MEMORANDUM DECISION
                                                                  Jun 11 2015, 10:01 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
A. David Stippler                                        Robert E. Heidorn
Randall C. Helmen                                        P. Jason Stephenson
Lorraine Hitz-Bradley                                    Joshua A. Claybourn
Indianapolis, Indiana                                    Vectren Corporation
                                                         Evansville, Indiana

                                                         Mark J. Crandley
                                                         Barnes and Thornburg, LLP
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Indiana Office of Utility                                June 11, 2015
Consumer Counselor,                                      Court of Appeals Case No.
                                                         93A02-1409-EX-668
Appellant-Statutory Representative,
                                                         Appeal from the Indiana Utility
        v.                                               Regulatory Commission; The
                                                         Honorable Loraine L. Seyfried,
                                                         Administrative Law Judge; The
Southern Indiana Gas and                                 Honorable Carol A. Stephan,
Electric Company, d/b/a                                  Commission Chair;
                                                         IURC Cause Nos.: 44429 and 44430
Vectren Energy Delivery of                               (Consolidated)
Indiana, Inc.,
Appellee-Plaintiff.




May, Judge.


Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-668 | June 11, 2015       Page 1 of 4
[1]   The Indiana Office of Utility Consumer Counselor (“OUCC”) appeals a

      determination by the Indiana Utility Regulatory Commission that Vectren

      Energy Delivery of Indiana, a gas utility, is not obliged to reduce its rate

      recovery for certain infrastructure improvements based on the value of assets it

      retires from service.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2013 Vectren petitioned the Commission to recover costs for improvements

      to its system. Specifically, it petitioned to recover for system upgrades required

      by federal mandates and for costs of projects that improve or replace features of

      its gas transmission and distribution system. The Commission entered an order

      authorizing the cost recovery. The order had the effect of permitting Vectren to

      charge its ratepayers for both a new plant and a plant that was replaced and

      would no longer be used to serve customers.


                                     Discussion and Decision
[4]   The OUCC argues on appeal Vectren should not have been permitted to

      recover costs for retiring an asset unless it also reduced the return attributable to

      the retired asset in its existing rate base. We recently resolved this question in

      Vectren’s favor in NIPSCO Indus. Grp. v. N. Indiana Pub. Serv. Co., No. 93A02-

      1403-EX-158 (Ind. Ct. App. Apr. 8, 2015). There, as in the case before us, the

      Commission rejected the OUCC’s argument that a utility company should be



      Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-668 | June 11, 2015   Page 2 of 4
      required to reduce its return and depreciation so that it was not recovering on

      both replaced assets and the new replacement assets.


[5]   We affirmed the Commission’s decision to allow NIPSCO to recover for

      certain projects without subtracting for returns or depreciation already being

      recovered for the assets being replaced: “Although we have significant

      concerns over the allegedly inconsistent treatment of this subject by the

      Commission, in light of the deference owed to the Commission, we cannot say

      that its methodology is erroneous given the lack of specificity in the statutes

      regarding this calculation.” Id. at *10.


[6]   The OUCC concedes the issue before us is “the identical issue” addressed in

      NIPSCO. (Br. of Appellant Indiana Office of Utility Consumer Counselor at 11

      n.4.). We decline to revisit the NIPSCO analysis and accordingly affirm the

      Commission’s order. 1




      1
        In this appeal, intervenor Vectren Industrial Group (VIG) submitted the NIPSCO decision in a Notice of
      Additional Authority. It notes that in NIPSCO, we addressed the additional question “whether the
      Commission erred by allowing NIPSCO to specifically identify the proposed projects for only the first year of
      the seven-year plan and by establishing a presumption that the proposed projects for years two through seven
      of the plan were eligible for special ratemaking treatment.” NIPSCO, No. 93A02-1403-EX-158, at *1. VIG
      invites us to “give due consideration to this new judicial interpretation,” (Vectren Industrial Group’s Notice
      of Additional Authority at 2), of the statute at issue in this appeal.
      Vectren moved to strike the Notice of Additional Authority. As no party raised that issue before the
      Commission in the Vectren proceedings, it is waived on appeal. See, e.g., Spring Hills Developers, Inc. v.
      Reynolds Grp., Inc., 792 N.E.2d 955, 959 (Ind. Ct. App. 2003) (allegation of error waived on appeal when
      party “did not make that argument or tender additional evidence to the IURC.”). We accordingly decline to
      address that issue, and in an Order issued today, we grant Vectren’s Motion to Strike.



      Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-668 | June 11, 2015                Page 3 of 4
[7]   Affirmed.


      Robb, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-668 | June 11, 2015   Page 4 of 4
