed its Response to Bench Request Order whichconcludes that Staff has determined that the Commission should neither grant permissive intervention toElite in this matter nor assign the case to a Hearing Examiner to hold a public hearing on whether or not togrant the application based upon three reasons: 1) Elite is not currently certificated to provide ambulancetransportation services in Curry County and has no standing to intervene; 2) upon Staff’s knowledge andbelief, there is no established mutual aid agreement in place between the appropriate entities that wouldallow for Elite to provide ambulance transportation services within Curry County absent certificatedauthority; and 3) at this time, Elite is not an interested person.

The New Mexico Motor Carrier Rules permit the Commission to hold a hearing pursuant to anyobjection in its discretion or on its own motion for any reason. § 65-2A-13 A, NMSA 1978. However, thereis no reason to hold a hearing in this matter when Elite does not meet the requisite standard for a protestcarrier or interested party and no other protests or objections have been filed. Staff stated that currently,Elite is certificated by the Commission to provide ambulance services in Luna, Hidalgo, Eddy, andRoosevelt Counties of New Mexico. Certificates issued by the Commission, pursuant to § 65-2A-8 F (1),NMSA 1978, are generally county specific in that the "Territorial Endorsements" are authorized on the basisof county or incorporated municipal boundaries subject to other specification reasonably allowed orrequired by the Commission. At present, Elite is not authorized to supply ambulance transportationservices in Curry County. Staff asserts that because Elite is not territorially endorsed to provide service inCurry County, Elite cannot show the adverse impact to its ambulance service as required by in the statute,as a full-service provider and potential protestor. Staff points out that Elite has no application pending withthe Commission at this time because Elite’s Application submitted on October 31, 2016 was deemedincomplete in that it lacked the requisite affidavits or other evidence required by the Commission’s MotorCarrier Rules. In comparison, Staff indicates that the Application by Med-Trans is complete and includesletters of support that satisfy the requirement of 18.3.2.13 G (3) NMAC. These letters of support on behalfof Med-Trans emphasize the on-going need for additional scheduled ambulance transport capacity in CurryCounty. Staff disputes Elite’s claims that the Med-Trans Application is deficient in that it does not satisfy therequirements of § 65-2A-8(B)(3) which states that, "for an application for ambulance service, thetransportation service to be provided under the certificate is or will serve a useful public purpose that isresponsive to a public demand or need." Staff argues that the letters of support submitted in the Med-Trans Application by Presbyterian - Plains Regional Medical Center, the Clovis Fire Department, and theBoard of Curry County Commission illustrate that the proposed services by Med-Trans would provide auseful public service that is responsive to a public need. Further, Staff disputes Elite’s claims that Applicanthas not proven an "unmet need" since the letters of support substantiate an unmet need, and, additionally,by Elite’s own claim that it made at least 120 transports and that there were 197 requests for service inCurry County made to Elite since October 18, 2015. Staff states that while these transportation servicesprovided by Elite were not authorized by the Commission, the number of transports speaks to an ongoingpublic need for the services proposed by Med-Trans. Regarding Elite’s claims that ambulance


transportation services by Elite in Curry County were provided on a "Mutual Aid" basis, Staff stated that, toStaff’s knowledge, there is no written Mutual Aid agreement in place between Elite and Curry County.According to Staff, even if Elite had a wdtten mutual aid agreement with a certificated ambulance providerin Curry County, such mutual aid agreement would not give Elite the requisite service territory in CurryCounty required to protest and intervene in this docket.

She said that for all these reasons, the proposed order would concur and deny Elite’s permissiveintervention. Since it is permissive, the Commission has discretion to grant or deny. This should not hold upapproval for the Med-Trans certificate which is based on need because another carrier wants to enter theterritory. So the order would grant the certificate.

Commissioner Lyons moved to approve the order. Commissioner Lovejoy seconded themotion. ,

Commissioner Jones asked if the City of Cloves wrote a letter in support of the Med Transapplication.

Ms. Amer agreed. She also clarified that Elite has no authority to operate in Curry County but doesin nearby counties. Elite claimed in their request for permissive intervention that they have been asked totransport in Curry County.

Commissioner Jones understood that as soon as Med Trans files for a certificate, Elite wants toand files for a certificate. He asked if Curry County needs more ambulance service.

Ms. Amer agreed.

Commissioner Jones asked how long would it take if it went to a hearing.

Ms. Amer wasn’t sure but suggested probably five months.

Mr. Gutierrez said it could last up to a year and probably would be at least six months.

Commissioner Jones thought if there is that much of a need, some ambulances with state-wideauthority might be ordered to serve over there in Curry County.

Ms. Amer was not sure the Commission could force that to happen.

Mr. Gutierrez said it would be difficult. The existing ambulance service there is already certificated.Any new entrant would have to get letters of support from the existing providers, which would beproblematic.

Commissioner Jones noted that a statewide certificate means they must serve.


Mr. Gutierrez said that is usually invoked only when an ambulance service goes out of business.This is different because there are other ambulance companies operating there and can and do provideservice in Curry County already.

Commissioner Jones reasoned that if it is going to take six months, the need doesn’t go away.

Mr. Gutierrez said the need is also met by mutual aid into the county from other places. But mutualaid is not to be made on a regular basis but only in case of emergency that requires other companies tocome in. And they are supposed to have the mutual aid agreement before doing that. The TransportationDivision prefers they have a certificate.

Commissioner Jones asked if Elite, coming in without the mutual aid agreement, is in violation of therules. ~

Mr. Gutierrez said that is the subject of the investigation. He would say they are in violation.

Commissioner Jones said he would support the order but there is a problem when a company whosays they are not servicing the area and someone called them to help out. And the statewide ambulancesthink they don’t have to serve when there is a problem somewhere. The Commission sees these territorialfights and lawyers create a ruckus. It made him wonder what kind of deals are being made in thebackground. If Elite has served there illegally, the Commission should issue an order to show cause. "It is alawyer’s game. And the accident victim has to pay the bill."

The motion to approve the order passed by unanimous (5-0) voice vote. So Ordered.

5) 16-00321-FM IN THE MATTER OF AMENDING CERTAIN RULES PERTAINING TO THESTATE FIRE MARSHAL, INCLUDING REPEALING AND REPLACING THE2003 INTERNATIONAL FIRE CODE WITH THE 2015 INTERNATIONAL FIRECODE.

(David Black, Avelino Gutierrez, John Standefer) Order

Mr. Black provided information regarding this matter to the Commission. He said at least fourchanges to the Fire Marshal’s rules have taken place since the last time the rule was looked at in 06-00243-FM in 2006. That rulemaking provided for 16 hearings around the State.

Commissioner Lyons asked if this one would have sixteen public hearing locations.

Mr. Black said it refers to one hearing in Santa re. That follows the formal rulemaking process.Although not in the packet, the order is asking the Fire Marshal to propose a procedural schedule and he


will set it. He apologized and explained that it was filed on Friday to meet the 72-hour turnaround. So therewas little time to prepare the notice and the order. He was asked by Staff to have this on the agenda today.

Commissioner Lyons said this appeared to be anti-business and it needed to be slowed down. Hewanted to be able to look at it in January. There are all kinds of things in here that are not good for theeconomy.

Commissioner Lyons moved to table 16.00321.FM. Chairperson Espinoza seconded themotion and it failed 2-3 on a voice vote with Commissioners Lovejoy, Jones and Montoyadissenting.

Mr. Black said the order establishes a rulemaking hearing process but because of the quickturnaround, he was unable to consult with Marshal Standefer on the proposed public comment hearingdates nor with Mr. Gutierrez. The petition requests a substantial revision of Part 5 of Chapter 25 NMAC,repealing the currently adopted 2003 International Fire Code and replacing it with the 2015 Code and toamend parts 1, 3 and 6 of Chapter 25, Title 10 for the NMAC as described in the order and to repeal andreserve part 2 of Chapter 5, Title 10 of NMAC. The petition is to schedule and conduct public commentrulemaking hearings with verbal and written public comment and such other action that is just andreasonable. Fire Marshal Standefer can answer questions about the rules.

Marshal Standefer said they use the International Fire Code as well as the building codes. The FireMarshal must see that the code aligns with the applicable building codes. It falls under the NM ConstructionIndustries Division who amended their ICC Standards rule, so we need to change to be compatible withthat building code.

CID just moved into the 2012 IBC and for Fire to remain with the 2003 Code would causeproblems. So our move to adopt the 2015 Code is simply making it compatible with CID’s code. He hopedthey could determine the changes needed and identify what conflicts there are with state code such asfireworks.

Commissioner Lyons said he had several questions and started going through the proposal.

The first was 10.25.5.5 - building inspection and asked why that was in there.

Marshal Standefer said much of that reverts to National Fire Protection Association code - agrandfathered clause to allow to put the building under scrutiny using the code in force at the time it wasbuilt. He felt this is very:important from enforcement but also for the building part if the occupancyclassification has not been changed since 2007 from 1989.

Commissioner Lyons reasoned that if it was between 1989 and 2007, the Fire Marshal wouldrequire them to refile and retrofit to meet the 2015 code.

New Mexico Public Regulation CommissionMinutes of the Case Management Open MeetingDecem ber 14, 2016 Page lO

Deputy Fire Marshal John Ludi came forward and explained that they asked to eliminate the 1989building code and replace with the life safety code of 2007. Any building built before 2007 would have nochanges to that. The only time it is not okay is with major remodeling. There are three levels of constructionchange and Level 3 is the only time a business may have to come up to code. Renovation has to be morethan 50% and only the section being remodeled has to change.

Commissioner Lyons went next to 25.5.20 regarding fire dampers and smoke control systems.

Marshal Standefer said in the 2014 legislation session, a Memorial directed his office to convene awork group to make recommendations about those systems. They convened the work group that includedCorrections, hospital associations and some said they didn’t want to participate because it costs too much.His ~feeling was that ClD should determine those inspections and how they should take place. So they sat,down with CID. If dampers are required, that is by CID. It is not unreasonable to inspect and make sure thedampers are there. So with new construction - they must comply with the mechanical code. ~

Commissioner Lyons asked if the Fire Marshal’s office wants to do those inspections.

Marshal Standefer said no - no - they are prohibited from doing them.

Commissioner Lyons asked him why they would not just take it out. He asked why the Commissionshould do this at Christmas time. "What is the timetable on this?"

Marshal Standefer said there is no deadline but it is as soon as possible.

Commissioner Lyons asked if there is only one hearing.

Marshal Standefer said there is one here and one in the southern part of the state.

Commissioner Lyons said having the 16 locations was very good and it got lots of people there.

Marshal Standefer said some of the hearings had no one show up.

Commissioner Lyons thought the Commission needs to slow this down and do it right.

Chairperson Espinoza agreed. No one has had a chance to give any input. Why the urgency? Thisis not good. She asked if the inspectors in the Fire Marshal’s office gave input. She asked Mr. Smith aboutit. ~

Mr. Smith said this is Mr. Black’s case.

Chairperson Espinoza pointed out that Marshal Standefer is leaving and a new Fire Marshal will beappointed.


Marshal Standefer said they didn’t set a time line for this but it needs to be updated.

Chairperson Espinoza noted that the certificate of fitness was taken out. "You people are alreadytrained. We would be suspended for making those inspections. She read that it is the duty of the PRC toprotect the health and safety.

Marshal Standefer explained that Fire Marshal staff cannot take the training if they are not in asheet metal union. He said they have difficulty with fitness. They need to make sure people who inspectsprinklers and refill extinguishers are all properly certified. "But what credentials do they need to show us?We never felt comfortable with that. We cannot come up with a good system to ensure they are qualified todo that. If we issue a certificate, they are still going to have the same licenses so we are just duplicatingwhat ClD does. We are relying 100% on CID, so why do we have to do it?"

Commissioner Montoya said she has been working with the Fire Marshal on this for some time andit came to her attention that we have legislation passed by Senator Sanchez and push-back on this issuebecause the GOP thought there was too much cost for businesses and it goes along with whatCommissioner Lyons was saying. If the fire dampers are not working, the fire can ravage a building veryquickly. All of these codes are extremely important for fire fighters and the people in the building during thefire. Emergency orders on fire dampers is needed. The legislature thought it was an important measure.The Commission could just take the damper portion with the emergency rule. When the cost issue israised, she wanted to ask how much a life is worth. So she proposed to take the fire damper portion onlyand consider it as an emergency. She read from a statement on how fire dampers can help retard a fire.

Chairperson Espinoza asked how the fire inspector can inspect a fire alarm if they are taking thataway from the inspectors. She asked if a fire damper is a life safety device.

Marshal Standefer said it is if used properly; it can slow down a fire.

Deputy Marshal Ludi said fire dampers are connected to the fire alarm system. They are life safetydevices.

Commissioner Lyons said this is taking power away from Fire Marshal and giving it to the unionreps. He said it is one of the worst proposals he had ever seen.

Mr. Gutierrez said he was told that the Fire Marshal was not the genesis for Part 5.

Chairperson Espinoza asked who inspects them now.

Marshal Standefer said dampers fall under the mechanical code.

Chairperson Espinoza asked who goes out.


Marshal Standefer said it is from CID. They decide if a sprinkler is required. Sprinklers can beinspected under the fire code. But the way it is written, it is impossible for a state employee to inspect, Theclassification determines what parts of the fire code are applicable.

Commissioner Jones asked if he wanted to open a rulemaking to adopt the 2015 fire code.

Marshal Standefer agreed - with some amendments.

Commissioner Jones reasoned that the Commission would just issue a NOPR today and wouldhave hearings on the rule later on.

Marshal Standefer agreed.

Commissioner Jones asked how many states have adopted the 2015 code.

Marshal Standefer said there are at least a dozen. Some don’t use IFC. He didn’t know how manyadopted IFC but probably 40-50%. He explained that it causes conflicts and confusion for the fire cede notto keep up with the building code.

Commissioner Jones didn’t think the Commission was legally obligated to wait on CID. "Why wouldwe continue to work under a code that is 14 years old? We are an independent state agency and it isreasonable to assume, whether it conflicts with another, that we need to stay up with the latest code. A 14-year change means a cost to business that wouldn’t be as much if we updated regularly."

Marshal Standefer shared the priority ranking for their inspections and he and Commissioner Jonesdiscussed the issue.

Marshal Standefer said they would consult CID if they suspected a problem. Some dampers arehard to get to in order to inspect.

Commissioner Jones felt the arrangement was too subjective and lacked accountability.

He saw no problem posting a NOPR today and carving out an emergency rule on dampers,

Commissioner Montoya made comments about the possible consequences from faulty dampers.

Commissioner Montoya moved to issue an emergency rulemaking for the fire dampers on the basis ofhealth and safety to bring forth a recommendation on December 28 or later for a final vote. CommissionerJones seconded the motion.

Commissioner Lovejoy said she would support opening a NOPR providing that public hearings be heldin at least two locations in the state and invite all stakeholders.


- . o _ ~,~’~.~ -.

Page13

Commissioner Montoya withdrew her motion.

Mr. Gutierrez said Mr. Black has an order that will allow the Fire Marshal to set hearings and work it outfor next year.

Commissioner Lyons asked to have it done next week. Chairperson Espinoza said she would secondthe motion.

Commissioner Jones asked if they could put in the dates next week.

Mr. Black agreed -.and the locations, too. ;~

Commissioner Montoya moved to table this matterto next Wednesday. Commissioner Jonesseconded the motion and it passed by unanimous (5-0) voice vote.

10. EXECUTIVE CLOSED SESSION PURSUANT TO NMSA 1978, SECTION 10.15-1(H)(7) TODISCUSS PENDING LITIGATION REGARDING DEWAYNE BEAGLES v. NMPRC; D.101.CV-2014-00609

Commissioner Montoya moved to change the order of agenda and to go into closed sessionpursuant to NMSA 1978, Section 10-15-1(H)(7) to discuss pending litigation regarding DEWAYNEBEAGLES v. NMPRC; D-101-CV-2014.00609. Chairperson Espinoza seconded the motion and itpassed by unanimous (3-0) roll call vote with Commissioner Lovejoy, Commissioner Espinoza andCommissioner Montoya voting in favor and none voting against. Commissioner Jones andCommissioner Lyons were not present for the vote.

The Commission went into closed session at 12:13 p.m. and ended the closed session at 12:46 p.m.

Commissioner Jones moved to return to open session. Commissioner Lyons seconded themotion and it passed by unanimous (4-0) voice vote. Commissioner Lovejoy was not present for thevote.

Chairperson Espinoza announced to the public that during the closed session, no actions were takenand the only matter discussed was pending litigation.

7)

B. Utility Matters:

16-00183-UT IN THE MATTER OF SOUTHWESTERN PUBLIC SERVICE COMPANY’S

New Mexico Public Regulation CommissionMinutes of the,Case Management Open MeetingDecember 14, 2016

APPLICATION REQUESTING: (1) ACKNOWLEDGMENT OF ITS FILING OFTHE 2015 ANNUAL RENEWABLE ENERGY PORTFOLIO REPORT; (2)APPROVAL OF ITS ANNUAL RENEWABLE ENERGY PORTFOLIOPROCUREMENT PLAN FOR PLAN YEAR 2017; (3) APPROVAL OF THEPROPOSED RATE FOR ITS 2017 RENEWABLE PORTFOLIO STANDARDRIDER; (4) APPROVAL OF ITS PROPOSAL TO CALCULATE AVOIDEDENERGY RELATED TO THE SUN-EDISON, LLC PURCHASED POWERAGREEMENTS; AND (5) OTHER ASSOCIATED RELIEF, SOUTHWESTERNPUBLIC SERVICE COMPANY, APPLICANT.(Anthony Medeiros) Recommended Decision(Judith Amer) Order

The Commission waited for staff to return and then went to the next agenda item,

Commissioner Lovejoy arrived.

8) 16.00311.UT PETITION FOR DECLARATORY ORDER CONCERNING PURPAOBLIGATIONS:ENCHANTED WINDS LLC, PETITIONER,V,

CENTRAL NEW MEXICO ELECTRICCOOPERATIVE, INC., RESPONDENT.(Judith Amer) Order

Ms. Amer provided inform ation regarding this matter to the Commission. This matter comes before theCommission on the Petition for a Declaratory Order Concerning PURPA obligations filed by EnchantedWinds LLC, Petitioner. The proposed Order finds and concludes that this Petition for Declaratory Ordershould be stayed until the FERC ~ssues a decision regarding the Petition for Enforcement filed by WWPPagainst the Commission in FERC Docket EL17-17 and all rights of appeal of the FERC decision haveexpired.

As the Commission may recall, Western Water filed against PNM and the Commission dismissed thatcomplaint and then Western Water filed an order for enforcement against the Commission and FERC andOGC Staff filed a protest. Several people intervened including the wind company that tried to intervene inthe Western Water case. Now, Enchanted Wind and Mr. Palmer, CEO, have intervened in the FERC case,The order before the Commission stays the petition. Enchanted Wind wanted a declaratory orderthat theyhad an obligation requiring Central to purchase all wind energy from them. The order doesn’t deny thepetition but restates it. And it orders Enchanted Winds to serve a copy of this Order, including a copy of thePetition on CNMEC and all of the parties to Case No, 11-00466-UT and shall file a Certificate of Serviceevidencing the same.

New Mexico Public Regulation CommissionMinutes of th~ Case Management Open Meeting£)ecember 14, 2016

...........

It is not a formal complaint, so the caption will be revised.

Commissioner Lyons understood the initial order will stand and agreed with that.

Commissioner Lyons moved to approve the order as presented. Commissioner Lovejoyseconded the motion and it passed by unanimous (5-0) voice vote. So Ordered.

7) 16-00183-UT IN THE MATTER OF SOUTHWESTERN PUBLIC SERVICE COMPANY’SAPPLICATION REQUESTING: (1)ACKNOWLEDGMENT OF ITS FILING OFTHE 2015 ANNUAL RENEWABLE ENERGY PORTFOLIO REPORT; (2)APPROVAL OF ITS ANNUAL RENEWABLE ENERGY PORTFOLIOPROCUREMENT PLAN FOR PLAN YEAR 2017; (3) APPROVAL OF THEPROPOSED RATE FOR ITS 2017 RENEWABLE PORTFOLIO STANDARDRIDER; (4) APPROVAL OF ITS PROPOSAL TO CALCULATE AVOIDEDENERGY RELATED TO THE SUN-EDISON, LLC PURCHASED POWERAGREEMENTS; AN D (5) OTHER ASSOCIATED RELIEF, SOUTHWESTERNPUBLIC SERVICE COMPANY, APPLICANT.(Anthony iedeiros) Recommended Decision(Judith Amer) Order

Mr. Medeiros presented information regarding this matter to the Commission. This case is the 2016RPS filing which looks backwards and forwards because it addresses the 2015 report with related mattersto the rule and also the filing of the 2016 plan. He explained that the 2015 plan is not before theCommission to approve it but to accept it. Though not required, it has to filed by July each year.

On procurements to meet the requirements and report on diversity, it shows that SPS met 30% of thewind portfolio requirement, 98% of solar and 7.7% of DG. There are no other resources in their portfolio.The fourth part is on 2015 procurement costs and shows SPS customers reported about $3.75 million ofeconomic wind costs and $500,000 solar with Sun Edison PPA costs. Economic means that there arerenewable sources that dealt with avoided costs and run through the FPPCAC in New Mexico and the fuelclause in Texas.

In his RD, the un economic costs are assigned directly to New Mexico retail customers. The actualcosts were $20 million for 2015 so it resulted in a net undercollection of $3.5 million.

Staff found it satisfies all requirements and he recommended to accept that report. The undercollectiongoes dght into the 2017 revenue requirement.

In the 2017 plan, SPS meets the RPS requirement after large cap customer sales and after the netretail sales for all others - 3.8 million MWH times 15% which ends up with retail customer less large caprequirement of 575,000 MWH. With large customer adjustments - the table on page 4 and in RD - and SPS


Ruth Sakya’s testimony provided SPS calculated the costs for 2017. The large customer revenueassignable to large customers (consumption Over 10k GWH) are capped at 2% or $108,00.

The Diversity requirements were in the table on page 5 and showed the requirements for wind, solar,biomass, DG and discretionary. It shows that SPS will meet its requirement and 89% of solar. Theypropose to use wind RECs to make up the deficit in solar. On DG, they will make up shortfall in wind RECswith PRC authorization. Energy costs for windI in 2017 are $15 million. The Commission is not required toapprove the 2018 plan. It is there for information purposes. And he recommended that no renewable costsbe in base but in the fuel clause.

SPS proposed last time to use their day ahead market price in SPP to calculate the energy costs.Right now, they have been using the backward-looking model. They propose to use QF’s - to use nodeprice where PPA facilities are and multiply by lost energy output. The benefit is that it is morecomprehensive and more transparent, lookingi at actual market. More of energy costs will go to theeconomic portion. He recommended, as he proposed in the last case that it be kicked out of this case andrecommended the DA & LMP for calculating energy vs. uneconomic energy from FPPCAC be approved.

Next was the revenue requirement fo~ 2017 of $18.5 million. The RCT they are required to procureis $10.85 million which is 5.94% over so they are way above the headroom.

SPS is asking for a variance from rule 572.14 on potential revenue requirement from offsets - theyare required to do the analysis. Given the magnitude of overance, he recommended approval of thevariance.

Next, he went to the 2017 rider rate and impacts. Ultimately, SPS came up after energy costs andrevenue requirement calculation in appendix A showing the calculation for 2017. The numbers included arefund owed to large cap of $1.8 million. The refund comes back through the RPS. There is a separatecredit for each shown on the bill.

To calculate the RPS rider, they ended up with a rider of .003769. The economic energy to beincluded is mostly attributable to the rider. In appendix B, he compared rates for all customer classes andwhat it would look like for residential customers. A typical customer using 750 kW would pay $2.83 insteadof 2.24 now. It is relatively a substantial increase but well below PNM’s most recent case and less than the2014 rider.

The last part of RD deals with the Solar REC purchase option. He asked that SPS figure out if theycould use the Roswell solar facility which was in Case 15-0083. His recommendation was that SPS look atthat. If they exercise the option - they would be far ahead. He also recommended SPS go back to Nextel toget RECs to meet the diversity requirement.

New Mexico Public Regulation CommissionMinutes of the Case Management Open MeetingDecember 14, 2016 Page17

From the last RD, the Commission granted the ROFR to use actual solar energy. They wentthrough it before in 2015.

Commissioner Lyons asked if it is pa~ of the $18.5 million.

Mr. Medeiros said no. For the Ch&vez and Roswell (Nextel) facilities, the rates are around 42. Thatis a function of technology development and the price coming down. He recommended they be instructedto talk with Nextel on it.

Commissioner Lyons thought it shoul,

Mr., Medeiros said it is not because tl~agreement with SPS but the 70 MW contract,whatever purpose. They are very concerned ~the EUEA. The RCT variance and method of~complied with the PNM decision in the 2015 fithan PNM’s. They are consistent with the m~

Mr. Medeiros summarized that the pl~

Ms. Amer said the proposed order wc

Commissioner Lyons referred to page 7 (~asked that they just add that to it.

Mr. Medeiros said right now the RD show:particular price put on the amount that would$1/REC for 2018. He didn’t know how most (

Commissioner Lyons commented that thi.,their customers.

Mr. Medeiros said the overhead market sl

Commissioner Lyons moved to appro~and it passed by unanimous (4-0) voice vo’Ordered.

Chairperson Espinoza moved the next tw~hear the AV Water case now, in order to accochild.

New Mexico Public Regulation CommissionMinutes of the Case Management Open Mee

¯ ! be part of the renewables.

ey have all of these commitments. Sun Edison entered into~ith Nextel is all or nothing of the 400k MWH and use it for~bout being above the headroom. They are butting up against;alculation is under market marginal credits. They alsoling and EPE that the methodologies are the same or different,thodology.

~n is reasonable and should be approved.

uld approve the RD. There was no opposition to the RD.

and said the premium on the RECs concerned him and

that Nextel doesn’t have the customer base. There is no)e required. They are not bound by the qualifications. It wasIher states do it to comply.is really complicated, but this would get cheaper rates to

ows reduction of energy.

e the order. Commissioner Lovejoy seconded the motion:e. Commissioner Jones was not present for the vote. S_~o

cases (USF cases) to the very end of the agenda in order to"nmodate an attorney who had to leave soon to pick up a

IingDecember 14, 2016

14) 16-00175-UT IN THE MATTER OFCO., LLC, SHOULDACT AND COMMIS,~IMPOSE SANCTIOI~(Russell Fisk)

Mr. Fisk presented information regardingCommissioner Jones had asked at the last op

Commissioner Lyons said they had ares(

Mr. Fisk said the resolution is a separate

Commissioner Montoya moved to tablseconded the motion and it passed by unapresent for the vote.

STAFF PRESENTATION AND PROPOSDISCUSSION AND POSSIBLE COMMI~

Ms. Beadles and Mr. Garcia provided the

Mr. Garcia said the proposed resolution isattempt to get a safe water system. Blanco pnwill be heard by the State Board of Finance orhas submitted a support letter to SBOF for thi~resolution will be submitted to SBOF and Star

Regarding the status of current operation.,complaints pending remain. Bottled water is b,all evidence points to the fact that the water d,Harvest Gold customers and the latest inform;washing machines, etc. So even though subjenot have a certified operator and is not in cornurgent to get safe drinking water. Mr. Ayliefe’sdays of funding so by the end of January.

Ms. Beadles said regarding the resolutionhandout. The provisions reflect the CommissiNovember and order imposing a fine later in I~that it is not in compliance and refers to action

New Mexico Public Regulation CommissionMinutes of the Case Management Open Mee

’ AN ORDER TO SHOW CAUSE AS TO WHY AV WATERNOT BE FOUND IN VIOLATION OF THE PUBLIC UTILITY~ION RULES AND WHY THE COMMISSION SHOULD NOTS AND FINES AND ANY OTHER APPROPRIATE RELIEF

Order

:his case to the Commission dealing with two questions that~n meeting.

~lution.

[em.

this matter to next week. Commissioner Lyonsnimous (4-0) voice vote. Commissioner Jones was not

-’D RESOLUTION REGARDING AV WATER CO., LLC;SION ACTION

)resentation.

to support Blanco’s request to get funding from NMFA in an)poses to build a pipeline to the City of Bloomfield system. It~ December 20t~ and the requested grant is $55,000. NMED=. NMED also issued an order to make this connection. Thewill be present there.;, there is still no evidence that AV is billing its customers. All.=ing delivered to Harvest Gold residents. More importantly -;livered has no treatment. He continues to receive calls fromltion is that the water has significant algae buildup in toilets,ct to boil advisory, the water it is not being treated. AV does~liance even with treatment of the water. So it is even morerequest will do that. The pipeline can be in place within 30

that the Commission doesn’t need great detail regarding the~n actions to date and refers to the letter sent to Bloomfield inovember. It also recites the state of water service to date -

taken by NMED.

ngDecember 14, 2016

She also added a paragraph on the next to last page referring to the SBOF meeting because shewanted the recipients to know why the Commission was issuing the resolution. The recipients are listed inthe last ordering paragraph. She would email it to the residents right away and to the service list includingthe interveners.

Commissioner Lovejoy asked for all of them to get it.

Commissioner Lovejoy moved to approve the Resolution. Commissioner Lyons seconded themotion and it passed by unanimous (4-0) voice vote. Commissioner Jones was not present for thevote.

Mr, Fisk said he would not be in attendance next week so the show cause case and whatever needs tocome up would be presented by Mr. Smith.

Ms. Beadles explained that they wanted it done here before the SBOF meeting on Tuesday.

11) 16-00304-UT IN THE MATTER OF THE APPLICATION OF EL PASO ELECTRIC COMPANYFOR APPROVAL OF AN ECONOMIC DEVELOPMENT TARIFF. EL PASOELECTRIC COMPANY, APPLICANT.(Russell Fisk) Order

Mr. Fisk presented information to the Commission regarding this matter regarding the EconomicDevelopment Tadff request. He said it is to promote Economic Development in New Mexico. The statutedoesn’t define what qualifies and EPE set up a tariff that incorporates the statute and creates criteria forthose who want to take advantage of it with special ED rates. Today’s case is just to set up the tariffprocess. They added the criteria to limit who would be considered for an ED contract.

He said he could describe the criteria or get right to the order which is a procedural order. TheCommission has leeway in the approach. It doesn’t set a hearing yet but allows the Commission to set ahearing after the report from Staff and allowing intervening.

Commissioner Montoya moved to approve the order. Chairperson Espinoza seconded themotion and it passed by unanimous (4-0) voice vote. Commissioner Jones was not present for thevote. So Ordered.

12) 16-00276-UT IN THE MATTER OF THE APPLICATION OF PUBLIC SERVICE COMPANY OFNEW MEXICO FOR REVISION OF ITS RETAIL ELECTRIC RATES PURSUANTTO ADVICE NO. 533. PUBLIC SERVICE COMPANY OF NEW MEXICO,APPLICANT.


(Michael Smith) Order

Mr. Smith presented information regarding this matter to the Commission which is a new rate case filedby PNM seeking to recover $99.2 million costs using a future test year of 2018 calendar year. The addedrevenue sought includes $30 million to implement the Commission’s final order concerning the San JuanGenerating Station, Palo Verde station #4 and abandonment of SJGS units #2 and #3 and cost of the CCNfor $1,101/KW and recovery of 50% of the depreciated value of SNCR investment that is being installed.

In addition, they indicate an additional $29 million to be recovered in other investments for pollutioncontrols at Four Comers and distribution across the State and $11 million related to the fuel clause and $9million in jurisdictional allocations. They are also seeking to institute a lost contribution to fixed costsprogram on the regulatory disincentives on decoupling proposals to be considered by the HE. Theypropose to phase in the rates with $50 million on January 1 2018 (7.2% increase) and $49.2 million onJanuary 1, 2019 (also 7.2%).

The order would be referred to Ashley Schannauer which is unusual but after discussion with BillHerrmann, he might assign a second HE to assist with interviews. He has not decided yet and that willcome later.

The only date is the hearing, set for February 10, 2017. The reason for the unspecified dates isrequiring the parties to meet and discuss mediation and settlement and report back to HE. The settlementconference was tentatively set on January 28 and filed no later than March 27, 2017.

Chairperson Espinoza asked if this forces the parties to settle.

Mr. Smith said no. The Commission can require them to go through mediation but here it is just toconfer with each other.

Commissioner Lyons wanted to include a cap and wanted PNM or the HE to get that box from Ms.Click (from the previous case) to deal with it.

Mr. Smith said he would check to see if it is still in her office.

Commissioner Lyons moved to approve the order. Commissioner Lovejoy seconded the motionand it passed by unanimous (4-0) voice vote. Commissioner Jones was not present for the vote. S._.9oOrdered.

13) 16-00315-UT IN THE MATTER OF THE APPLICATION OF PUBLIC SERVICE COMPANY OFNEW MEXICO FOR APPROVAL TO ENTER INTO A LONG-TERM HAZARDSHARING AGREEMENT WITH TRI-STATE GENERATION ANDTRANSMISSION ASSOCIATION, INC. PUBLIC SERVICE COMPANY OF NEW


MEXICO, APPLICANT.(Michael Smith) Order

Mr. Smith said this is the agreement assigned to the HE to enter into a hazard sharing agreement withTri-State under the PPA for up to 190MW at which level, rules require approval by the Commission. It was-was in the prior case which gave PNM approval for such an agreement. The application must be turnedaround within three months. The HE was assigned to help with those efforts within three months of thisorder.

Commissioner Lyons thought it was good for reliability.

Mr. Smith agreed to let HE Hurst know about it,

Commissioner Lyons moved to approve the order. Commissioner Lovejoy seconded the motionand it passed by unanimous (4-0) voice vote, Commissioner Jones was not present for the vote. SoOrdered.

9. PUBLIC COMMENT

Mr. Link Summers spoke about the KCEC case where an issue came up in filed testimony and didn’tmake through the HE.

Mr. Smith stated that while the case is over, it is still subject to appeal and the rule is for no parties tocomment until it is final. It should be submitted as a pleading for oral argument in it.

Mr. Summers understood. He didn’t know that it has any effect on the case.

Mr. Smith agreed it may be a fine line.

Mr. Summers didn’t want to cross it and he would do it the safe way.

10. EXECUTIVE CLOSED SESSION PURSUANT TO NMSA 1978, SECTION 10-15-1(H)(7)TODISCUSS PENDING LITIGATION REGARDING DEWAYNE BEAGLES v. NMPRC; D.101.CV-2014-00609

The Closed Session was considered earlier in the meeting.

11. COMMUNICATIONS WITH GENERAL COUNSEL

Mr. Smith said they are trying to get everything in front of the Commission before the end of the year.


12. COMMUNICATIONS AND POSSIBLE ACTION WITH CHIEF OF STAFF, ERNEST D. ARCHULETA,P.E.

Mr. Archuleta said they have a price agreement for the four replacement vehicles and six new vehiclesfor the Fire Marshal Office out of the Fire Fund budget at a cost of $156,587 and to re-budget money fromthe Insurance check received.

Chairperson Espinoza moved to approve the request. Commissioner Lovejoy seconded themotion and it passed by unanimous (3-0) voice vote. Commissioner Lyons and CommissionerJones were not present for the vote. ,

13. COMMUNICATIONS WITH COMMISSIONERS

Chairperson Espinoza asked about a meeting on December 28.

Commissioner Lyons returned.

Commissioner Montoya asked to wait until the next meeting to see what we have left.

Commissioner Lyons said they should give employees a break.

Commissioner Lovejoy thought staff should have a break too.

Commissioner Lyons agreed with the break.

Commissioner Jones returned at 2:20.

9) 16-00225-UT IN THE MATTER OF POTENTIAL AMENDMENTS TO STATE RURALUNIVERSAL SERVICE FUND RULE 17.11.10 NMAC, PURSUANT TO REMANDBY NEW MEXICO SUPREME COURT(Russell Fisk) Order

Mr. Fisk said this is a very simple order with 225 being a proposal by Commissioner Jones that has nourgency, and case 242 that sets a surcharge in accordance with proposed rules for 6.4 and 6.5 surcharge.The Commission should at least order that the variance continues for three months of 2017.


Commissioner Lyons said it is at 4.5% now.

Mr. Fisk agreed but revenues projected are insufficient.

Rich Zarate was on the line at 2:19.

Mr. Fisk handed out a spreadsheet showing the and also a handout on the 4.75%. He asked Mr. Zarateto interpret it. This rulemaking, as the title indicates, is pursuant to the New Mexico Supreme Court opinionstriking down the 2015 imposition of 3% cap and use the formula from 2014 minutes to a rolling formula.

The commission took comments in the consolidated docket in which the 2015 rule was adopted andthe Commission reopened in light of the Court’s opinion and received comments and then did an update onthe case with a 2016 version of the rule - 3.5% cap and access lines formula were part of the court’sopinion. The Commission also decided in the meantime to start the rulemaking to consider potentialamendments to USF rule in concert with Court opinion. So this rule making is not as broad in scope.

To give an overview, Commissioner Jones’s proposal is very much in line with advice he already gaveto come into compliance with the Court’s opinion. The main issue hasn’t changed, based on the comments.But from the court’s opinion - the Commission needs to return to access reduction support, based onaccess charges, multiplied to 014 access minutes - (before the 2015 rule).

That requirement plus LITAP support - plus administrative costs, leaves room for need basedsupport in the future. This rule would do that. This proposed rule would also go back to minutes.

In the process of this rulemaking, it was learned that, based on estimates done by Solix for next year thatgoing back would mean a 5.19% need and the request was to bring that amount down. One way wasproposed by NMECG on the imputed benchmark rate. Under the Telecom Act, the Commission would haveto incorporate something to recognize the increase in rates in 2006. That is supported by Staff and AG. Itwould bring it down from 5.91 to 5.13 and could go down to as much as 5.03% by lengthening out theperiod for true up payments. He referred to the 5.03% in the chart. The surcharge rate is always done in aseparate case but in this proposed rule, the cap, itself, would not be set. The Rural Telecom Act infers thatsetting the cap seems vulnerable to appeal. And when the court strikes down part, it strikes the whole.

On page 13 regarding proration, the proposal here would just adopt the rule. The proposed rulewas to change the segment that would require any adjustments such as true up, to be done in the sameyear.

: Discussed in the order are recommendations of NMECG regarding other provisions of prorationthat would require automatic notification by Solix when needed. It would require true up payments andexpedited provisions. He had not recommended them. He was in regular contact; and there is a reviewboard. So there is no danger of Commission not being aware of it,


Recently there has been a lot of proration because of the surcharge cap. So it should very rarelyhappen. He recommended that the earlier version be used.

On page 14, use of fund support, the 2015 rule had an exclusion re use of USF funds to rural areasonly. The definition of rural area was highly controversial. Before the 2016 rule, the only place it came intoeffect was high cost.

The 2016 rule had a definition that with the new formula would reduce Windstream’s funds by over$2 million by counting access lines that were only in rural areas. He believed that was in conflict with thecourt’s opinion. It also applied to limit where ETCs could move. That is not something at issue. There wasno striking of where it is used. Historically, the Commission has used the in rural and in high-cost areas.

Finally, broad band - the program was adopted with 2016 rule and this would alter the scheme forbroadband because it simply won’t work if removed. The access line formula would have been used toreduce the amount. The funding mechanism would simply be an added 1%.

In the comments, certain interested person believed the Commission doesn’t have authority overbroadband fund. The Commission decided it did and Mr. Fisk supported that. The law is not very clear buthas strong arguments favoring the Commission.

There were minor changes made to the procedural matters. It would make it clear that grantapplication procedures would be similar to others and Commission could reject them.

Commissioner Lovejoy pointed out that the Commissioners just got this this morning and there is alot of stuff here and it is frustrating. The kind of order you are going over. On page 13, the way she read it,the proposed would remove the restriction on use of funds. She asked what that meant

Mr. Fisk said until last year, when the Commission changed it, the Commission used funds for ruraland to high-cost areas. It is within the Commissioners’ purview to restrict.

Commissioner Lovejoy pointed out that it does say Rural USF.

Mr. Fisk said- that is the name of the act. Regarding broadband, this would not make changes. Itincludes a proposal by Smith Bagley last year to provide in areas unserved and areas underserved - bybroadband.

In this rulemaking, Smith-Bagley and NMECG came up with a different proposal that creates arequirement that applicants demonstrate the availability of broadband in the area. He didn’t know that oneapproach is superior to another.

He apologized for the lateness of the order. He also recommended the 6.9 and 6.5 surcharge ratesand if not, that the waiver continue for three months in 2017.


Commissioner Jones said it seems for some reason, that the cap needs to keep going up becauseof drops in the revenue. The access lines issue was problematic at Supreme Court. Mr. Fisk agreed.Commissioner Jones asked how they got so far off. Before, we thought we had a good number - why is itchanging so much?

Mr. Zarate said it is primarily due to drop in net intrastate revenues that each carrier reports andhistorically it is about a 1% drop over each of the next 12 months or 12% per year. Before that, it was 7-9%.It is a change in the telecom industry with highly competitive wireless carriers.

Mr. Fisk said the imputed benchmark in the statute seems to make sense. Nothing else seemed tomake sense. It is under access reduction support and the payment to Sacred Wind, which is required bythe Court. There is nowhere else to make cuts. A lot of commenters said this would be based onsubstantial evidence but he was not convinced. He believed the Commission is limited to a narrow view ofwhat the cap can do and the AG agreed. In the 2015rule overturned by the Court, staff and AG wererecommending it and needed substantial evidence to support it but no one could explain what that evidencewould be so it was very unhelpful. He had no idea what evidence could support this.

Commissioner Jones said the court says they were not comfortable allowing the Commission torestrict the use.

Mr. Fisk said the rural area issue was not before the court. He explained that there are two appealsthat have been stayed: Windstream and on-line counts and the use of funds to rural areas only

Commissioner Jones asked what the fund would be without broadband.

Mr. Fisk said it would be 5.03% with a six-month payout.

Mr. Zarate agreed. 4.5 is in place right now.

Commissioner Jones said they need 5.03 so they have to raise the cap. Let’s just suspend thebroadband fund for now and go to 5.03 which takes care of six-month payout and LITAP, Sacred Wind andthe true up.

Mr. Zarate said that without true up it would be about 4.75%. LITAP is $600,000 and Sacred windis $1.4 million with less than $200,000 for administration, auditing and legal. The total revenue projection at4.75 would be $23,700,000 contribution.

Commissioner Jones said that no matter what we do, no matter what course we take - there issomeone in this industry who will haul us down to Supreme Court. We tried to get broadband to NewMexico. Telecommunications has sunk to a new low. We have a need in this state for broadband. Only 71customers have asked for plain old telephone service. They all want broadband. The telecommunicationsindustry doesn’t care about serving the customers. The legislature wants to do nothing. If we are going to


court, we should tell them that in New Mexico, we are trying to build broadband. The heartache is thattelecommunications is unaccountable. Windstream has spent probably over $60 million.

He proposed to docket a requirement for everyone who receives USF where every dime was spent- a financial report on where 100% of that money has gone and hire an auditor to audit for the industry andfind out if any of it went where it is supposed to go. Maybe this group will get together and try to solve theproblem instead of a bunch of lawyers going to the Supreme Court. Not one inch of fiber optics has beenbuilt with that money to the Supreme Court. This will be a Commissioner who will go totally to broadband.No more O& M costs - make it a broadband deployment - and then maybe Windstream will realize - andunderstand that New Mexico people are tired of them. Commissioner Lyons was right - it is totally out ofcontrol. His intention next week is that every USF recipient will report every single dime where it went -how it was spent; how many feet of line were installed.

Commissioner Jones proposed to suspend broad band fund; make the surcharge 4.75% and raise it to5.25% to pay for true ups on 60%.

Mr. Zarate agreed that at 5.03 it is okay.

Mr. Fisk asked how long to suspend the broadband fund.

Commissioner Jones said until further notice.

Commissioner Jones said he would bring an order next week and set the cap at 5.25 as a separateorder.

10) 16-00242-UT IN THE MATTER OF THE STATE RURAL UNIVERSAL SERVICE FUNDSURCHARGE RATE FOR 2017(Russell Fisk) Order

No action was taken on these cases.

14. ADJOURNMENT

The meeting was adjourned at 3:20 p.m.

ATTEST:


Carl Boaz, ~

SAN6Y JONES, C’ P~ERSON

CYNTNA B. HALL, VI~E CHAIRPERSON


NEW ~V~EX~CO PUBLIC REGULATION

OPEN MEETING: CASE MANAGEMENT MEETINGDate: ~ece,\~¢¥ \K)Z,oi(~

COMPANY NAMEOfa~)

PHONE NUMBER

EXHIBIT 1PRC - December 14, 2016

NEW MEXICO PUBLICREGULATION COMMISSION

OPEN ~ETING_: CASE MANAGEMENT MEETING

N~E COMPANY NAME, (~y)

Thankyou for attending this meeting.

EXHIBIT 1PRC- December 14, 2016

NEW MEXICO PUBU� .REGULAT!0N COMMISSION

OPEN MEETING: CASE MANAGEMENT MEETINGWednesday, December 14, 2016

9:30 a.m.PERA Building, 4th Floor Hearing Room

1:120 Paseo de Peralta, Santa Fe, NM 8750:1

II.

III.

IV.

Ve

AGENDA

PLEDGE OF ALLEGIANCE/STATE PLEDGE

INTRODUCTION OF SPECIAL GUESTS

CONSIDERATION AND APPROVAL OF THE AGENDA

CONSIDERATION AND APPROVAL OF MINUTES

¯ Minutes of the Case Management Open Meeting for November 9, 2016

CONSENT ACTION

A. Transportation Matters:

2)

16-00178.TR.MDavid Black

IN THE MATTER oFMAGDALENA VOLUNTEERFIRE DEPARTMENT’S REQUEST FOR A VARIANCE

TRANSPORTATION RULEFROM NMPRC18.3.14.11(A1(1)

_ORDER

IN THE MATTER OF THE APPUCATION 0i~ ....MYRIDE, LLC, FOR A CERTIFICATE TO PROVIDE

MEDICAL TRANSPORTNON-EMERGENCYSERVICE

16-00287-TR-MDavid Black

ORDER

Open Meeting:. Case Management Meeting AgendaWednesday, December 14, 2016Pagelof$ EXHIBIT 2

PRC - December 14, 2016

Vl.

B. Utility Matters:

NONE

PUBUC HEARING

Case No. 16-00012-TR-ENAvelino GutierrezFidel Archuleta

IN THE MATTER OF THE REVOCATION OF OPERATING AUTHORITIES FOR FAILURE TO COMPLYWITH FINANCIAL RESPONSIBILITY REQUIREMENTS

NEW MEXICO PUBUC REGULATION COMMISSION, TRANSPORTATION DIVISION,

PETITIONER

Ve

AC SANTIZO TRUCKING, #56531; A R SERVICES LLC, #56613; BARRERA & COMPANY LLC,#56176; BOBS AUTO, #7156; CHAVES TRANSPORTATION, #55036; CHECKER CAB CO., #1005;D2L TRUCKING, #54891; DOMINGUEZ TRUCKS CO., #56858; IRON PRIDE TRUCKING, #56911;JARRETTS SEPTIC TANK PUMPING, #54463; LARA’S TRANSPORTATION, #56405; LAWRENCEBACHICHA TRUCKING INC., #53248; LOS APARICIO TRUCKING, #56606; RABBIT BLUESTRANSPORT, LLC, #56865; SKY OILFIELD SERVICES LLC, #55088; THE ROCK TRUCKING LLC,#55134; TRI-CITY TRANSFER AND STORAGE, #1233,

RESPONDENTS.

VII. REGULAR ACTION AND DISCUSSION

Transportation Matters:

IN THE MATrER OF THE REVOCATION OFOPERATING AUTHORmES FOR FAILURE TOCOMPLY WITH FINANCIAL RESPONSIBILITYREQUIREMENTS

NEW MEXICO PUBUC REGULATIONCOMMISSION, TRANSPORTATION DIVISION,

PETITIONER

16-O0012-TR-ENJudith Amer

Open Meeting: Case Management Meeting AgendaWednesday, December ~4, 2oz6Page2of8 EXHIBIT 2 ~


4) 16-O0284-TR-MJudith Amer

S) 16-00321-FM’ IIDavid BlackAvelino GutlerrezJohn Standefer

6) 16-O0290-TR-MDavid Black

B. Utility Matters:

AC SANTIZO TRUCKING, #56531; A R SERVICESLLC, #56613; BARRERA & COMPANY LLC,#56176; BOBS AUTO, #7156; CHAVESTRANSPORTATION, #55036; CHECKER CAB CO.,#1005; D2L TRUCKING, #54891; DOMINGUEZTRUCKS CO., #56858; IRON PRIDE TRUCKING,#56911; JARRETTS SEPTIC TANK PUMPING,#54463; LARA’S TRANSPORTATION, #56405;LAWRENCE BACHICHA TRUCKING INC., #53:148;LOS APARICIO TRUCKING, #56606; RABBITBLUES TRANSPORT, LLC, #56865; SKY OILFIELOSERVICES LLC, #55088; THE ROCK TRUCKING LLC,#55134; TRI-CITY TRANSFER AND STORAGE,#1233,

RESPONDENTS.

IN THE MATTER OF THE APPUCATION OF MED-TRANS CORPORATION D/B/A AEROCARE FOR ACERTIFICATE TO PROVIDE AMBULANCE SERVICE

ORDER

IN THE MATTER OF AMENDING CERTAIN RULESPERTAINING TO THE STATE FIRE MARSHALINCLUDING REPEALING AND REPLACING THE2003 INTERNATIONAL FIRE CODE WITH THE2015 INTERNATIONAL FIRE CODE

.ORDER

IN THE MATTER OF THE APPUCATION OFGAWRYK & CO. LLC, D/B/A CUSTOMERWESTERN TRANSPORT, FOR A CERTIFICATE TOPROVIDE UMOUSINE SERVICE,

Open Meeting: Case Management Meeting AgendaWednesday, December 14, 2016Page$of$~ EXHIBIT 2

PRC- December 14, 2016

7)

8)

IN THE MATrER OF SOUTHWESTERN PUBLICSERVICE COMPANY’S APPLICATIONREQUESTING: (1) ACKNOWLEDGEMENT OF ITSFLUNG OF THE 2015 ANNUAL RENEWABLEENERGY PORTFOUO REPORT; (2) APPROVAL OFITS ANNUAL RENEWABLE ENERGY PORTFOUOPROCUREMENT PLAN FOR PLAN YEAR 2017; (3)APPROVAL OF THE PROPOSED RATE FOR ITS2017 RENEWABLE PORTFOUO STANDARDRIDER; (4) APPROVAL OF ITS PROPOSAL TOCALCULATE AVOIDED ENERGY RELATED TO THESUNEDISON, LLC PURCHASED POWERAGREEMENTS; AND(5) OTHER ASPCOATEDRELIEF,

16-00183-UTJudith AmerAnthony Medeiros

SOUTHWESTERN PUBLIC SERVICE COMPANY,

ORDER

APPUCANT.

PETITION FOR ’DECLARATORYCONCERNING PURPA OBUGATIONS

16-00311-UTJudith Amer

Enchanted Winds LLC,Petitioner,

Central New Mexico ElectricCooperative, Int.,Respondent.

ORDER

164~)2ZS-UTRussell Fisk

IN THE MATTER OF POTENTIAL AMENDMENTSTO STATE RURAL UNNERSAL SERVICE FUNDRULE 17.11.10 NMAC, PURSUANT TO REMANDBY NEW MEXICO SUPREME COURT

ORDER

Open Meeting: Case Management Meetin~ AgendaWednesday, December 14. 2016Page4 of 8 EXHIBIT 2


1G-OO242-UTRussell F|sk

Russell Fisk

12) 16-00276-UTMichael Smith

13) 16-O0315-UTMichael Smith

IN THE MATTER OF THE STATE RURALUNIVERSAL SERVICE FUND SURCHARGE RATEFOR 2017

ORDER

.... iN THE MATTER OF THE’ APPUcATION" OF’ELPASO ELECTRIC COMPANY FOR APPROVAL OFAN ECONOMIC DEVELOPMENT TARIFF

EL PASO ELECTRIC COMPANY,Applicant.

ORDER

IN THE MATrER OF THE APPUCATION OF PUBUCSERVICE COMPANY OF NEW MEXICO FORREVISION OF ITS RETAIL ELECTRIC RATESPURSUANT TO ADVICE NO. 533

PUBUC SERVICE COMPANY OF NEW MEXICO,

ORDER

Applicant.

IN THE MATrER OF THE APPUCATION OF’PUBLICSERVICE COMPANY OF NEW MEXICO FORAPPROVAL TO ENTER INTO A LONG-TERMHAZARD SHARING AGREEMENT WITH TRI-STATEGENERATION AND TRANSMISSIONASSOQATION, INC

PUBUC SERVICE COMPANY OF NEW MEXICO,

ORDER

Applicant.

Open Meeting: Case Management Meeting AgendaWednesday, December 14, 2016Page $ of 8 EXHE31T 2


14) 16-00175-UTRussell Fisk

IN THE MATTER OF AN ORDER TO SHOW CAUSEAS TO WHY AV WATER CO., LLC, SHOULD NOTBE FOUND IN VIOLATION OF THE PUBUCUTIUTY ACT AND COMMISSION RULES ANDWHY THE COMMISSION SHOULD NOT IMPOSESANCTIONS AND FINES AND ANY OTHERAPPROPRIATE REUEF

VIII. STAFF PRESENTATION AND PROPOSED RESOLUTION REGARDING AV WATER CO., LLC;DISCUSSION AND POSSIBLE COMMISSION ACTION

IX. PUBUC COMMENT

X. EXECUTIVE CLOSED SESSION

¯ PURSUANT TO NNISA 19780 SECTION 10-15-1(H)(7) TO DISCUSS PENDINGLITIGATION REGARDING DEWA YNE BEAGLES v. NMPRC; D-101-CV-2014-00609

Xl. COMMUNICATIONS WITH GENERAL COUNSEL

Xli. COMMUNICATIONS AND POSSIBLE ACTION WITH CHIEF OF STAFF, ERNEST D.ARCHULETA, P.E.

XlII. COMMUNICATIONS WITH COMMISSIONERS

XlV. ADJOURNMENT

To obtain a copy of this agenda please log in the Commission’s website at

The Commission will rake reasonable efforts to post the agenda on the Commission’swebsite at least 72 hours before the open meeting, but the inability to do so within the 72hours prior, will not require the Commission to delay the meeting or to refrain from takingaction on any agenda item on which it otherwise could act.

At any time during the Open Meeting the Commission may close the meeting to the public todiscuss matters not subject to the New Mexico Open Meetings Act. The Commission mayrevise the order of the agenda items considered at this open meeting.

Open Meeting: Case Ma~ent Meeting A~endaWednesday. December 14, 2016Page6of8 EXHIBIT 2

PRC o December 14, 2016

Notice is hereby given that the Commission may request that any party answer clarifyingquestions or provide oral argument with respect to any matter on the agenda, ff theCommission makes such a request, any party present at the meeting, either in person or bytelephone, shall have an equal opportunity to respond to such questions or argument. In theevent a party whose case is on the agenda chooses not to appear, the absence of that partyshall not cause such discussion or argument to become ex-parte communications.

PERSONS WITH DISABILITIES

ANY PERSON WITH A DISABILITY REQUIRING SPEQAL ASSISTANCE IN ORDER TO PARTICIPATEIN THIS PROCEEDING SHOULD CONTACT THE OFFICE OF DIRECTOR OF ADMINISTRATIVESERVICES OF THE COMMISSION AT (505) 827-4042 AS SOON AS POSSIBLE PRIOR TO THECOMMENCEMENT OF THE OPEN MEETING.

PUBU¢ COMMEN, T

All members of the public wishing to provide public comment must sign a sign-up sheetprior to the start of the meeting and Identify their name and the name of the organization theyrepresent (if any), and the topic or issue on which they desire to comment. The portion of theagenda allocated for public comment at any one open meeting shall be limited to a maximumof 30 minutes for all persons wishing to provide comment. The order of speakers will be basedon the order in which speakers sign up, but public officials may be taken out of order. If aspeaker is not present at the time he or she is called to provide comment, that speaker shallforfeit their opportunity to speak. Public comment by an individual ix entity shall be limited tono more than three (3) minutes unless the Commission acts to extend the period. If thenumber of individuals on the sign-up sheet desiring to provide comment would exceed theallotted 30-minute period, the Chairman may limit individual remarks to a shorter time period.Individuals represented by or representing a common organization or association may be askedto select one individual to act as spokesperson to speak for the group. Individuals who sign upto comment, but either fail to do so or choose to speak for less than their allotted time, maynot cede or yield their time to another speaker. Written comments of individuals who cannotbe physically present may not be read aloud at the meeting but may be submitted to theCommission.

The subject matter of public comments shall be relevant to matters within theCommission’s jurisdiction. Public comment will not be permitted on matters that should beaddressed appropriately as the subject of an informal or formal complaint before theCommission or on pending rulemaking proceedings before the Commission once theopportunity for public comment in those proceedings has closed. Public comment by parties toa proceeding or adjudication pending before the Commission will not be permitted where thecomment concerns matters at issue in such proceeding. The Chairman shall retain the right tostop any speaker who raises an issue that is not under the Commission’s jurisdiction or is

Open Meeting: Case Management Meeting AgendaWednesday, December 14, 2016Page 7 of 8 EXHIBIT 2


subject to the restrictions above. Public comment will be received without Commissioncomment or response. However, individual Commissioners may at their option seekclarification or additional information from speakers through the Chairman. No speakers willbe accommodated after the public comment portion of the agenda has closed. The Chairmanretains the right to exercise discretion in the implementation of this policy and may overridethe above rules in case of emergency or other unforeseen circumstances.

Speakers providing comment shall at all times conduct themselves in accordance withproper decorum. Profane or vulgar language or gestures will not be tolerated. Audiencemembers shall not disrupt an open meeting by speaking without being recognized by theCommission and shall not incite others to do so. The Commission retains the right to removedisruptive attendees and individuals who fail to conduct themselves in accordance with theseprovisions from the Commission meeting.

Open Meeting: Case Management Meeting AgendaWednesday, December 14, 2016Page 8 o~8 EXHIBIT 2

PRC- Oecember 14, 2016

NEW MEXICO PUBLIC REGULA~ON COMMISSION

OPEN MEETING: CASE MANAGEMEI~ MEETINGDate: ~C,~n~"-\~ )~0(~o ....

NAME PHONE TOPIC

Thank you for a~tendlng this meeting.

EXHIBIT 3PRC - December 14, 2016

a quorum was present as followsnmprc.state.nm.us/docs/older docs/12-14-16 minutes.pdf ·...

Documents