The opinion
Josephine Linker Hart, Judge, dissenting. I must respectfully dissent because I conclude that the Commission exceeded its powers in imposing a temporary surcharge for the purpose of creating this kind of program. Act 310 of 1981, codified at Ark. Code Ann. §§ 23-4-501 through 23-4-509 (Repl. 2002), provided a method by which a public utility could comply with legislative or regulatory requirements requiring the utility to “make substantial additional investments or incur additional expenses with respect to existing facilities used and useful in providing service to the utility’s customers. ...” Ark. Code Ann. § 23-4-501 (a)(1) (Repl. 2002) (emphasis added). Further, the Act’s emergency clause provided that its enactment was necessitated by the then-existing statutory framework’s failure to “provide for a procedure to permit immediate recovery of additional expenditures with respect to existing facilities. . . .” (Emphasis added.) The emergency clause also provided that, prior to the passage of the Act, public utilities were required to “make expenditures to provid & facilities . . . which costs cannot be recovered in a prompt and timely manner. . . .” (emphasis added). As noted by the majority, this Act enabled utilities to recover the costs associated with federally-mandated removal of asbestos from an existing facility. Arkansas Oklahoma Gas Corp. v. Arkansas Pub. Serv. Comm’n, 301 Ark. 259 , 783 S.W.2d 350 (1990). There is no other Arkansas authority that has interpreted this statutory provision.
By contrast, I simply cannot envision how this surcharge could be considered an'investment or an expense associated with a facility. I cannot conceive that the Legislature had this kind of program in mind when it limited surcharges to expenses and investments related to facilities. Arguably, this program may well have laudable goals. However, in the absence of a specific grant of authority by the Legislature to the Commission permitting the use of surcharges for this express purpose, I must conclude that the Commission exceeded its powers in implementing the surcharge.
I respectfully dissent.
Roaf, J., joins.