                                                                          FILED
                                                                      Oct 15 2019, 7:33 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Randolph L. Seger                                          INDIANA UTILITY
Brian W. Welch                                             REGULATORY COMMISSION
Michael T. Griffiths                                       Curtis T. Hill, Jr.
Bingham Greenebaum Doll LLP                                Attorney General of Indiana
Indianapolis, Indiana                                      Aaron T. Craft
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana

                                                           Beth E. Heline
                                                           General Counsel
                                                           Jeremy R. Comeau
                                                           Assistant General Counsel
                                                           Indiana Utility Regulatory
                                                           Commission
                                                           Indianapolis, Indiana

                                                           ATTORNEYS FOR APPELLEE
                                                           INDIANA OFFICE OF UTILITY
                                                           CONSUMER COUNSELOR
                                                           William I. Fine
                                                           Daniel M. Le Vay
                                                           Scott C. Franson
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA



Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                           Page 1 of 22
Hamilton Southeastern Utilities,                           October 15, 2019
Inc.,                                                      Court of Appeals Case No.
Appellant,                                                 19A-EX-632
                                                           Appeal from the Indiana Utility
        v.                                                 Regulatory Commission
                                                           The Honorable James F. Huston,
Indiana Utility Regulatory                                 Chairman
Commission, et al.,                                        The Honorable David E. Ziegner,
Appellees.                                                 Sarah E. Freeman, Stefanie
                                                           Krevda, and David L. Ober,
                                                           Commissioners
                                                           The Honorable Carol Sparks Drake,
                                                           Senior Administrative Law Judge
                                                           IURC Cause No. 44683



Bailey, Judge.




Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                    Page 2 of 22
                                            Case Summary
[1]   Following a previous order of this Court remanding this case to the Indiana

      Utility Regulatory Commission (“Commission”), Hamilton Southeastern

      Utilities, Inc. (“HSE”) appeals the February 20, 2019, Commission’s order on

      remand in which the Commission disallowed both HSE’s requested 3%

      increase in the hourly billing rate for its affiliate, Sanitary Management &

      Engineering Company, Inc. (“SAMCO”), and a 10% management fee for

      SAMCO.


[2]   We affirm.



                                                     Issues
[3]   HSE raises five issues which we consolidate and restate as follows:


          1. Whether the Commission’s order on remand satisfies the Court of

              Appeals instructions to support its order with substantial evidence by

              either making additional findings supporting the Commission’s decision

              to disallow HSE’s requested 3% rate increase for SAMCO billing charges

              and 10% SAMCO management fee (collectively, “SAMCO-related

              expenses”) or recalculating HSE’s rate.


          2. Whether the Commission exceeded its statutory authority when it

              ordered HSE to provide evidence of its affiliate’s costs.




      Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019      Page 3 of 22
            3. Whether the Commission improperly promulgated a rule in its order on

                remand.



                               Facts and Procedural History
[4]   HSE is a for-profit public utility that provides sewage collection and treatment

      services to customers in Hamilton County, Indiana. HSE relies upon its

      affiliate, SAMCO, to carry out all operation, maintenance, and engineering

      functions of HSE’s sewage operations. SAMCO charges HSE pursuant to a

      utility services agreement (“affiliate contract”). HSE’s officers and directors all

      own shares of SAMCO.


[5]   As a public utility, HSE is subject to regulation by the Commission. In 2009,

      HSE sought approval from the Commission for a base rate increase. The

      Indiana Office of Utility Consumer Counselor (“OUCC”), a state agency

      tasked with representing the interests of consumers in utility matters, 1 argued

      against HSE’s proposed rate increase based in part on the National Association

      of Regulatory Utility Commissioners (“NARUC”) guidelines. In its 2010 order

      (“2010 Order”), the Commission approved an increase to HSE’s revenues of

      3.22% and a rate of return of 9.8%. The 2010 Order—which approved

      SAMCO-related expenses—was based on HSE’s market study evidence

      indicating that SAMCO charged rates and markups that were at or below the




      1
          See Ind. Code § 8-1-1.1-4.1 (powers and duties of OUCC).


      Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019       Page 4 of 22
      regional market, and it did not rely upon the NARUC guidelines. The

      Commission found that SAMCO’s total contract charge to HSE for the test

      year 2009 was $3,280,990.


[6]   Due largely to aging equipment, HSE began to experience operational issues

      that resulted in spills and overflow. In 2013, a sewage overflow led the Indiana

      Department of Environmental Management (“IDEM”) to issue a Notice of

      Violation to HSE. HSE and IDEM subsequently entered into an Agreed Order

      under which HSE was required to develop and implement additional

      maintenance and operations programs. The requirements of the Agreed Order

      significantly increased HSE’s maintenance and operating costs and will

      continue to do so for the foreseeable future. SAMCO is carrying out the actions

      required in the Agreed Order, and SAMCO’s resulting total contract charge to

      HSE in test year 2014 was over $5 million.2


[7]   Because of the added expenses, HSE achieved an average rate of return of 1.9%

      between 2009 and 2015, even though the Commission had approved a 9.8%

      rate of return in the 2009-10 rate case. Therefore, on September 24, 2015, HSE

      filed a petition seeking authority from the Commission to increase its rates and

      charges. Specifically, HSE sought an across-the-board rate increase of 8.42%

      which included, in relevant part, a 3% increase in SAMCO’s billing rate and a




      2
        The $5,339,669 contract charge for test year 2014 did not include the 3% increase to SAMCO’s hourly
      rates that SAMCO and HSE negotiated in 2015 and for which HSE sought Commission approval in this
      case.

      Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                           Page 5 of 22
      10% management fee.3 OUCC advocated for a 14.01% rate reduction for HSE.

      HSE ultimately reduced its rate increase request to 6.27%.


[8]   On February 24, 2016, the Commission conducted an evidentiary hearing on

      HSE’s petition and, on November 9, 2016, issued an order (“2016 Order”)

      authorizing a rate increase of 1.17%. The 2016 Order noted that the NARUC

      guidelines call for affiliate pricing to be at market price or the fully allocated

      cost,4 whichever is lower. Because HSE failed to demonstrate SAMCO’s fully

      allocated costs, the 2016 Order disallowed a rate increase for the requested

      SAMCO-related expenses. The Commission reached that decision despite

      finding that “HSE presented evidence that shows SAMCO’s rates are at or

      below the rates charged by other similar firms,” and “the 10% management fee

      may be customary in the industry.” App. Vol. II at 27. The Commission also

      ordered HSE to provide evidence regarding SAMCO’s fully allocated costs in

      HSE’s next rate case. Id.


[9]   HSE appealed to this Court, and we held, in relevant part, that the Commission

      acted arbitrarily in excluding the SAMCO-related expenses from HSE’s rate

      calculation because it “failed to explain its decision to now adhere to the

      standard advocated by NARUC that the test for reasonableness is the lower of

      fully allocated costs or prevailing market prices.” Hamilton Southeastern Utils.,




      3
        The management fee is 10%of the value of the material costs, and it does not include SAMCO’s hourly
      rates. That is, it is 10% “over and above reimbursement of SAMCO’s costs.” App. Vol. V at 10.
      4
          SAMCO’s fully allocated cost would be its “cost of providing the service[s]” to HSE. App. Vol. V at 8.


      Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                               Page 6 of 22
       Inc. v. Ind. Util. Regulatory Comm’n, 85 N.E.3d 612, 626 (Ind. Ct. App. 2017)

       (“HSE I”). We also dismissed the Commission as a party to the case. Id. HSE

       sought transfer, which our Supreme Court granted. On transfer, the Supreme

       Court held that the Commission was a proper party, reversed the Court of

       Appeals holding on the SAMCO-related expenses issue, and remanded the case

       to this Court “with instructions to permit the Commission an opportunity to

       brief the [SAMCO-related expenses] issue.” Hamilton Southeastern Utils., Inc. v.

       Ind. Util. Regulatory Comm’n, 101 N.E.3d 229, 234 (Ind. 2018) (“HSE II”).


[10]   On remand, following additional briefing by the Commission, this Court noted

       that, although HSE submitted “the same type of evidence” the Commission had

       found acceptable in the 2010 Order, this time the Commission applied the

       NARUC guidelines and found HSE’s evidence insufficient “because it had not

       supplied information regarding SAMCO’s fully allocated costs.” Hamilton

       Southeastern Utils., Inc. v. Ind. Util. Regulatory Comm’n, 115 N.E.3d 512, 515 (Ind.

       Ct. App. 2010) (“HSE III”). We noted that


               [t]he Commission implicitly found that the NARUC guidelines
               were reasonable and applicable to HSE in this rate case, but it did
               not enter any specific findings regarding why it had reached this
               conclusion, and, thus, the Commission’s order on this issue was
               not supported by substantial evidence, was not reasonable, and
               was arbitrary. … In addition, the Commission’s findings shed no
               light on why it chose to apply the portion of the NARUC
               guidelines pertaining to fully allocated costs when the NARUC
               guidelines themselves provide that “[u]nder appropriate
               circumstances, prices could be based on incremental cost, or
               other pricing mechanisms as determined by the regulator.”


       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019       Page 7 of 22
       Id. (citations omitted). Thus, we “again reverse[d] the Commission on the

       SAMCO expenses issue and remand[ed] for it to make additional findings to

       support its decision or for a recalculation of HSE’s rate.” Id.


[11]   On remand, the Commission articulated its understanding that, in HSE III, we

       had directed it to “more fully expound upon the findings supporting” its

       conclusion that the SAMCO-related expenses were disallowed and “the

       interplay between NARUC guidelines and [its] findings and conclusions” on

       the SAMCO-related expenses issue. Commission Order on Remand (“2019

       Order”), App. Vol. V at 4, 5. Therefore, based on the same evidence submitted

       at the February 24, 2016, hearing, the Commission entered numerous

       additional findings regarding the SAMCO-related expenses and again

       concluded that HSE failed to demonstrate that those expenses were

       “reasonable, merited, or in the public interest.” Id. at 8. The Commission also

       again ordered HSE to “offer evidence in its next rate case demonstrating the

       fully allocated cost of billings to HSE by an affiliate that HSE seeks to recover

       in its rates.” Id. at 10.


[12]   HSE now appeals the 2019 Order. We will provide additional facts as

       necessary.




       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019       Page 8 of 22
                                   Discussion and Decision
                                          Standard of Review
[13]   Our legislature created the Commission “primarily as a factfinding body with

       the technical expertise to administer the regulatory scheme.” Citizens Action

       Coal. of Ind., Inc. v. S. Ind. Gas & Elec. Co., 120 N.E.3d 198, 207 (Ind. Ct. App.

       2019) (citing N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012, 1015

       (Ind. 2009)). The Commission is assigned the responsibility of ensuring that

       public utilities provide “constant, reliable, and efficient service to the citizens of

       Indiana,” including reasonable rates. Id.; Ind. Code § 8-1-2-4. “Because the

       complicated process of ratemaking is a legislative rather than judicial function,

       it is more properly left to the experienced and expert opinion present in the

       Commission.” Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 76

       N.E.3d 144, 151 (Ind. Ct. App. 2017) (internal quotations omitted).


[14]   We review the Commission’s orders using a multi-tiered standard. S. Ind. Gas

       & Elec. Co., 120 N.E.3d at 207 (citing U.S. Steel Corp., 907 N.E.2d at 1015).

       First, we determine whether there is substantial evidence in the record to

       support the Commission’s findings of basic fact. Id. In doing so, we neither

       reweigh the evidence nor assess witness credibility, and we consider only the

       evidence favorable to the Commission’s findings. Id. However, “the

       Commission’s order is not binding if it lacks substantial evidence supporting the

       findings of the Commission or is unreasonable or arbitrary.” Id.




       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019          Page 9 of 22
[15]   At the second tier, “the [Commission’s] order must contain specific findings on

       all the factual determinations material to its ultimate conclusions.” Id. (citation

       and internal quotations omitted). If the subject at issue is within the

       Commission’s area of expertise, the Commission “‘enjoys wide discretion and

       its findings and decision will not be lightly overridden simply because we might

       reach a different decision on the same evidence.’” Id. (quoting N. Ind. Pub. Serv.

       Co., 76 N.E.3d at 151; see also L.S. Ayres & Co. v. Indianapolis Power & Light Co.,

       169 Ind. App. 652, 351 N.E.2d 814, 819-20 (1976) (“While the utility may incur

       any amount of operating expense it chooses, the Commission is invested with

       broad discretion to disallow for rate-making purposes any excessive or

       imprudent expenditures.”)


[16]   In addition, “an agency action is always subject to review as contrary to law,

       but this constitutionally preserved review is limited to whether the Commission

       stayed within its jurisdiction and conformed to the statutory standards and legal

       principles involved in producing its decision, ruling, or order.” U.S. Steel Corp.,

       907 N.E.2d at 1016. “The entity challenging the Commission’s decision has

       the burden of proof to show that the decision is contrary to law.” City of Fort

       Wayne, Ind. v. Util. Ctr., 840 N.E.2d 836, 839 (Ind. Ct. App. 2006).


                  Commission Compliance with HSE III Order
[17]   In the 2010 Order, the Commission did not rely on NARUC guidelines that

       require evidence of both fully allocated costs and prevailing market prices;

       rather, the 2010 Order approved HSE’s rate increase based solely on evidence


       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019        Page 10 of 22
       of prevailing market rates. However, in the 2016 Order, the Commission

       changed its approach and applied the NARUC guidelines to deny HSE’s

       requested rate increase and management fees for failure to provide evidence of

       both SAMCO’s fully allocated costs and prevailing market rates.


[18]   As we noted in HSE I, an agency “‘may change its prior policy and is not

       forever bound by precedent.’” 85 N.E.3d at 622 (quoting Ind. Bell Tel. Co. v. Ind.

       Util. Regulatory Comm’n, 810 N.E.2d 1179, 1186 (Ind. Ct. App. 2004), trans.

       denied)). However, a necessary departure from precedent and flawed policy

       must be accompanied by an explanation. Ind. Bell, 810 N.E.2d at 1186. The

       Commission has a


               well established right to modify or even overrule an established
               precedent or approach. Lodged deep within the bureaucratic
               heart of administrative procedure, however, is the equally
               essential proposition that, when an agency decides to reverse its
               course, it must provide an opinion or analysis indicating that the
               standard is being changed and not ignored, and assuring that it is
               faithful and not indifferent to the rule of law.


       Id. (cleaned up)5 (quoting Cmty. Care Ctrs. v. Dep’t of Pub. Welfare, 523 N.E.2d

       448, 450-51 (Ind. Ct. App. 1988)); see also Off. of Util. Consumer Couns. v. Bd. of

       Dir. for Util. of Dep’t of Pub. Util., 678 N.E.2d 1127, 1129 (Ind. Ct. App. 1997)

       (noting that, because “administrative agencies must follow some sort of




       5
         See Cardosi v. State, Case No. 18S-LW-181, 2019 WL 3713946, at *7 n.5 (Ind. Aug. 7, 2019) (explaining use
       of parenthetical “cleaned up”).

       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                           Page 11 of 22
       ascertainable standard[,]” an agency must “either follow the precedents it has

       set, or change its rules and policies with appropriate explanation”).6


[19]   In HSE III, we found that the Commission’s 2016 Order deviated from the

       standard it had articulated in the 2010 Order by applying the NARUC

       guidelines to HSE’s current rate case. 115 N.E.3d at 515. We held that, while

       the Commission is not prohibited from applying part or all of the NARUC

       guidelines, it must enter “specific findings regarding why” it reached the

       decision to do so. Id. Because the Commission had failed to provide such an

       explanation, we held that its order on the SAMCO-related fees was “not

       supported by substantial evidence, was not reasonable, and was arbitrary.” Id.

       We reversed the Commission’s decision on the SAMCO-related expenses and

       remanded for the Commission “to make additional findings to support its

       decision” regarding those expenses “or for a recalculation of HSE’s rate.” Id.

       (emphasis added).7




       6
          Thus, HSE is incorrect when it contends that the Commission failed to provide an ascertainable standard
       because it did not give HSE “prior notice” or warning that it would apply the NARUC guidelines to the rate
       case at issue. HSE’s Br. at 39. Rather, when the Commission decides it is inappropriate to follow its
       precedents, it must only provide a contemporaneous explanation for why this is so. See Bd. of Dir. for Util.,
       678 N.E.2d at 1129; see also S. Ind. Gas & Elec. Co., 120 N.E.3d at 210 (“An agency may change its course and
       is not forever bound by prior policy or precedent as long as it explains its reasons for doing so.”). Moreover,
       a decision maker obviously cannot give “prior notice” or warning of what its decision will be in a particular
       case before the case has even been presented to it. Thus, it is unclear what “prior notice” or warning HSE
       believes the Commission must give, especially when HSE objects to the “notice” the Commission provided it
       in this case requiring that HSE’s next rate case must include evidence of its affiliate’s fully allocated costs.
       HSE’s Br. at 25, 49.
       7
         Thus, HSE III did not prohibit the Commission from making additional factual findings, as HSE asserts;
       just the opposite. 115 N.E.3d at 515. Moreover, HSE III did not hold, as HSE contends and/or implies, that
       the commission on remand (1) must conduct an additional evidentiary hearing or otherwise take additional

       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                               Page 12 of 22
[20]   Based on testimony presented by OUCC and HSE’s own admissions, the

       Commission held that the NARUC guidelines apply to the SAMCO-related

       expenses,8 and that HSE failed to provide evidence that those expenses were

       justified under the guidelines. The Commission explained that the NARUC

       guidelines now apply to HSE’s requested 3% rate increase because

       circumstances surrounding the rates charged by SAMCO had so significantly

       changed since the 2010 rate case that those rates could no longer be justified

       with only evidence of “on-line market rates for consulting firms, which include

       a profit.” App. Vol. V at 9. The Commission noted that the market evidence

       supplied by HSE “was simply a compilation of rates and contract information

       HSE found on-line for various engineering firms or obtained by personal

       contact with the organizations.” Id. Such evidence did not take into account

       the dramatic increase in annual services SAMCO now provides for HSE. As

       HSE admitted through the testimony of its President, Kendall Cochran

       (“Cochran”), SAMCO would charge its clients different rates depending upon

       the size of a client. Yet, HSE’s market evidence contained no information

       about what kind of rates the sample engineering companies would charge for

       clients as large as HSE.




       evidence (Appellant’s Br. at 21), (2) cannot use the NARUC guidelines (Id. at 29), or (3) must explain “how
       HSE had fair warning or notice” that the Commission would apply the NARUC guidelines (Id. at 42).
       8
         The Commission incorrectly contends that it “did not apply the NARUC Guidelines” in its 2019 Order.
       Comm’n Br. at 29, 33. To the contrary, the 2019 Order clearly disallows the requested increases in SAMCO-
       related expenses because they were not appropriate “under the evidence or the NARUC guidelines.” Id. at 9,
       11. In so holding, the Commission points to both the insufficiency of HSE’s market-rate evidence and its
       complete lack of fully allocated cost evidence. Id.

       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                            Page 13 of 22
[21]   In addition, Cochran admitted that, since the large increase in HSE’s operations

       services, a majority of SAMCO’s employees now “utilize 100 percent of their

       time on HSE work.” Id. at 6. However, the evidence demonstrated that “the

       billing rates for consulting firms typically include a major allowance for

       unbilled hours, marketing, idle time between projects, and overruns that cannot

       be billed.” Id. at 9. The evidence regarding SAMCO, on the other hand,

       showed that SAMCO employees working for HSE had no such idle time or

       unbilled hours. Thus, the billing rates of the sample engineering companies in

       HSE’s market evidence would be higher than the billing rate that would be

       applicable to SAMCO, which did not include any unbilled hours.9


[22]   The Commission found essentially that HSE’s market evidence did not

       compare apples to apples; it found that the rates on the internet do not “equate

       to the rates any of the sample engineering firms identified in the ‘market study’

       will charge a client like HSE if offered over $5 million in services annually,

       particularly if a majority of their staff can expend 100% of their time providing

       these services.” Id. The Commission concluded that “[t]he amount HSE pays

       SAMCO annually … has become too large to permit on-line market rates for

       consulting firms, which include a profit, to justify rates to HSE that are other




       9
         The Commission also pointed to evidence that HSE could perform the services in-house at a lower cost
       than that charged by SAMCO. HSE provided no evidence to the contrary; in fact, it admitted that it never
       did a cost/benefit analysis to determine whether it could provide the services at a lower cost or got bids from
       other entities that manage projects. Id. at 6-7. Regardless, the Commission noted that “it is HSE’s decision
       whether to provide more services in-house” and held only that HSE must provide evidence establishing that
       the charges of any affiliate it chooses to use are the lower of prevailing market prices or fully allocated cost.
       Id. at 9.

       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                                 Page 14 of 22
       than SAMCO’S fully allocated cost.” 10 Id. Since HSE’s market evidence was

       insufficient and it had supplied no evidence regarding SAMCO’s fully allocated

       cost, the Commission held HSE had failed to show that its requested rates were

       reasonable and in the public interest.


[23]   Similarly, the Commission explained that changed circumstances also made

       HSE’s market evidence insufficient to justify HSE’s requested 10% increase for

       SAMCO’s management fee. Again, HSE’s market evidence indicating that

       some engineering firms charge a management fee did not take into

       consideration whether those companies would charge such a fee to a client as

       large as HSE and/or to a client that would require most affiliate employees to

       be fully dedicated to the client’s work. HSE admitted through Cochran’s

       testimony that “a utility with enough customers and enough opportunities to

       bill” might be able to negotiate not having a management fee, and there was

       evidence that some engineering companies did not charge such a fee. Id. at 10.

       Thus, the Commission concluded the evidence showed the 10% management

       fee is “not market driven or required, that it is more probable that an

       engineering firm with an opportunity to provide over $5 million annually in

       services will negotiate this fee.” Id. at 11. And, since HSE also “provided no




       10
          That finding is not—as HSE claims—inconsistent with the Commission’s finding in the 2016 Order that
       “HSE presented evidence that shows SAMCO’s rates are at or below the rates charged by other similar
       firms.” App. Vol. II at 27. Rather, the 2019 Order further explains that the other firms’ rates which seem to
       be comparable in HSE’s market evidence are actually not comparable because they do not account for the
       size of the client served or the lack of unbilled hours. In any case, the Commission’s earlier decision
       regarding the SAMCO-related expenses was reversed by this court in HSE III. 115 N.E.3d at 515.

       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                              Page 15 of 22
       evidence demonstrating SAMCO’s [management fee] is cost based,” the

       Commission concluded that “recovery of this fee, given the record, would

       afford an unwarranted premium to HSE’s affiliate.” Id. Thus, the Commission

       held HSE failed to provide evidence showing that the fee was justified under the

       NARUC guidelines. Id.


[24]   In reaching its ultimate conclusions, the Commission noted the NARUC

       guidelines state: “The prevailing premise of these Guidelines is that allocation

       methods should not result in subsidization of non-regulated services or products

       by regulated entities unless authorized by the jurisdiction regulatory authority.”

       Id. at 8. The guidelines further state that affiliate transaction pricing is based, in

       part, on the assumption that “affiliate transactions raise the concern of self-

       dealing where market forces do not necessarily drive prices.” Id. Thus, the

       Commission noted that the standard articulated by the guidelines—i.e., that

       affiliate prices for services “should be at the lower of fully allocated cost or

       prevailing market prices”—is designed for a situation like the one presented in

       this case, where the evidence indicates an affiliate’s prices for services include a

       profit, or an “unwarranted premium.” Id. at 11. The Commission also noted

       the guideline standard is “consistent with prior Commission orders indicating

       that services and materials affiliates provide to utilities are to be at cost, with no

       profit to be made by the affiliated interest from the transaction.” Id. (citing

       Petition of L.M.H. Utils. Corp., Cause No. 43022, 2007 WL 2826620 (IURC

       March 22, 2007)).




       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019         Page 16 of 22
[25]   The evidence was sufficient to support the Commission’s decision that the

       NARUC guidelines should apply to the SAMCO-related expenses and that

       HSE failed to show the fees were justified under those guidelines.11 HSE’s

       contentions to the contrary are requests that we reweigh the evidence, which we

       cannot do. S. Ind. Gas & Elec. Co., 120 N.E.3d at 207. Furthermore, because

       the Commission explained why it decided that the NARUC guidelines apply to

       the SAMCO-related expenses and made specific findings pointing to evidence

       supporting that decision, it complied with our remand order in HSE III. 115

       N.E.3d at 515.


                            Commission’s Statutory Authority
[26]   HSE asserts that the Commission “exceeded its statutory authority” when it

       required “HSE to produce records beyond SAMCO’s ‘joint or general

       expenses.’” HSE’s Br. at 43. HSE errs on two counts. First, the Commission

       made no such order; it simply stated that HSE must present evidence related to

       SAMCO’s fully allocated cost, without elaborating on the precise type of

       documentation required and without requiring documentation relating to any

       client of SAMCO other than HSE. App. Vol. V at 9.12




       11
          Nor did HSE point to any evidence supporting its contention that the SAMCO-related expenses should be
       based on “incremental cost, or [an]other pricing mechanism,” as allowed by the NARUC guidelines “under
       appropriate circumstances.” Id. at 8. As the Commission found, HSE did not provide any evidence related
       to cost, incremental or otherwise. Id. And HSE does not indicate what “other pricing mechanism” would
       apply besides the prevailing market rate, for which the Commission found insufficient evidence.
       12
          The only evidence to which HSE points in support of its contention is Exhibit Volume III at pages 80 and
       329. However, the documents contained therein refer only to discovery requests made by OUCC, not

       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                           Page 17 of 22
[27]   Second, the Commission acted fully within its statutory authority when it held

       that HSE must provide evidence of SAMCO’s fully allocated costs to justify its

       requested rate increase now and in its next rate case. State law requires that the

       Commission insure that public utilities provide “constant, reliable, and efficient

       service to the citizens of Indiana,” including reasonable rates. S. Ind. Gas &

       Elec. Co., 120 N.E.3d at 207; Ind. Code § 8-1-2-4. To fulfill that purpose, the

       Commission is given statutory authority to “inspect the books, accounts,

       papers, records, and memoranda of any public utility.” I.C. § 8-1-2-49(1); see

       also I.C. § 8-1-2-12 (“The commission shall prescribe the forms of all books,

       accounts, papers and records required to be kept, and every public utility is

       required to keep and render its books, accounts, papers and records accurately

       and faithfully in the manner and form prescribed by the commission and to

       comply with all directions of the commission relating to such books, accounts,

       papers and records.”); IC § 8-1-2-18 (“The … commission shall have authority

       … to inspect and examine any and all books, accounts, papers, records and

       memoranda kept by such public utility.”); I.C. § 8-1-2-26 (“Each public utility

       shall furnish to the commission in such form and at such time as the commission

       shall require, such accounts, reports, and information as will show … completely

       and in detail the entire operation of the public utility in furnishing the unit of its

       product or service for the public.” (emphasis added)); I.C. § 8-1-2-48 (“The

       commission shall inquire into the management of the business of all public




       documents required by the Commission. HSE’s Br. at 42 (citing transcript of testimony of OUCC witness
       and OUCC’s “Data Request Nos. 9.7 and 9.8 regarding access to SAMCO accounting records”).

       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                        Page 18 of 22
       utilities, and shall keep itself informed as to the manner and method in which

       the same is conducted and shall have the right to obtain from any public utility

       all necessary information to enable the commission to perform its duties.”);

       U.S. Gypsum, Inc. v. Ind. Gas Co., Inc., 735 N.E.2d 790, 798 (Ind. 2000) (holding

       that, in setting rates, the Commission “must examine every aspect of the

       utility’s operations and the economic environment in which the utility functions

       to ensure that the data it has received are representative of operating conditions

       that will, or should, prevail in future years” (emphasis added)).


[28]   The Commission also has authority to access the financial statements of

       affiliates of utilities. Indiana law provides that the Commission


               shall have jurisdiction over affiliated interests having
               transactions, … with utility corporations …, to the extent of
               access to all accounts and records of joint or general expenses,
               any portion of which may be applicable to such transactions, and
               to the extent of authority to require such reports to be submitted
               by such affiliated interests, as the commission may prescribe.


       I.C. § 8-1-2-49(2).


[29]   The Commission’s 2019 Order requiring evidence of SAMCO’s fully allocated

       cost did not exceed its statutory authority.


                                           Rule Promulgation
[30]   HSE maintains that the 2019 Order reflected an improper attempt to create an

       agency rule regarding the application of the NARUC guidelines, rather than an

       administrative adjudication. When agencies engage in rulemaking, they must

       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019        Page 19 of 22
       comply with the requirements of Indiana’s Administrative Rules and

       Procedures Act (ARPA). I.C. § 4-22-2-13(a); see also Ward v. Carter, 90 N.E.3d

       660, 662 (Ind. 2018), cert. denied, 139 S.Ct. 240 (2018). Indiana law defines a

       “rulemaking action” as “the process of formulating or adopting a rule,” but

       specifically excludes “agency action” from that definition. I.C. § 4-22-2-13(c).

       “Agency action” is defined as including “[t]he whole or a part of an order.”

       I.C. § 4-22-2-13(d) (referring to definition contained in I.C. § 4-21.5-1-4).


[31]   Caselaw has further articulated the elements that make up an administrative

       “rule,” as opposed to an administrative “order.”


               Characteristics of a rule were enunciated in Blinzinger v.
               Americana Healthcare Corp., 466 N.E.2d 1371 (Ind. Ct. App.
               1984). In Blinzinger, we found that a rate fee directive adopted by
               the Indiana Department of Public Welfare [now Indiana Utility
               Regulatory Commission] was a rule because: (1) it was an
               agency statement of general applicability to a class; (2) it was
               applied prospectively to the class; (3) it was applied as though it
               had the effect of law; and (4) it affected the substantive rights of
               the class. Id. at 1375.


       Villegas v. Silverman, 832 N.E.2d 598, 609 (Ind. Ct. App. 2005). On the other

       hand, an administrative adjudication is “‘the administrative investigation,

       hearing, and determination of any agency of issues or cases applicable to

       particular parties.’” Ind. Alcohol & Tobacco Comm’n v. Lebamoff Enter., Inc., 27

       N.E.3d 802, 815 (Ind. Ct. App. 2015) (quoting Blinzinger, 466 N.E.2d at 1374)).


[32]   Here, on remand, the Commission did not issue an administrative rule but

       rather an administrative order—as this Court directed it to do in HSE III. 115
       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019       Page 20 of 22
N.E.3d at 515. Despite HSE’s repeated characterization of the order as one

applying to a “class,” it is apparent from the face of the 2019 Order that it

applies only to HSE. The order explicitly notes that the NARUC guidelines

“are not binding upon the Commission” but explains in detail why those

guidelines nevertheless apply in this particular case. App. Vol. V at 9, 11.

Thus, the holding that HSE must comply with the NARUC guidelines by

demonstrating that its requested rate increase was based on the lower of the

prevailing market price or the fully allocated costs was not an agency statement

“of general applicability to a class,” nor was it applied prospectively to a

“class.”13 Villegas, 832 N.E.2d at 609; cf. Ind.-Ky. Elec. Corp. v. Comm’n, Ind.

Dep’t of Env’t Mgmt., 820 N.E.2d 771, 779-80 (Ind. Ct. App. 2005) (holding

IDEM statement of policy was generally applicable and designed to have the

effect of law and, therefore, invalid for failure to comply with the procedural

requirements of ARPA). The Commission did not improperly attempt to create

a rule in its 2019 Order.14




13
   HSE cites no authority or cogent reasoning for its unique argument that the Commission decision in this
individual utility rate case must apply to all “similarly situated” non-party utilities in the State or else violate
Indiana Code Section 8-1-2-68, which requires that the Commission “fix” any rates it finds to be “unjust,
unreasonable, insufficient, or unjustly discriminatory.” Therefore, that argument is waived. Ind. Appellate
Rule 46(A)(8)(a).
14
    Because the Commission issued an order rather than a rule, it was not required to provide “prior notice”
of its decision or comply with other procedural requirements of ARPA that are applicable to administrative
rulemaking. See I.C. §§ 4-22-2-23 through -43.

Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019                                    Page 21 of 22
                                                 Conclusion
[33]   The Commission sufficiently explained, and cited sufficient evidentiary support

       for, its decision that HSE must comply with the NARUC guidelines by

       providing evidence that its requested SAMCO-related expenses are based on the

       lower of prevailing market prices or fully allocated cost and that HSE failed to

       do so. Furthermore, the Commission acted within its statutory authority when

       it ordered HSE to provide evidence of SAMCO’s cost data. And the

       Commission’s 2019 Order was not an improper attempt to create an

       administrative agency rule.


[34]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-EX-632 | October 15, 2019     Page 22 of 22
