STATE OF NEW YORK PUBLIC SERVICE COMMISSION
______
Petition for Declaratory Ruling of New York City Health and Hospitals Corporation, Regarding Case ______Consolidated Edison Company of New York, Inc.’s Schedule for Gas Service ______
PETITION FOR DECLARATORY RULING OF NEW YORK CITY HEALTH AND HOSPITALS CORPORATION REGARDING GAS SERVICE TO COLER SPECIALTY HOSPITAL AND NURSING HOME
Dated: April 4, 2014
COUCH WHITE, LLP 540 BROADWAY P.O. BOX 22222 ALBANY, NEW YORK 12201-2222 518-426-4600
PRELIMINARY STATEMENT
Pursuant to Rule 8.1 of the New York State Public Service Commission’s
(“Commission”) Rules of Procedure, 16 NYCRR § 8.1, the New York City Health and Hospitals
Corporation (“HHC”) hereby files this Petition for a Declaratory Ruling requesting the
Commission to declare that:
1) General Rule III of Consolidated Edison Company of New York,
Inc.’s (“Con Edison”) Schedule for Gas Service (“Gas Tariff”) requires Con
Edison to bear the material and installation costs associated with upgrading
an approximately 938-foot existing natural gas line serving Coler Hospital;
and
2) General Rule III of Con Edison’s Gas Tariff requires Con Edison to
operate and maintain the upgraded gas line at no cost to HHC.1
STATEMENT OF FACTS
HHC is the largest municipal healthcare organization in the country. HHC provides medical, mental health and substance abuse services through its 11 acute care hospitals, four skilled nursing facilities, six large diagnostic and treatment centers and more than 70 community based clinics. One such facility is the Coler Specialty Hospital and Nursing Facility located on
1 The Commission can issue declaratory rulings “with respect to…the applicability to any person, property, or state of facts of any rule or statute enforceable by the Commission or the validity of any such rule.” 16 NYCRR § 8.1(a)(1). Here, HHC is seeking a declaratory ruling regarding the applicability of Con Edison’s Gas Tariff to the upgrade of an existing Con Edison gas line. The Con Edison Gas Tariff is a “rule…enforceable by the Commission.” See Case 12- S-0147, Petition for Declaratory Ruling by Vornado Realty Trust, Order Denying Petition for Declaratory Ruling (Issued September 17, 2012) at 6. 1
Roosevelt Island (“Coler Hospital”), a narrow island in the East River between Manhattan and
Queens. Coler Hospital is a comprehensive care center committed to providing quality medical, rehabilitative and long-term care services to all New York City residents without regard to source of payment, with centers of excellence in the area of geriatrics, rehabilitation and HIV/AIDS care.
Coler Hospital was previously part of Coler-Goldwater Specialty Hospital and Nursing Facility which operated on two distinct campuses: the Coler Hospital campus located on the northern end of Roosevelt Island and Goldwater Hospital located on the southern end of Roosevelt Island. At the end of 2013, the Goldwater campus was closed. This petition pertains to gas service to the
Coler Hospital campus, and in particular Con Edison’s obligations to upgrade the existing gas service located in the street leading up to Coler Hospital.
1. History of the Public Street System on Roosevelt Island
Roosevelt Island is owned by the City of New York and is considered to be a part of the Borough of Manhattan. On December 23, 1969, the City leased Roosevelt Island to the
New York State Urban Development Corporation (“UDC”), a public benefit corporation and political subdivision of New York State, for 99 years (the “Lease”). The Lease is attached to this
Petition as Exhibit A. On the same day the Lease was signed, the City and UDC entered into an agreement for UDC to oversee the management, operation and development of Roosevelt Island
(the “Agreement”). Today, Roosevelt Island is managed, operated and developed by the Roosevelt
Island Operating Corporation (“RIOC”), the successor to the UDC and itself a political subdivision of the State of New York.2
2 The property on which Coler Hospital sits, and five feet from the exterior walls of all Coler Hospital buildings, are specifically excluded from the leased premises. Lease at 40.
2
Pursuant to the Lease and the Agreement, UDC, through a subsidiary called the
Welfare Island Development Corporation, was required to develop and manage certain
“Improvements” and “Public Facilities” on Roosevelt Island. The term “Improvements” is defined
in the Lease as “any building, structure, utility, roadway, street, park, public facility, sidewalk,
landscaping, site improvement, development and other betterment to be provided by or caused to
be provided by the Lessee pursuant to the General Development Plan.”3 The “Public Facilities”
are defined in the Plan and include “a public street system” and “utility facilities including…gas,
telephone and electric lines….”4
The Plan discusses the principal vehicular routes to be constructed on Roosevelt
Island. The Plan calls for the route to start from a motor gate at the Roosevelt Island Bridge and
extend north to Coler Hospital and Lighthouse Park and south to Goldwater Hospital.5 This route is known as Main Street, and it presently extends north from the Roosevelt Island Bridge motor gate and heads north-east until it reaches the Island’s eastern shore. Main Street then continues north until it reaches the southern edge of Coler Hospital, where it turns left and runs across the
Island to the Island’s western shore. There are two streets extending north from Main Street along the east and west flanks of Coler Hospital – East Road and West Road. These two streets end at approximately the mid-point of the Coler Hospital campus. These streets, which upon information and belief are currently maintained by RIOC, are all depicted on a printout from Google maps
3 Id. at 22. The General Development Plan (“Plan”) is attached to the Lease as Schedule 2.
4 Id. at 46.
5 Id. at 49. 3
attached to this Petition as Exhibit B. This Exhibit also includes a “street view” printout showing
East Road traveling north on Roosevelt Island into a parking lot for Coler Hospital.
Con Edison has been providing natural gas service to customers on Roosevelt
Island for decades. In 1988, Con Edison signed an easement agreement with UDC and RIOC
setting forth Con Edison’s rights and responsibilities with respect to existing and future gas and
electric facilities located on Roosevelt Island. Pursuant to this easement agreement, Con Edison
assumed full responsibility for the ownership, operation, maintenance, repair, replacement and
restoration of Con Edison’s existing and future gas and electric utility lines, pipes, conductors, transformers, facilities, equipment and appurtenances, as those facilities are shown on Exhibit B to the easement agreement. Upon information and belief, this easement agreement has been modified and supplemented since 1988 to reflect new facilities that have been installed after the easement agreement was signed.
According to HHC’s records, Con Edison installed the existing gas line serving
Coler Hospital in or around 1996. Con Edison owns and operates this existing gas line. To the extent the existing easement agreement between RIOC and Con Edison does not reflect this gas line as being a Con Edison facility, the easement agreement will need to be amended to reflect the current situation on Roosevelt Island.
2. Coler Hospital’s Need for New Heat Supply and Upgraded Natural Gas Service
Since the 1930s, Coler Hospital’s sole source of heat supply has been a steam plant
located on the southern Goldwater campus. On December 19, 2011, then-New York City Mayor
Michael Bloomberg announced that Cornell University and its partner, the Technion – Israel
Institute of Technology, had won a bid for a new applied sciences and technology campus to be built on Roosevelt Island (“Cornell NYC Tech”). Construction of the Cornell NYC Tech campus
4
will require demolition of the Goldwater Hospital campus. The steam plant, which was built in
the 1930s, is now in disrepair, is inefficient, and burns only No. 6 fuel oil, which is being phased
out pursuant to regulations promulgated by the NYC Department of Environmental Protection.
Moreover, with the demolition of Goldwater Hospital, the steam plant is substantially over-sized
to supply heat to only Coler Hospital. Due to this combination of circumstances, the steam plant
will be decommissioned in 2014. As a result of the steam plant’s shut down, Coler Hospital needed
to find a new way to satisfy its heating needs so that it can continue providing critical health care
services to hundreds of patients. HHC ultimately chose to install new, high-efficiency natural gas
fired boilers on the Coler Hospital campus that will be appropriately sized and provide
significantly cleaner thermal energy than the steam plant.
Coler Hospital has been a natural gas customer of Con Edison for decades.
Currently, Con Edison delivers natural gas to Coler Hospital via an existing 4” medium-pressure
gas line. This existing line is fed from a Con Edison gas main that travels north on Roosevelt
Island until it reaches Main Street. At Main Street, the gas line turns east for approximately 150
feet, where it then turns and travels north on East Road (“East Road Line”). The existing East
Road Line enters Coler Hospital at about the mid-point of the hospital campus, near the Hospital’s
cafeteria building. Con Edison’s existing gas meter is located in the basement of the building
where it enters the Hospital. The location of the East Road Line is shown in the schematic
drawings provided by Con Edison, and attached to this petition as Exhibit C.6
6 The first page of the schematic shows the East Road Line (in green) travelling horizontally along the south face of Coler Hospital and turning north along East Road. The second page of the schematic shows the East Road Line continuing north on East Road and the connection to the existing point of entry. 5
In 2012, representatives from HHC met with Con Edison to discuss HHC’s boiler
replacement plans. The parties determined that the existing East Road Line does not have enough
capacity to supply Coler Hospital’s anticipated gas usage. Con Edison determined that the existing
East Road Line would have to be upgraded from a 4” line to an 8” line. In addition to upgrading
the East Road Line, HHC requested that Con Edison install a new, second point-of-entry near the
southern entrance to Coler Hospital (“EDF Line”). Following several discussions with Con Edison
representatives, Con Edison agreed to upgrade the existing 4” line at no cost to Coler Hospital and
to install the new EDF Line at a cost to HHC of $22,786.97. This determination is set forth in
email correspondence between HHC and Con Edison representatives and is attached to this
Petition as Exhibit D. The schematic drawings for this project, provided by Con Edison and
included with Exhibit C, clearly designate the new, second point of entry as the only Excess
Distribution Facility.
Following a site visit in August, 2012, however, Con Edison reversed its prior
position and determined that HHC is responsible for the full cost of upgrading the East Road Line.
In a letter dated September 25, 2012, attached hereto as Exhibit E, counsel for Con Edison
concluded that “the Company’s right to construct, install, and maintain gas facilities exists only in
public rights-of-way where the governmental authority having jurisdiction will permit the
Company to install and maintain facilities.” This letter further sets forth Con Edison’s position
that “public rights-of-way” are “streets that are mapped and open New York City public rights-of-
way where the Company has the authority to install and maintain its facilities….” Con Edison has
never explained why it violated this purported rule when it installed the existing East Road Line.
Although Con Edison has agreed to perform the installation work to upgrade the
East Road Line, it now maintains that HHC is responsible for the entire material and installation
6
cost associated with the upgraded East Road Line. In December, 2012, Con Edison estimated the cost of this installation at $387,461.62. A copy of this estimate is attached as Exhibit F. So, Con
Edison has changed the cost of the upgrade from zero to $387,461.62, a sum that is very difficult for HHC to pay.7
Con Edison also maintains that HHC is responsible for securing an easement or other similar property rights from RIOC that allow Con Edison to install the upgraded East Road
Line. Once the East Road Line is upgraded, Con Edison claims that HHC is responsible for all costs to operate and maintain the East Road Line (however, Con Edison has stated it will perform these functions on HHC’s behalf).
HHC disagrees with Con Edison’s determination that HHC is responsible for the material and installation costs, as well as the ongoing operation and maintenance, for the upgraded
East Road Line. Representatives from HHC and Con Edison met several times in 2013, including once with Department of Public Service Staff, in an attempt to reach a mutually-acceptable resolution of these issues. These meetings were ultimately unsuccessful and HHC is therefore filing this Petition to seek a determination of Con Edison’s responsibilities under its Gas Tariff with respect to the upgraded East Road Line.
ARGUMENT
POINT I
THE GAS TARIFF REQUIRES CON EDISON TO UPGRADE THE EAST ROAD LINE AT NO COST TO HHC
The cost responsibility rules under Con Edison’s Gas Tariff differ depending on whether the upgraded East Road Line is a “main” or a “service line.” Con Edison has not yet
7 HHC acknowledges that it is responsible for the cost of the EDF Line. 7
stated whether it considers the upgraded East Road Line to be a main or a service line. As set forth
below, however, although the upgraded East Road Line appears to HHC to be a main, for purposes
herein the classification is irrelevant because under either classification Con Edison is required by
its Gas Tariff to bear the entire material and installation cost to upgrade the East Road Line.
1. If the Upgraded East Road Line is a Main, Con Edison is Required to Absorb the Entire Material and Installation Cost Because the East Road Line Satisfies the Revenue Test A “main” is defined as a “pipeline located on a public or private right-of-way which
is generally available or used to transport gas to more than one service line.” For non-residential,
firm, non-dual fuel customers, like Coler Hospital, Con Edison is generally required to bear the
material and installation costs for up to 100 feet of main and appurtenant facilities. If the customer
requires more than 100 feet of new main, the customer is responsible for paying for that additional
gas main via a surcharge on the customer’s gas bill. Con Edison cannot impose a surcharge,
however, if the customer satisfies the revenue test set forth in General Rule III 3 (C) (1) (f) of the
Gas Tariff. This revenue test prohibits Con Edison from imposing a surcharge if the “total adjusted
gas revenue from all Customers served from a main extension is estimated to exceed 40 percent of
the actual reasonable cost of such extension in each of any two consecutive calendar years.”8
While the upgraded East Road Line will be supplying gas to only one customer,
Coler Hospital, a gas line is a “main” under the Gas Tariff if the line is “generally available or used” to transport gas to more than one service line. There is no requirement for a main to serve
more than one customer. In this case, the upgraded East Road Line will be used to transport gas
to more than one service line. As shown in the schematic drawing included with Exhibit C, the
8 The term “adjusted gas revenue” is defined as “the revenue realized from the base rates applicable to Service Classification Nos. 1, 2, 3, and 13, and from the [sic] corresponding firm transportation rates applicable to Service Classification No. 9, excluding the charges for the first three therms (minimum charge).” Gas Tariff General Rule II (4). 8
EDF Line will actually extend off of the upgraded East Road Line. Therefore, even though the upgraded East Road Line is designed to serve just one customer, it will be “generally available or used” to transport gas to more than one service line and thus should be considered a “main” under
the Gas Tariff.
If the upgraded East Road Line is considered a main, then HHC would be
responsible for material and installation costs in excess of 100 feet, unless HHC satisfies the
revenue test. As noted above, Con Edison has estimated the cost to upgrade the East Road Line at
$387,461.62. Once the new boilers are operational, Coler Hospital anticipates using
approximately 725,000 therms per year. Based on recent base rates in effect for Service
Classification No. 2, Rate II, Con Edison can expect approximately $242,000 per year in adjusted
gas revenue from Coler Hospital. This is equal to more than 60 percent of the cost of the upgrade.
Therefore, if the upgraded East Road Line is a main, it will pass the Gas Tariff’s revenue test and
Con Edison cannot impose a surcharge on HHC for the material and installation costs of the Line.
2. If the Upgraded East Road Line is a Service Line, Con Edison is Required to Absorb the Entire Material and Installation Cost Because East Road is a Public Right of Way
A “service line” is defined as “piping . . . that transports gas below grade from a
main to the first accessible fitting inside the wall of a Customer's building when a meter is located
within the building; if a meter is located outside the building, the service line will be deemed to
terminate at the outlet of the meter if the piping continues into the structure above ground, and at
the outside of the building foundation wall if the piping returns underground before entering the
structure.”9
9 Gas Tariff General Rule II (29).
9
For non-residential customers like Coler Hospital, Con Edison is required to bear
the material and installation costs for any service line located in the public right-of-way. If the
customer requires service lines, service connections and appurtenant facilities outside of the public
right-of-way, the customer is responsible for paying for these facilities in one lump sum.10 As
discussed below, East Road leading up to Coler Hospital is a “public right-of-way.” Because the
upgraded East Road Line will be installed in this public right-of-way, if the East Road Line is a
service line, then Con Edison is required to absorb the entire installation cost associated with
upgrading the East Road Line.
The Gas Tariff defines a “public right of way” as “the territorial limits of any street,
avenue, road or way (other than a limited access thoroughfare) that is for any highway purpose
under the jurisdiction of the State of New York or the legislative body of any county, city, town
or village and is open to public use.”11 This definition tracks the definition of “public right-of- way” found in Part 230 of the Commission’s regulations.12
In its September 25, 2012 letter, Con Edison contends that a street or road must
appear on the official City Map in order to be considered a “public right-of-way” under the Gas
Tariff. There is no such requirement in the Gas Tariff. To the contrary, as explained in more detail
below, East Road is a “public right-of-way” under the Gas Tariff because it: (1) is a street, avenue,
road or way (other than a limited access thoroughfare); (2) is used for a highway purpose; (3) is
10 Id. at General Rule III 3 (C) (4).
11 Id. at General Rule II (22).
12 16 NYCRR § 230.1(c).
10
within the jurisdiction of New York State or the legislative body of any county, city, town or
village within the State; and (4) is open to public use.
Neither the Gas Tariff nor the Commission’s regulations define several terms used in the definition of “public right-of-way,” such as “street,” “avenue,” “road,” “way,” “limited access thoroughfare” and “highway purpose.” Under the rules of statutory interpretation, courts will construe statutory terms based on their ordinary and natural meaning.13 Indeed, where the
words are clear and unambiguous, courts may not read into the statute a different meaning.14 On the other hand, where the words are not clear, a court will look to the Legislature’s intent in drafting the statute to determine the effect to give the terms.15 In doing so, the court may use all available
aids to determine the legislative intent.16
Under any obvious and natural reading of the Gas Tariff, East Road clearly qualifies
as a “street, avenue, road or way.”17 East Road is located in the Borough of Manhattan and the
public has access to it and can drive upon it. As can be seen from the picture included as Exhibit
B, East Road is clearly designed for such vehicular travel. In fact, it appears from Exhibit B that
a Con Edison vehicle is driving north on East Road with no restriction. Thus, East Road is also
clearly “open to public use.” Furthermore, the property underlying East Road is currently leased
13 N.Y. Stat. § 94 (McKinney 1971)
14 Id. § 76.
15 Id. § 92; see also In re Albany Law Sch. v. NYS Off. of Mental Retardation and Dev. Disabilities, 19 N.Y.3d 106, 120 (2012).
16 N.Y. Stat. § 92; In re Albany Law Sch, 19 N.Y.3d at 120.
17 To further eliminate any doubt on this point, courts in New York have held that the term “street” essentially means a road located in an urban community, such as a village, town or city. See Ciarelli v. Lynch, 69 A.D.3d 1008 (3d Dept. 2010). 11
to RIOC, a political subdivision of New York State responsible for maintaining the public street system on Roosevelt Island. As such, East Road is “within the jurisdiction of the State of New
York.”
The only remaining elements are whether East Road is used for a “highway purpose” and whether it is a “limited access thoroughfare.” Because these terms are not as clear as the other elements, the NYS Vehicle and Traffic Law (“VTL”) and the NYS Highway Law provide relevant insight into the meaning of these terms. The terms “highway” and “street” have the same definition under the VTL: “the entire width between the boundary lines of every way publicly maintained when any part is open to the use of the public for purposes of vehicular travel.”18 Under the Highway Law, the test of whether a road or way is a “public highway” similarly turns on access – “if the public has general right of passage in motor vehicles, then the road or way will be considered a ‘public highway.’”19 While the term “limited access thoroughfare” is not specifically defined in the VTL or Highway Law, the VTL suggests this term is referring to highways, like the Bronx River Parkway, that have multiple controlled access points and are designed for high-speed traffic.20
Because members of the public can and do use East Road for vehicular travel, and because East Road is publicly maintained, East Road is used for a “highway purpose.” Further,
18 See Id. §§ 118, 148.
19 64 N.Y. Jur.2d, Highways, Streets, and Bridges, § 2 (2012).
20 See VTL § 109 (defining a “controlled access highway” as “[e]very highway, street, or roadway in respect to which owners or occupants of abutting lands and other persons have no legal right or access to or from the same except at such points only and in such manner as may be determined by the public authority having jurisdiction over such highway, street, or roadway.”).
12
East Road is not designed for high-speed travel with specific and limited points of entry, and therefore is not a “limited access thoroughfare.”
Based on the foregoing, East Road satisfies all of the elements of a “public right- of-way” under the Gas Tariff.21 Con Edison is attempting to graft onto the Gas Tariff a requirement that East Road must appear on the official City Map to be a “public right-of-way.” There is no such requirement in the Gas Tariff or the Commission regulations. To the contrary, as set forth above, the term “public right of way” is broader than just mapped streets and, by using that term the Gas Tariff clearly is not limited only to such mapped streets. Because East Road is a “public right-of-way,” if the upgraded East Road Line is deemed a service line, Con Edison must provide all the material and upgrade the East Road Line at no cost to HHC.
Finally, Con Edison has claimed that HHC needs to provide Con Edison with documentation demonstrating that HHC has the requisite property rights to allow Con Edison to install its facilities in East Road. This position is also contrary to the express terms of the Gas
Tariff. General Rule III.3(D)(2) states that Con Edison is not obligated to provide service to any applicant or customer which has neither: “(a) delivered to the Company satisfactory permanent easements or rights-of-way; nor (b) requested that the Company obtain such easements or rights- of-way, agreed to pay any costs which the Company incurs in obtaining them and (if required to do so by the Company) furnished reasonable security as to the performance of his/her agreement.”
As discussed above, Con Edison already has an existing easement agreement with RIOC. To the extent Con Edison needs to modify this agreement or needs a new agreement in order to render the service HHC has requested, HHC hereby requests that Con Edison obtain this agreement and
21 Surely Con Edison must have embraced this obvious interpretation of its Gas Tariff when it installed the existing 4” line, which it continues to own, operate and maintain. 13
HHC hereby agrees to reimburse Con Edison for its costs in obtaining the necessary agreement.
Because Coler Hospital has been a Con Edison customer for decades and will be a permanent customer going forward, HHC hereby submits that no security is needed to secure HHC’s
agreement to reimburse Con Edison.
3. The Upgrade of the East Road Line Was Not Necessitated by an Act or Omission of HHC
The Gas Tariff contains specific rules governing cost responsibility for the
replacement or reconstruction of an existing gas main or service line. These rules generally
provide that replacement or reconstruction costs are governed by the same rules applicable to
installation of new main or service line. There is, however, an exception to this general rule with
respect to service lines that are replaced or reconstructed due to an act or omission of the customer.
Where an act or an omission of the customer necessitates the replacement or reconstruction of a
service line, the customer bears the cost of replacement or reconstruction.22
As set forth below, the replacement or reconstruction of the existing gas line on
East Road is not due to an act or an omission of HHC. Instead, it is the demolition of the Goldwater
Campus, and the consequent shut-down of the steam plant, that has created the need for the East
Road Line to be replaced or reconstructed. Therefore, if the Commission determines that the
upgraded East Road Line is a service line, Con Edison cannot use General Rule III.3(F)(3) as an
excuse to avoid cost responsibility.
While there may be technical alternatives to new natural gas fired boilers at Coler
Hospital (for example, oil-fired boilers), there were several factors that led HHC to select natural
gas fired boilers as the preferred replacement to the steam plant, most notably being reliability and
22 Gas Tariff General Rule III.3(F)(3). 14
environmental concerns. Reliability is critical to a health care facility situated on an island like
Coler Hospital. Having natural gas delivered via a medium- or high-pressure gas line will ensure a reliable source of fuel for heating needs, especially during potential future flooding events.
Environmental concerns are also paramount, especially after the NYC Department of
Environmental Protection promulgated new rules phasing out the use of #4 and #6 fuel oil for heating boilers by 2030. Natural gas fired boilers therefore will provide Coler Hospital with a clean, reliable fuel to replace the decommissioned steam plant.
4. The Upgraded East Road Line is Not an “Excess Distribution Facility” Under the Gas Tariff
General Rule III.4(D) of the Gas Tariff defines Excess Distribution Facilities
(“EDF”) as facilities “in excess of those normally provided by the Company under the other provisions of this Schedule, or for the purpose of providing a service line in addition to that otherwise provided for supply to the Customer's premises.” EDFs are provided at the expense of the customer.
The upgraded East Road Line will not be an EDF. Rather, it will be the primary
gas line providing gas service to Coler Hospital. HHC is not demanding Con Edison pay for the
installation of an additional service line. Nor is HHC asking for service in excess of that normally
provided by Con Edison. Rather, HHC seeks an upgrade of the existing East Road Line. As
discussed herein, Con Edison is responsible under its Gas Tariff for bearing that cost.
HHC acknowledges that it did request, and Con Edison has agreed to provide, a
new service line extending off the upgraded East Road Line and entering Coler Hospital at the
southern perimeter of Coler Hospital. HHC understands and accepts that this EDF Line will be
considered an EDF, and HHC agrees to bear all costs associated with this second line that it is
required to bear pursuant to the Gas Tariff. It would be disingenuous for Con Edison to now
15
reclassify the upgraded East Road Line as an EDF to avoid the cost of upgrading the existing line,
particularly given that, in the past, Con Edison has itself recognized that the EDF provisions only apply to requests for additional points of service entry or for higher-capacity equipment than what
Con Edison normally provides.23
POINT II
THE GAS TARIFF REQUIRES CON EDISON TO OPERATE AND MAINTAIN THE UPGRADED EAST ROAD LINE
In addition to shirking cost responsibility for materials and installation, Con Edison
also has taken the position that, once installed, HHC would bear the responsibility for operating
and maintaining the upgraded East Road Line. Con Edison has agreed to perform these services
on behalf of HHC, subject to HHC agreeing to be responsible for the costs of operation and
maintenance. Con Edison’s position is apparently premised on its mistaken assumption that East
Road is a private right-of-way. For the reasons set forth above, East Road clearly is a public right-
of-way and therefore Con Edison’s basis for eluding operational and maintenance responsibility is
flawed.
Moreover, even assuming that East Road is a private right-of-way, Con Edison’s
position fails because it is not consistent with the express provisions of the Gas Tariff. Inspection,
operation and maintenance of gas mains and service lines is governed by General Rule III.3(F).
Subsection (1) of this General Rule requires Con Edison to “inspect, test, operate, maintain, replace
and reconstruct all mains, service lines, service connections and appurtenant facilities which it uses to supply gas to Customers” (emphasis added). There is no distinction drawn between
23 See, e.g., Case 02-E-0141, Consolidated Edison Company of New York, Inc. – Ordinary Tariff Filings, Con Edison Reply Comments (May 9, 2002) at 6. 16
facilities on a public right-of-way or private property. Thus, the Gas Tariff is clear that Con Edison is responsible for operating and maintaining the upgraded East Road Line.
Subsection (2) then addresses cost responsibility for operation and maintenance, and it begins by stating that Con Edison bears “the cost of inspecting, testing and operating all facilities….” Thus, regardless of ultimate resolution of any issue pertaining to the cost of upgrading the East Road Line in this petition, the Gas Tariff is explicit that, once installed, Con
Edison bears that cost of inspecting, testing and operating that Line.
Assuming the upgraded East Road Line is a main, General Rule III.3(F)(2) states that Con Edison bears the cost of “maintaining, replacing or reconstructing all main and appurtenant facilities, except as provided in General Rule III.3(C) above.” General Rule III.3(C) governs the surcharge Con Edison can impose on customers for mains that must be installed in addition to those required to be provided without charge under General Rule III.3(B). As discussed in Point I.1 above, if the upgraded East Road Line is considered a main, then Con Edison cannot impose a surcharge on HHC because Con Edison will realize significant additional revenues from
HHC. Therefore, if the upgraded East Road Line is a main, in accordance with General Rule
III.3(F)(2) Con Edison must bear the entire cost of operating and maintaining the upgraded East
Road Line.24
24 Moreover, even if the upgraded East Road Line does not pass the revenue test and a surcharge is applicable, the Gas Tariff specifically states that the surcharge amount includes an allowance for maintenance. General Rule III.3(C)(1)(a) provides that the surcharge will include “return, depreciation, taxes and maintenance….” Thus, even assuming HHC is required to pay a monthly surcharge, Con Edison will be compensated for maintenance costs on the upgraded East Road Line via this surcharge. Any attempt by Con Edison to impose additional maintenance costs on HHC related to the upgraded East Road Line would amount to double recovery.
17
Assuming the upgraded East Road Line is a service line, subsection (2) states that
Con Edison bears “the cost of maintaining, replacing or reconstructing the service line and
appurtenant facilities necessary to serve a Customer as if such Customer were an applicant for
service, unless an act or omission of the Customer necessitates the replacement or reconstruction.”
Furthermore, General Rule III.6(B) states that Con Edison “will replace or repair the service line
on private property to the building upon receiving notice of any leakage, damage or escape of gas.
The Company will bear the cost for this service in accordance with General Rule III 3 (F)….”
As explained in Point I.2, supra, for new applicants, the Gas Tariff requires Con
Edison to bear the material and installation cost of all service line located in the public right-of- way. If Con Edison needs to install service lines outside of the public right-of-way, then Con
Edison can impose a charge for material and installation costs.25 When an act or omission of the
customer necessitates replacement or reconstruction, “the Customer shall pay to the Company the cost of replacement or reconstruction.”
Notably, the rules cited above do not allow Con Edison to impose a charge for maintenance of a service line. The rules allow only for a charge to recover material and installation costs. Therefore, even if the Commission finds that the upgraded East Road Line is a service line and that HHC must pay for its installation, either because the upgraded East Road Line is on private property or because an act or omission of HHC requires replacement, Con Edison is still required by the Gas Tariff to maintain the upgraded East Road Line. Moreover, General Rule III.6(B) explicitly requires Con Edison to bear the cost of replacing or repairing a leaking service line, even if the service line is on private property.
25 Gas Tariff General Rule III.3(C)(4). 18
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to
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of
EXHIBIT A
the
price
Lessee’s
period
instamenL
ment
satisfaction
of
Day
price,
be penalties
three
sum
such
atd
school such
the such ment
or inspect
the school thereon.
cedures ing
pi
specifications,
time
tax hereof,
ties. of
ovided
lease less
date
Lessee’s
its
manner
cost
exempt
Prior
drawings
after
3.
upon chool
purchase
Normal
of school
shall
months
of
of
or
Lessee
or
of
on
or
than
any
Lessee
such
of
asid Lcssor’s
each
Certifld
to
payable
completion
in
an Lessor
in
appurtenahce
the
permaneiit
to
the
be
such
of
Lessee
or
financing,
bonds
or paragraph
balance
provided
three
appurtenance
equal
Th
Certified
appropriafiousneccssary
the
drawings
after
completion Allowances
such shall
the
and
orlease
respectively,
deemed
appurtenance
neit
appurtenance.
shall
discharge
the
on.
completion Public
having
flnahcing
and
months
specifications
Payment
school
semi-annual
of
denver
completion
due
Rent
the
finance
event
of
financing
herein
and
the
as
15
fully
notes,
Payment
and,
retirement itcluding
on
such
Facilities.
of
herein
jurisdiction
hereof
ot
Payment
shall
design,
allocable
and
to
alter
such to
account
of
in
such
by
with
to
paid
of
appurtenance
and
Statement
Sachool,
from
Lessor
schematic
such
Such
order
if
satisfaction
desir
payment each
make
thereof
installments
providei
for
completion,
complete
price
school
such shall
tax
Statement
Debt 3
at financing
of
school
Lessor
of
price
Day
In
thereto
each
Ptblic to
the
bonds
to
exempt
of
recommendations
Lessor
and
such
next
to
is
initiate
accordance
permit
Service
or
after
with
to
..w
and
after
similar
time
sets
such
paid
permit
or
shall
when
canstruct
Lessor
appurtenance
to Lessee
or
price
Facility
and
Rent
or
person
after
appurtenance
and
on
financing
with wprng
shall
th
of
respect
delivery
from
notes
Public
of
and
completion,
agents
in
be
for
construction
each
and
schematic
for
Lessor
Payment
public
last
the any may
delivery
of
payable
intaflments,
agree
with
respect
complete
and
Public other
all
issued
which
the
& as
Rent
Facility
previous
discharge
of
to
drawings
purchase
price
premiums
from
to
Public
or
completed
paragraph
at
period
facilities
through
to
to
the
each
Lessor sources
upon
in and
shall
Day
to comments
to
or
Facilities
tht,
purchase
Payment
complete
to
equal
the
all
of
a
finance depart
Lessor
within
Facili
at
work
Rent
from lump
piace
shall
such
such
such
pay be
each
such pro
and
sale
and
the
the
of
or
in
to of
to
a 2
5 .— . - of sale of its own bonds and notes and shall undertake such contruc ion, operation andmaintensnce. Lessor shall not discriminate against residents of the Leased Premises with respect to the provision of police, &e, sanitation, health protection, public education and other municipal services. In order to provide such services Lessor shall, except with respect to each school or appurtenance required to be purchased or leased by Lessor as provided above and except with respect to each Public Facility to be maintained and overated by Lessee as flrQyid in the General tevejovrnMt flan, lease each nob Facility now Lessee upon coin pIeuon 101 the sum oi one (1) dollar and Lessor thereafter—daring the teñn of this Lease shall have the right to operate allLdmailitain such facility in conformity herewith. Each Public Facility shall be deemed complete either when there shall have been issued by Lessee and delivered to Lessor a certificate of completion stating that such Public Facility has been completed in in accordance with all laws and regulations applicable to projects of Lessee and n accordance with the workiig drawings aubmifted to Lessor for inspection, as modified by Lessee to reflect such reccm mendaions of Lessor as Lessee may in its sole discretion accept, or when there shall have been issued by Lessor and delivered to Lessee Lessor’s temporary or permanent certificate of occupancy or any other certificate or license required to permit the occupancy or use of etch Public Facility, whichever event shall first occur.
4. Basic and Additional Rent. (a) Basic Ret. For each year of the term of this Lease, Lessee shall pay to Lessor, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the pay ment of public and private debts, at the office of the Lessor at the Municipal Building, Borough of Manhattan, City, County and State of New York, or at such place or to such agent as Lessor may from t4ne to time designate, as an annual tax equivalent payment and ground rent, a I3asic Rent which shall be equal to the aggregate of -‘I
46 same income class; (c) 25% for persons and families eligible to benefit from interest reduction payments pursuant to Section 236 of the National Housing Act; (d) 20% for persons and families eligible to occupy limited profit housing financed under Article 2 of the New York State Private Housing Finance Law; and (e) 25% for persons and families who can afford conventionally financed and fully tax paying units. Bedroom distributions in such housing will offer accommodations for a substantial number of families with one or more children and for hospitid employees. For purposes of the Lease, Subsidized Housing includes all units occupied by any person or family in categories (a), (b) and (e) hereof, Middle Income Housing includes all units occupied by any person or family in categoty (d) hereof and Conventionally Financed Housing includes all remaining housing units. The public facilities (for purposes of the Lease, the Public Facili ties) are as follows: A school or schools for grades K through Sto serve apprqximately 2000 children of IslAnd residents; a library fadlit-; a comprehensive ystem of community facilities including comnwnity r rooms, daycare centers for Island children, facilities far the elderly, two swimming pools and other recreation facWties; a fire station and police office; public open spaces including a Town Square, a Town Harbor and a glass-enclosed shopping arcade; a public ?treet system; a pedestrian circulation system of pedestrian and bicycle paths, including a Waterfront Promenade suitable for use by emer gency vehicles; a mini-transit system; a garage for approximately 2500 cars; utility facilities including a water main, facilities for the collection, treatment and disposition of jqjd ana soirn wastes, gas, telephone and eleetho lines; arn, Open Spaces saaB to be. deeiopea as parks (subject to uelays atthbutablè to Lessor’s activities. in eon necifon wi&the construction of water tunnel #3) with the lanthnarb I’ islenfffied below. stabilized. Public fadiljties.wifl also include a new eJevator to the Queensborougb Bridge II the Corpprtion•determines in its discretion that such elevator is feasible, and an Urban. Ecology Center and rehabifltaflon of the identified .landiiiarh, jf such, Center and rehabilitation can-be financed other than with.finandng fromthe Corporation. commercial the and residents be Area space1 vided principal related will a of Memorial will pctlestrian.circulation North three pool, the gate, transit the of Chapel facilities,
utility
the
the maintained
garage
length City
The Access The The 2. The The The be
be public
and the
to
by
acres
dwelling and
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acct’s encouraged
located system of Land
be
as complex, Town
South North Open.
public
the library,
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related and including
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of
the and
South
open
facilities
a
buiW
will
at
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the
whole,
Use. The
roads.,
Good persons
within
Space the
at Center and
units, Town
the
Town
Space
streets
units,
spaces
be
Island
the Open at
Town
conunercial
the
public Corporation
to
north
a
The
operated
on
provided the
as
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walkways
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including
park
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areas,
including
and will
Areas
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working well
the and
with for will
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are:
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some North of residents
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contain cars
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the be
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mini-transit
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paths.
maintain
within
of Lighthouse
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be
for Town units
developed
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EXHIBIT
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such
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the
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S -
EXHIBIT B
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EXHIBIT C
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EXHIBIT D
Cc: Dooley, Robert; Pearce, David Subject: FW: EDFcost for Coler Hospital Gas Service
Vadim, please confirm that all gas appliances will be taking firm gas service under Sc 2 of the current PSC gas tariff.
http://coned.com/rates/gas main.asp
Regards,
David B. Pearce
Manager- ManhalEan Energy Services
Con Edison Company of New York. Inc.
4 Irving Place. NY. NY 10003
212-460-3075
From: Pearce, David Sent: Thursday, July 05, 2012 8:51 AM To: VRaskin(Thdasny.org Cc: mlvonsfulcrummail.com; ‘skretzmer(ä3fulcrummail.com’;‘[email protected]’;vaaIatrofulcrummail.com’; Riviello, Thomas; Femia, Thomas; Pearce, David; Stewart, Kervin Subject: RE: EDFcost for Coler Hospital Gas Service
Vadim, as discussed during our conference call on 6-28-12, con Edison has revised the cost estimate based on 45 trench feet instead of 75 trench feet.
Installation Cost $22,786.97
Maintenance cost
• Option 1: Ten annual payments of $2,217.63
• Option 2: Lumpsum payment of $22,176.33
7 Please confirm that Coler Hospital would liketo proceed EDFgas service, in addition to the service upgrade to the existing gas service.
Ifyou agree to proceed with the EDFservice, please also indicate which payment option you choose.
Regards,
David B. Pearce
Manager- Manhattan Energy Services
Con Edison Company of New York, Inc.
4 Irving Place. NY, NY 10003
212-460-3075
From: Pearce, David Sent: Tuesday, June 26, 2012 1:38 PM To: ‘VRaskin(adasny.org’;Stewart, Kewin Cc: ‘mlyons©fulcrummail.com’;‘[email protected]’; ‘RDooIevdasny.orn’; ‘vpaIatrofuIcrummaiI.com’; Riviello, Thomas; Femia, Thomas Subject: Re: EDFcost for Coler Hospital
Vadim, Iwillsetup a conference call this week to discuss.
Note that the cost includes the meters, regulators and fittings in addition to the cost of the pipe. Consequently even if we only had to do 5 feet of pipe there is a certain base co5t that you willsee.
From: Raskin, Vadim [mailto:VRaskindasny.orpj Sent: Tuesday, June 26, 2012 12:22 PM To: Stewart, Kervin Cc: ‘[email protected]’
B Kervin Thank you for the reply.
Iam not questioning validity of charges for the EDFbut rather an amount of the installation cost. 45 LFof pipe should not cost 530Kwhen the work is done at the same time as other work. My estimate for this work is somewhere between 510Kto 512K.We will have no issues paying the maintenance cost as proposed.
Ibelieve we need to meet and negotiate this matter. We are definitely interested in pursuing this approach. Vadim Sent from a BlackBerrywireless device
From: Stewart, Kervin[mailto:STEWARTKERconed.comJ Sent: Tuesday, June 26, 2012 11:43 AM To: Raskin, Vadim Cc: mlyons(dfulcrummail.com
Good Morning Vadim,
We will remove the taxes since Coler Hospital is tax exempt.
To answer your second question see the attached pdf document. The dashed red line represents the second (EDF)service and the dashed blue line represents the upgraded service pipe to the existing point of entry (POE).
As you can see the red line is the shortest distance for the EDFgas service. From a previous email we received 29,100 cfh (which is the majority of the load) will be at the existing POE,therefore Coned will still have to replace the existing service. The second service requires additional excavation and will not offer any benefit to the company. For an EDFservice, the customer..J is responsible for all the cost associated with the installation of that service plus the maintenance cost.
cC157nYzOt# Gas Engineering
(718)839-1817
(917)534-4419 (fax)
From: Raskin,Vadim[maiIto:VRaskin(ädasny.org) Sent: Tuesday, June 26, 2012 9:55 AM To: Pearce, David
9 Cc: ‘mlyons©fulcrummail.com’;[email protected]; Dooley, Robert; Stewart, Kervin;‘vgalatro©fulcrummail.com’ Subject: Re: EDFcost for Coler Hospital
David First of all, DASNYand HHCare tax exempt so taxes should not be included. Secondly, the proposed installation price only makes sense ifthese 45’ were installed as a separate job. But since you will be digging for the rest of it at the same time, shouldn’t the cost reflect it?
Idon’t mean to be a pain but this is a public money we are spending so Ineed to be diligent. Thank you for working with me on this Vadim Sent from a BlackBerrywireless device
From: Pearce, David [mailto:[email protected]] Sent: Monday,June 25, 2012 10:15 PM —‘ To: Raskin, Vadim Cc: Mark Lyons
Vadim,
Con Edison has completed a revised estimate based on 45 trench feet instead of 75 trench feet.
Installation Cost $34,044.34 (inclusive of sales tax @8.875%)
Maintenance cost
• Option 1: Ten annual payments of $3,339.23 (inclusiveof sales tax @ 8.875%)
• Option 2: Lumpsum payment of $33,490.33 (inclusive of sales tax @8.875%)
Please advise ifyou would liketo move forward with the EDFgas service.
Regards,
David B. Pearce
Manager- Manhattan Energy Services
Con Edison Company of New York. Inc.
4 Irving Place, NY. NY 10003
10 212-460-3075
From: VinnieGalatro [mailto:vpalatro(äfulcrummail.com] Sent: Thursday, June 21, 2012 9:34 AM To: Pearce, David Cc: Raskin, Vadim; Mark Lyons; Stephen Kretzmer; Dooley, Robert; Stewart, KeMn Subject: Re: EDPcost for Coler Hospital
David, That configuration is correct.
Vinnie
On Wed, Jun 20, 2012 at 1:27 PM, Pearce, David
Vadim, willsend you the revised estimate as soon as I receive it.
Please confirm that your proposed configuration is as follows
- Three boilers on the EDFservice (two boilers in service, one stand-by) 12,000 cfh
- Sixboilers + kitchen load + domestic hot water on the upgraded service (four boilers in service, two standby). 29,100 cfh.
Regards.
David B. Pearce
Manager- Manhattan Energy Services
Con Edison Company of New York, Inc.
4 Irving Placc. NY, NY 10003
212-460-3075
11 ______
From: Raskin, Vadim [mailto:VRaskindasny.org] - - Sent: Wednesday, June 20, 2012 1:19 PM To: Pearce, David Cc: vcialatrofulcrummaiI.com; Mark Lyons; Stephen Kretzmer; Dooley, Robert; Stewart, Kervin
Subject: RE: EDF cost for Coler Hospital
Thank you, David
We will need only a few feet of the Con Ed pipe to the EDFPOEand all of it in the grassy area, not sidewalks or anything hard. I don’t think this should be expensive.
Iam sure HHCwill not object to the extra metering cost if everything else is reasonable enough and we can prove that savings from not having to run a pipe thru the hospital exceeds extra money for EDF.
Vadim Raskin Project Manager DASNY Jacobi Medical Center 718-918-3777 fax: 718-975-5643
1 IIyoti Confldciii alliv Notice his e hal I co,nni,,nieai ion andaoyattach‘hefts may coil Liin cool dent al anti priviieged in brmation Ibr the use of the des’goaled reelpienl(s) named above are not the intended recipient, (iu ire hereby notilied that you have received this coiilnhiui,eation in error and that ally review, disclosure, dissemination, distribution or eopvioa of it or its cottients is pi ishiNied If von have received this coinnit’nicatioisto error please notift inc immediately i,y replying to this message and delete it fioni yoor computer Thanh you
Please consider the environment before printing this emaiL
From: Pearce, David [mailto:[email protected]] Sent: Tuesday, June 19, 2012 8:46 PM To: Pearce, David Cc: Raskin,Vadim;vgalatro©fulcrummail.com;MarkLyons;Stephen Kretzmer;Dooley,Robert; Stewart, Kervin Subject: Re: EDFcost for ColerHospital
Clarification re the color of lines
- The solid blue line represents the existing 8 inch main
- the dashed blue line represents the proposed new 8 inch main extension to upgrade the existing POE
- the dashed green line is the distarme from the existing curve valve to the EDF POE used to prepare he estimate provided earlier today.
- the dashed red line represents the distance to be used for the revised estimate.
Regards,
David B. Pearce 12 On Jun 19, 2012, at 4:35 PM, “Pearce, Davidt’
Vadim, please take a look at the attached diagram. We prepared the estimate based on the distance from the existing valve to the new POElocation.
We will re-calculate the estimate as a tap from the new 8” pipe.
Please confirm that your proposed configuration is as follows
- Three boilers on the EDFservice (two boilers in service, one stand-by) 12,000 cfh —
- Sixboilers + kitchen load + domestic hot water on the upgraded service (four boilers in service, two — standby). 29,100 cfh.
Regards,
David B. Pearce
Manager- Manhattan Energy Services
Con Edison Company of New York. Inc.
4 Irving Place, NY. NY 10003
212-460-3075
From: Raskin, Vadim rmailto:vRaskin©dasny.orgl Sent: Tuesday, June 19, 2012 3:12 PM To: Pearce, David Cc: vQalatrofuIcrummail.com; MarkLyons; Stephen Kretzmer; Dooley, Robert Subject: RE: EDFcost for Coler Hospital
How did they come up with this number?
The new 8” pipe will have to cross the road and go towards the BBuildingPOEanyway. Allwe are asking is a “T”off the main run and then you can continue with a 6” run.
$40Kseems a bit excessive to me. Can we negotiate? We are very interested in this idea but financially it doesn’t make sense because we still need to buy all the meters and accessories.
Thanks
13 Vadim Raskin Project Manager DASNY Jacobi Medical Center 718-918-3777 fax: 718-975-5643
ideii I i Coil ted ty Notice TI is e—mailcuminun cation and any attachments nay coilLainconidenti aI arid priviicged inibimation fisttimeuse of the designated recipientls) named above If you arc noElhe intended recipient, you arc hereby notified that you have rece ved ibis conmisiuncatiou in error amidthat armyrevjew, lost,re, ssemn‘‘tam disc di ion,disttihution or copvitie of it or its contents is prohibited If you have receised this corurimun cation in error. please nutiR mc i noted iately by replying to ibis message and delete it from your computer Thank yoti
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From: Pearce, David[mailto:[email protected]] Sent: Tuesday, June ig, 2012 2:58 PM To: Raskin, Vadim Cc: [email protected]; MarkLyons; Stephen Kretzmer; Dooley, Robert Subject: RE: EDFcost for Coler Hospital
The payment covers the cost of construction to bring the service to your POE.
Youwillstill need to install the meter station, enclosure, etc. as you would for a non-EDFservice.
From: Raskin, Vadim Fmailto:VRaskindasnv.orp1 Sent: Tuesday, June 19, 2012 2:53 PM To: Pearce, David Cc: VinnieGalatro ([email protected]); Mark Lyons; Stephen Kremer; Dooley, Robert Subject: RE: EDFcost for Coler Hospital
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David
Does $40K installation cost include cost of all materials and equipment (meters, enclosures, etc)?
Please let me know.
Thanks
Vadim Raskin Project Manager DASNY
14 Jacobi Medical Center 718-918-3777 fax: 718-975-5643
Conrdenti aIity Notice Tiiis c-in a‘Icomm ott cation and any attaehm enLs nay coma ii confidential and privileged inIhi mation Ilir the nsa ol’the designated recipient(s) named above liyou are not the intended recipient, you are hereby notified thai you have received this communication in error and that any review,
d i discositre, isseini nat iii, distrihuti on or copy Jig oCit or its conten Lsis prohi iiited ICvolt have received this contin onicanon in error, please noti me iii ned iately h’ repl ing In this niessage and delete it 1mm your computer Thank yoti.
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From: Pearce, David[mailto:PEARCED©coned.com] Sent: Tuesday, June 19, 2012 1:53 PM To: Raskin,Vadim Cc: Pearce, David Subject: FW:EDPcost for ColerHospital
Vadim, please see attached the estimate for an EDFgas service at the intersection of main street and central road (by the roundabout).
Please advise if you would like to proceed with this option?
Regards,
David B. Pearce
Manager- Manhattan Energy Services
Con Edison Company of New York. Inc.
4 In’ing Place, NY. NY 10003
212-460-3075
From: Stewart, Kervin Sent: Thursday, June 14, 2012 1:14 PM To: Pearce, David Cc: Riviello,Thomas; Femia,Thomas Subject: FDFcost for ColerHospital
David,
I attached a copy of the cost for the EDFservice at Coler Hospital. We estimated the length of the new service to be 75 feet. The meter was sized for one-third of the total load as discussed from the last field meet. The customer has two options:
1) A fist year payment of $ 45,337.33 and an annual maintenance fee of $3,979.90 for the lifetime of the service OR
2) A onetime payment of $84,335.42 which includes the installation of the service and 10 years of maintenance charge.
15 <<900MainStreet - 512-90957-M- Cost Estimate.pdf’>
Can)r Otewa#
Gas Engineering
(718)839-1817
(917)534-4419 (fax)
( Vincent Galatro PiECMVP F3EAPCPN4P Vice President The Fulcrum Group 6 I Broadway Suite 1605 New York. NY 10006 P 203-253-7997 F 888-890-7443 Vincent (ialatro PIECMVP REAP CPMP Vice President 1 he Fulcrum Group 61 Broadway Suite 1605 New York. NY 10006 P 203-253-7997 F 888-890-7443 Vincent Galatro PE CMVP BEAP CPMP 16 Vice President The Fulcrum Group 61 Broadway Suite 1605 New York, NY 10006 p 203-253-7997 F 888-890-7443 Vincent Galatro PE CMVP BEAP CPMP Vice President The Fulcrum Group 61 Broadway Suite 1605 New York, NY 10006 P 203-253-7997 F 888-890-7443 17 EXHIBIT E Law Department Consolidated Edison Company Kern Kirschbaum of New York, Inc. C 4 Irving Place C New York, NY 10003-0987 conEdison (212) 460-1077 a conEdisan,mc,compaIw [email protected] September 25, 2012 Re: Gas Service Upgrade to Coler Hospital Dear Mr. Conway: Consolidated Edison Company of New York, Inc. (“Con Edison” or the “Company”) is in receipt of your August 20, 2012 Memorandum (“Memo”) regarding upgrading gas service to Coler Hospital on Roosevelt Island. As mentioned in the Memo, Coler Hospital has approached the Company regarding a new or upgraded gas service for space heating. After determining that the streets adjacent to Coler Hospital are not public, mapped streets, the Company informed the Hospital that the Hospital would be required to excavate and install the upgraded gas facilities on the private, unmapped roads leading to the Hospital. This determination is consistent with the Company’s practice in other private streets on Roosevelt Island, as well as elsewhere in its service territory where streets remain private. In other words, the Company’s cost obligations to install and maintain its facilities extend only to those facilities located within the public rights-of- way. The Memo correctly points out that the Coler Hospital is in Con Edison’s franchise area, i. c, that the Company has the authority to provide gas service and, in fact, currently does provide such service to various customers on Roosevelt Island. However, as noted above, the Company’s right to construct, install, and maintain gas facilities exists only in public rights-of-way where the governmental authority having jurisdiction will permit the Company to install and maintain facilities (See Leaf 28 of the Schedule for Gas Service, P.S.C. No. 9, the “Tariff’). In this sense, the term “franchise” is referring to streets that are mapped and open New York City public rights-of-way where the Company has the authority to install and maintain its facilities, not to Con Edison’s franchise area. Therefore, consistent with past practice on Roosevelt Island and other customers that are served from private streets, the customer is required to provide necessary easements, acceptable to the Company, and to pay the costs of excavating and installing the upgraded gas main and service on the private street leading to the Hospital. Please contact me if you have any questions. Very truly yours, Kern Kirschbaum EXHIBIT F Method of Service Name: Company/Organization: Mailing Address: Company/Organization you represent, if different from above: E-Mail Address: Case/Matter Number: Request Type New Petition/Application - I am filing a new petition/application which requires action by the Commission. Service List request – I request to be on the service list for the matter/case. Other – Type of request ______ Service Information (Select one option below) Electronic Service and Waiver – Consent in Case/Matter Identified Above As duly authorized by the Participant identified above that I represent, I knowingly waive on behalf of that Participant any right under PSL §23(1) to be served personally or by regular mail with Commission orders that affect that Participant and will receive all orders by electronic means in the above Case. If participating individually, I knowingly waive any PSL §23(1) right to service of orders personally or by regular mail and will receive all orders by electronic means in the above Case. This consent remains in effect until revoked. Electronic Service and Waiver – Global Consent in All Cases/Matters As duly authorized by the Participant identified above that I represent, I knowingly waive on behalf of that Participant any right under PSL §23(1) to be served personally or by regular mail with Commission orders that affect that Participant and will receive all orders by electronic means in all Cases where it participates. If participating individually, I knowingly waive any PSL §23(1) right to service of orders personally or by regular mail, and will receive all orders by electronic means in all Cases where I participate. This consent remains in effect until revoked. Note: Due to the design of our system, this consent attaches to the individual named here and not to the party that may be represented by that individual. Therefore, individuals who represent multiple parties should be aware that a global consent will affect all matters in which they appear on behalf of any party. I do not consent to receive orders electronically E-Mail Preference (Select one option below) – For Case specific request E-Mail notifications include a link to filed and issued documents. Notify me of Commission Issued Documents in this case/matter. Notify me of Both Commission Issued Documents and Filings in this case/matter Do not send me any notifications of filed or issued documents Submitted by: Date: