DEPARTMENT OF PUBLIC SERVICE REGULATION

BEFORE THE PUBLIC SERVICE COMMISSION

OF THE STATE OF MONTANA

*****

IN THE MATTER OF THE ) UTILITY DIVISION

PETITION FOR A RULEMAKING )

OF RON TUSSING & DR. PAUL )

WILLIAMSON ) DOCKET NO. ______________________

Petitioners. )

PETITION TO PROMULGATE A RULE REQUIRING LED LUMINAIRES ON ALL NEW STREET AND AREA LIGHTING APPLICATIONS

COMES NOW YOUR PETITIONER Pursuant to Montana Codes Annotated (MCA) § 2-4-315 and Administrative Rules of Montana (ARM) § 1.3.308 and respectfully requests the Commission to promulgate the following rule:

1) New installations must be LED. After promulgation of this rule, all public utilities regulated under the Commission’s jurisdiction shall themselves be required and shall require all entities served by the regulated utility:

a) To use only LED luminaires (or a product producing required light with superior or equivalent energy saving characteristics) on all street lighting applications installed in the utility’s service area.

b) To use only LED luminaires (or a product producing required light with superior or equivalent energy saving characteristics) on all area lighting applications installed in the utility’s service area.

c) In conjunction with the requirements of this paragraph, regulated utilities shall apply to participate in the DOE GATEWAY Demonstrations program found at http://www.netl.doe.gov/ssl/caliper_search.html using the short application form found at http://www.netl.doe.gov/ssl/PDFs/IntenttoParticipate_UtilityorEEO.pdf

2) LED Retrofits. One year after promulgation of this rule, or whenever a utility’s or utility customer’s existing stock of non-LED luminaires is depleted, whichever comes first, all public utilities regulated under the Commission’s jurisdiction shall themselves be required and shall require all entities served by the regulated utility:

a) To use only LED luminaires (or a product producing required light with superior or equivalent energy saving characteristics) on all street lighting applications where bulbs are being replaced in the utility’s service area if the existing luminaire has been in service for 12 years or more, or if existing luminaires are being replaced.

b) To use only LED luminaires (or a product producing required light with superior or equivalent energy saving characteristics) on all area lighting applications where bulbs are being replaced in the utility’s service area if the existing luminaire has been in service for 12 years or more, or if existing luminaires are being replaced.

3) Variances. The Commission may grant persons, other than utilities who own street or area lighting in question, affected by this rule a variance from this provision upon a petition to the Commission accompanied by a showing of:

a) Financial hardship caused by the rule,

b) Diligent efforts to comply or partially comply with the rule, and

c) A plan for coming into full compliance within two years of the petition for a variance.

4) Specifications. Where the CBEA LED “Site Lighting Performance Specifications” or ANSI C78-377-2008, “Specifications for the Chromaticity of Solid State Lighting Products” are applicable, the latest draft of such specifications shall be adhered to by all persons installing LED lighting applications pursuant to this rule. The CBEA LED specifications may be found at: http://apps1.eere.energy.gov/buildings/publications/pdfs/highperformance/cbea_led-site-lighting-spec.pdf

5) New Tariffs & Progress Reporting.

a) After promulgation of this rule, each utility regulated by this Commission shall develop a cost-based tariff for LED street lights owned by the utility and a cost-based tariff for LED lights owned by any other entity. The tariff shall be filed for approval with the Commission.

b) If it has not already done so, the utility shall develop a cost-based tariff for non-LED street lights owned by the utility and a cost-based tariff for non-LED street lights owed by other entities.

c) To the extent that tariffs in paragraph b have already been developed, within 4 months of when this rule becomes effective, the utility shall provide the Commission with an indication of how many luminaires are being served under the existing tariffs and with a box & whisker plot with quartile and other descriptive statistics indicating how close the existing luminaires are to being fully depreciated. The report shall indicate the depreciation period being used for ratemaking purposes and the depreciation period being used for tax filing or any other purpose. The report shall indicate the portion of the tariff rate that is allocated to purchasing energy, the portion of the rate that is allocated to defray luminaire depreciation costs, and the portion allocated to other, itemized, items.

d) The utility shall include in its annual report to the Commission, a count of how many customers and luminaires are then being served under each of the tariffs specified in paragraphs 5a and 5b, and existing street light tariffs and shall provide for each the information requested in paragraph 5c.

6) Lending to Support Technology Transition.

a) Within 4 months after promulgation of this rule, each utility regulated by this Commission shall develop as part of its Demand Side Management Program a loan program that offers loans for persons affected by this rule to defray the cost of retrofitted LED luminaires installed pursuant to paragraph 2 of this rule. Such program may be instituted in conjunction with other lending entities. The programs shall be approved by this Commission.

b) Such loans shall be to insure compliance with this rule. However, persons who wish to avail themselves of transitions to LED technology prior to being required to do so under this rule, shall also be allowed to participate in the loan program.

c) Loans under this section shall be for a period equal to the payback period of the luminaire installation, not to exceed 13 years. All costs, including but not limited to luminaire, installation, maintenance costs, interest rates, and rising energy prices shall be included in the calculation of the payback period.

d) A utility shall apply for available federal funding or other grants to support the LED technology transition and shall assist local governments and other entities in applying for such funding.

JURISDICTIONAL STATEMENT IN SUPPORT OF PETITION

This petition is submitted pursuant to MCA § 2-4-315, which reads:

Petition for adoption, amendment, or repeal of rules. An interested person or, when the legislature is not in session, a member of the legislature on behalf of an interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. Each agency shall determine and prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 60 days after submission of a petition, the agency either shall deny the petition in writing or shall initiate rulemaking proceedings in accordance with 2-4-302 through 2-4-305. A decision to deny a petition or to initiate rulemaking proceedings must be in writing and based on record evidence. The written decision must include the reasons for the decision. Record evidence must include any evidence submitted by the petitioner on behalf of the petition and by the agency and interested persons in response to the petition. An agency may, but is not required to, conduct a hearing or oral presentation on the petition in order to develop a record and record evidence and to allow the petitioner and interested persons to present their views. [Emphasis added.]

And pursuant to Montana Statutes § 2-4-102(11)(a), which provides:

"Rule" means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. The term includes the amendment or repeal of a prior rule.

And pursuant to ARM § 385.8218, which provides:

38.5.8218 DEMAND-SIDE RESOURCES

(1) Energy efficiency and conservation measures can effectively contribute to serving total electricity load requirements at the lowest long-term total cost. A utility should develop a comprehensive inventory of all potentially cost-effective demand-side resources available in its service area and optimize the acquisition of demand-side resources over its planning horizon.

(2) A utility should evaluate the cost-effectiveness of demand-side resources and programs based on its long-term avoidable costs. Cost-effectiveness evaluations of demand-side resources should encompass avoidable electricity supply, transmission, and distribution costs.

(3) A nonparticipant (no-losers) test considers utility-sponsored demand-side management programs cost effective only if rates to customers that do not participate in the program are not affected by the program. A utility should not evaluate the cost-effectiveness of demand-side resources using a nonparticipant test.

(4) A utility should develop and strive to achieve targets for steady, sustainable investments in cost-effective, long-term demand-side resources. A utility's investment in demand-side resources should be coordinated with and complement its universal system benefits activities.

(5) Except when the entire resource would otherwise be lost, a utility's demand-side management programs should not be focused on "cream skimming;" the least expensive and most readily obtainable resource potential should be acquired in conjunction with other measures that are cost-effective only if acquired in a package with the least expensive, most readily available resources.

(6) Prudently incurred costs related to procuring demand-side resources are fully recoverable in rates. The commission will evaluate the prudence with which demand-side resources are procured, including resources acquired through programs, subcontractors, and competitive solicitations consistent with evaluations of supply-side resources.

(7) A utility's development of demand-side resources should include an examination of innovative methods to address cost recovery issues related to demand-side resource investments and expenses, including undesirable effects on revenues related to the provision of transmission and distribution services.

The facts, other propositions of law and other rationale supporting this petition are attached.

Information required by ARM § 1.3.308(1)(a)(i):

Ron Tussing

3033 Demaret Place

Billings, MT 59106

Phone: 406-690-9561

Dr. Paul Williamson

509 Westview Drive

Missoula, MT 59803

Phone: 406-370-6601

Addresses of other interested persons are to numerous to list. They include:

1) all utilities under the jurisdiction of the Montana Public Service Commission,

2) all street lighting districts within service areas of utilities under the jurisdiction of the PSC,

3) all customers of those lighting districts,

4) all users of area lighting within the service areas of utilities under the jurisdiction of the PSC,

5) the Montana Consumer Council,

6) various consumer, environmental, business and industry group, and news media and

7) manufacturers of LED and other street lighting technologies.

In lieu of serving all the above interested persons, it is requested that the Commission give notice pursuant to ARM § 38.2.1801, to all of the above interested parties as members of the public and rule that it is otherwise sufficient notice that the documents in this proceeding be posted on the PSC website and that documents submitted by petitioners also be posted at www.newworldwindpower.com .

Respectfully submitted,

______________________ January 22, 2009

Russell L. Doty

Attorney at Law

3878 N. Tanager Ln

Billings, MT 59102-5916

Phone: 406-696-2842