Court of Appeals of Indiana | Opinion 93A02-1607-EX-1644 | June 20, 2017 Page 1 of 21

ATTORNEYS FOR APPELLANT

Todd A. Richardson

Jennifer W. Terry

Joseph P. Rompala

Lewis Kappes, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Brian J. Paul

Daniel E. Pulliam

Faegre Baker Daniels LLP

Indianapolis, Indiana

Claudia J. Earls

Christopher C. Earle

NiSource Corporate Services-Legal

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

NIPSCO Industrial Group,

Appellant-Intervenor,

v.

Northern Indiana Public Service 

Company,

Appellee-Petitioner.

June 20, 2017

Court of Appeals Case No.

93A02-1607-EX-1644

Appeal from the 

Indiana Utility Regulatory 

Commission

The Honorable

Lorraine L. Seyfried, 

Chief Administrative Law Judge

The Honorable Carol A. Stephan, 

Chair 

The Honorable James F. Huston, 

Commissioner

The Honorable David E. Ziegner, 

Commissioner

Cause No.

44403-TDSIC-4
Court of Appeals of Indiana | Opinion 93A02-1607-EX-1644 | June 20, 2017 Page 2 of 21

Kirsch, Judge.

[1] NIPSCO Industrial Group (“Industrial Group”) appeals the decision of the 

Indiana Utility Regulatory Commission (“the Commission”) that approved 

Northern Indiana Public Service Company’s (“NIPSCO”) petition for a plan 

update, pursuant to Indiana Code section 8-1-39-9, to its previously 

Commission-approved 7-year plan. Industrial Group raises two issues, which 

we consolidate and restate as: whether the Commission erred in approving 

NIPSCO’s petition for a plan update, finding certain categories of 

improvements as eligible to be treated as transmission, distribution, and storage 

system improvement charges (“TDSIC”) because the Industrial Group claims 

that the projects within the categories were not identified with enough 

specificity.

[2] We affirm. 

Facts and Procedural History

[3] NIPSCO is a public electric and gas utility that services customers in northern 

Indiana and owns, operates, manages, and controls plants and equipment in 

Indiana used for the generation, transmission, distribution, and furnishing of 

gas utility service to the public. NIPSCO provides gas utility service to more 

than 821,000 residential, commercial, and industrial customers in northern 

Indiana. Industrial Group is a group comprised of some of NIPSCO’s largest 

industrial customers.
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[4] The rates a utility charges to its customers are traditionally adjusted through 

periodic rate cases, which are expensive, time consuming, and comprehensive. 

Another way to set rates is through tracker proceedings, which allow smaller 

increases for specific projects and costs between general rate case proceedings. 

The General Assembly has authorized several trackers, including a fuel charge 

tracker, a tracker for qualified pollution control projects under construction, a 

tracker for federally mandated costs, and a tracker for clean energy projects. In 

2013, the General Assembly enacted Indiana Code chapter 8-1-39, which 

allows a utility to petition for a tracker for certain proposed new or replacement 

electric or gas transmission, distribution, or storage projects. The statute is 

referred to as the “TDSIC” statute. 

[5] Under the TDSIC statute, the utility seeks approval of a 7-year plan, pursuant 

to Indiana Code section 8-1-39-10 (“Section 10”), that designates improvements 

to transmission, distribution, and storage systems. If the Commission 

determines that the 7-year plan is reasonable, reflects the best estimate of the 

costs of the improvements, demonstrates that the improvements are required for 

public convenience and necessity, and shows that the eligible improvements are 

cost-justified, then the Commission approves the plan and designates the 

improvements as eligible for TDSIC treatment. Ind. Code § 8-1-39-10(b). After 

the 7-year plan is approved, periodic tracker proceedings may occur, pursuant 

to Indiana Code section 8-1-39-9 (“Section 9”), to allow rate adjustments for 

specific projects as they are completed. These petitions should include an 

update of the 7-year plan, and any costs that exceed the approved expenditures
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and TDSIC costs require “specific justification by the public utility and specific 

approval by the [C]ommission before being authorized for recovery in customer 

rates.” Ind. Code § 8-1-39-9(f). 

[6] On October 3, 2013, NIPSCO filed a petition under Section 10 seeking 

approval of its 7-year plan for its gas system, which included improvement 

projects to transmission, distribution, and storage systems. By order, the 

Commission approved the 7-year plan and found that NIPSCO’s cost estimates 

for the 7-year plan were reasonable. Industrial Group appealed the 

Commission’s order approving the 7-year plan, but on Industrial Group’s own 

motion, the appeal was dismissed with prejudice on September 23, 2014. 

[7] On August 28, 2014, NIPSCO filed its first tracker petition for its gas system, 

which sought approval of updates to the 7-year plan, including actual and 

proposed capital expenditures and TDSIC costs that exceeded the amounts 

approved in the original 7-year plan. NIPSCO’s petition projected the 

estimated capital costs for the 7-year plan to be $862.2 million, which was an 

increase of $149.1 million over the original plan. This tracker petition was 

approved by the Commission, including NIPSCO’s proposed methodology for 

calculating the TDSIC adjustment. 

[8] NIPSCO filed its second tracker petition (“TDSIC-2”) on February 27, 2015. 

Before the Commission issued an order on TDSIC-2, a panel of this court 

issued a decision in the appeal of NIPSCO’s electric TDSIC case 7-year plan 

(“the Electric Decision”), in which the Commission’s order was reversed in 
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part, affirmed in part, and remanded to the Commission. See NIPSCO Indus. 

Grp. v. N. Ind. Pub. Serv. Co., 31 N.E.3d 1 (Ind. Ct. App. 2015). This court held 

that NIPSCO’s 7-year plan for its electric TDSIC lacked sufficient detail for the 

Commission to determine whether “NIPSCO’s plan for years two through 

seven was ‘reasonable’ or to determine a ‘best estimate of the cost’ of the 

improvements.” Id. at 8. The court also found that it was impermissible for the 

Commission to establish a “‘presumption of eligibility’ regarding the undefined 

projects for years two through seven” because such a presumption 

“inappropriately shifts the burden of showing a project’s eligibility for TDSIC 

treatment from NIPSCO.” Id. at 9. After the Electric Decision was issued,

because it impacted the TDSIC filings in its gas systems, NIPSCO moved to 

dismiss its TDSIC-2 petition in its gas system with the understanding that it 

would request to recover the expenditures and costs covered in TDSIC-2 

through its third tracker petition (“TDSIC-3”), and the trial court dismissed 

TDSIC-2 without prejudice.

[9] On August 31, 2015, NIPSCO filed its TDSIC-3, which again sought approval 

of its updated 7-year plan and included actual and proposed estimated capital 

expenditures and TDSIC costs that exceeded those amounts approved in 

TDSIC-1. In TDSIC-3, NIPSCO sought to provide more specificity with 

respect to the projects contained in the project groups in response to the Electric 

Decision. In its TDSIC-3 order approving the petition, the Commission found 

that, based on the Electric Decision in Nipsco Industrial Group, approval of a 7-

year plan requires a finding that the proposed projects in the plan contain 
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enough detail for the Commission to determine that the projects meet the 

definition of eligible improvements. Appellant’s App. at 159. The Commission 

also recognized that TDSIC-3 presented a “unique situation” because although 

the Commission had previously approved NIPSCO’s 7-year plan, the Electric 

Decision showed that such approval was not proper under the statute. Id. 

Thus, the Commission found that, while it was making a determination under 

Section 9, it was required to confirm that NIPSCO had shown sufficient 

information in its petition to find the projects contained in TDSIC-3 to be 

eligible improvements. Id. 

[10] In its order, the Commission also interpreted the statutory term “update” to 

require NIPSCO to explain and justify changes to the cost estimates for eligible 

improvements that the Commission had previously approved. Id. at 160. The 

Commission found that, in light of the Electric Decision, it had to reevaluate its 

presumption that projects proposed for years three through seven of the 7-year 

plan could be presumed eligible, and it determined that NIPSCO had presented 

sufficient detail regarding project descriptions and cost estimates for those years 

concerning a majority of the projects and projects groups. Id. at 163. In 

TDSIC-3, NIPSCO sought to provide more specificity with respect to the 

projects contained in the project groups in response to the Electric Decision. In 

the TDSIC-3 order, the Commission found that NIPSCO had provided 

ascertainable planning criteria for identifying and selecting specific 

improvements that NIPSCO will undertake in the project groups. Id. at 164. 

The Commission also determined that NIPSCO had provided sufficient detail 
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and explanation for the changes in estimated cost of the eligible improvements 

included in the updated 7-year plan, had sufficiently demonstrated that public 

convenience and necessity required or would require the eligible improvements, 

and had shown that the incremental benefits of the plan justified the costs. Id. 

at 170-72. The TDSIC-3 order approved the use of “project groups,” which 

included some “identified” projects and other “yet to be identified” projects and 

found that NIPSCO “provided ascertainable planning criteria for identifying 

and selecting the specific improvements that it will undertake in these project 

groups.” Id. at 163-64. Industrial Group did not appeal the TDSIC-3 order.

[11] NIPSCO filed its fourth tracker petition (“TDSIC-4”) on February 29, 2016, 

which was before the Commission issued its order on the TDSIC-3 petition. In 

the TDSIC-4 petition, NIPSCO sought approval of an updated 7-year plan, 

which again included actual and proposed estimated capital expenditures and 

TDSIC costs that exceeded the amounts included in the TDSIC-3 petition. The 

TDSIC-4 petition provided greater detail than the previous petitions, including 

project estimates, summary of unit cost estimates, multiple unit project lists and 

supporting documentation, and project change requests. Id. at 8. 

[12] The updated plan included changes made to projects slated for 2015 and 2016 

and updated actual costs associated with projects across the entire plan. 

Specifically, the updated 7-year plan included different types of projects in 

various categories with both single unit and multiple unit projects. The 

multiple unit projects were described generally as a category of smaller projects 

that NIPSCO cannot anticipate exactly. Tr. at 25. As an example, NIPSCO 
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has thousands of pipes that are annually inspected, and when leaks are 

discovered, they may need unexpected replacement. Id. Although it is not 

known which exact projects will need replacement, based on history, it is 

known that a certain percentage of the projects will fail each year. Id. The 

multiple unit projects were listed in three ways: (1) a specified asset list, which 

included the specific assets to be addressed each year; (2) a list of inspection and 

remediation projects; and (3) other projects that were prioritized through 

alternative means. Appellant’s App. at 17. An asset register was included as an 

appendix, which listed all projects that were subject to inspection and could be 

addressed in the next few years. Tr. at 48. The list of inspection and 

remediation projects were prioritized based on United States Department of 

Transportation (“DOT”)-mandated annual inspections. Appellant’s App. at 17. 

Based on the results of an inspection, NIPSCO would schedule actions to 

mitigate risk, which could include replacement. Id. TDSIC-4 contained greater

detail than TDSIC-3 in its description of the project groups and was consistent 

with, and more detailed than, the ascertainable planning criteria that had been 

previously approved by the Commission in TDSIC-3. Non-Confidential Ex. Vol. 

II at 89-90. 

[13] The Commission issued an order approving the TDSIC-4 petition on June 22, 

2016. In the TDSIC-4 order, the Commission reasoned that, because the 

TDSIC statute does not discuss what may be included in a Section 9 update and 

what review was required, it would follow its findings in TDSIC-3 that Section 

9 updates “should include a discussion of any changes in an eligible 
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improvement’s best estimate of cost, necessity, and associated incremental 

benefits upon which the Commission based its determination to approve [the] 

proposed Plan as reasonable.” Appellant’s App. at 31. The Commission 

acknowledged that the updated plan reclassified and identified additional 

projects that fit into the project groups that had been approved in TDSIC-3 as 

having sufficiently ascertainable planning criteria. Id. at 33. The Commission 

determined that NIPSCO’s project groups and multiple unit project categories 

were supported by sufficient ascertainable planning criteria for identifying and 

selecting the specific improvements to be undertaken and the reclassification 

and further identification of projects or asset replacements within the project 

groups was reasonable and consistent with the TDSIC-3 order. Id. at 33-34. In 

the TDSIC-4 order, the Commission approved the updated 7-year plan and the 

cost increases contained in the petition. Industrial Group now appeals.

Discussion and Decision

[14] Industrial Group argues that the Commission erred in approving NIPSCO’s 

TDSIC-4 petition. Industrial Group contends that the Commission erroneously 

approved the multiple unit categories in NIPSCO’s updated 7-year plan because 

the improvements were not identified with particularity and because NIPSCO 

sought to identify specific projects year by year through tracker updates 

pursuant to Section 9 instead of identifying the projects in the 7-year plan. 

Industrial Group also claims that the Commission incorrectly granted a 

designation of eligibility to the multiple unit project categories, even though the 

specific improvements in these categories would not be identified until later 
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filings under Section 9. Industrial Group further asserts that the Commission’s 

order, which approved a $20 million increase in costs, erroneously allowed 

NIPSCO to expand the scope of its 7-year plan to add projects that were not 

identified in the original 7-year plan filed pursuant to Section 10.

[15] The Commission was created by the General Assembly primarily as a factfinding body with the technical expertise to administer the regulatory scheme 

devised by the legislature. N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 

1012, 1015 (Ind. 2009); Ind. Code § 8-1-1-5. The Commission’s assignment is 

to ensure that public utilities provide constant, reliable, and efficient service to 

the citizens of Indiana. Nipsco Indus. Grp., 31 N.E.3d at 5. The Commission 

only can exercise power conferred upon it by statute. Id. “Its authority also 

‘includes implicit powers necessary to effectuate the statutory regulatory 

scheme.’” Id. (quoting United States Gypsum, Inc. v. Ind. Gas Co., 735 N.E.2d 

790, 795 (Ind. 2000)). Any doubts regarding the Commission’s statutory 

authority must be resolved against the existence of such authority. U.S. Steel 

Corp. v. N. Ind. Pub. Serv. Co., 951 N.E.2d 542, 550 (Ind. Ct. App. 2011), trans. 

denied. 

[16] An order of the Commission is subject to appellate review to determine whether 

it is supported by specific findings of fact and by sufficient evidence, as well as 

to determine whether the order is contrary to law. Nipsco Indus. Grp., 31 N.E.3d 

at 5. On matters within its jurisdiction, the Commission enjoys wide discretion. 

Id. at 5-6. The Commission’s findings and decision will not be overridden just 

because this court might reach a contrary opinion on the same evidence. Id. at 
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6. On appeal, we first review the entire record to determine whether there is 

substantial evidence to support the Commission’s findings of basic fact. U.S. 

Steel Corp., 951 N.E.2d at 551. Next, we review ultimate facts, or mixed 

questions of fact and law, for their reasonableness with the amount of deference 

owed depending on whether the issue falls or does not fall within the 

Commission’s expertise. Id. Finally, legal propositions are reviewed for their 

correctness. Id. More precisely, “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.” Id.

[17] Under Section 10, a utility shall petition the Commission for approval of its 7-

year plan for eligible transmission, distribution, and storage improvements. 

Additionally, under Section 10, if the Commission approves the 7-year plan, it 

designates the eligible improvements included in the 7-year plan as eligible for 

TDSIC treatment. Ind. Code § 8-1-39-10. Indiana Code section 8-1-39-2 states 

that eligible transmission, distribution, and storage system improvements are 

defined as:

new or replacement electric or gas transmission, distribution, or 

storage utility projects that . . . either were (A) designated in the 

public utility’s seven (7) year plan and approved by the 

[C]omission under [S]ection 10 of this chapter as eligible for 

TDSIC treatment; or (B) approved as a targeted economic 

development project under section 11 of this chapter. 
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Ind. Code § 8-1-39-2(3). Therefore, under Indiana Code section 8-2-39-2(3), if a 

project was not designated in the utility’s 7-year plan and approved under 

section 10, or approved under Section 11, then the project is not an eligible 

improvement for purposes of TDSIC rate treatment.

[18] In Nipsco Industrial Group, 31 N.E.3d 1, a panel of this court examined 

NIPSCO’s 7-year electric plan to ascertain if it identified proposed projects for 

the projected seven years with sufficient specificity. After reviewing the plan, 

the court found that NIPSCO provided sufficient details for the projects for year 

one of the plan, including the type of improvement, reason for the 

improvement, the project title and location, and a project cost; however, the 

same detailed information was not included for projects in years two through 

seven, and only expected annual total spends for major project categories were

provided. 31 N.E.3d at 7. This court concluded that the Commission erred in 

approving NIPSCO’s 7-year electric plan because the plan lacked sufficient 

detail for the Commission to determine whether “NIPSCO’s plan for years two 

through seven was ‘reasonable’ or to determine a ‘best estimate of the cost’ of 

the improvements,” as is the standard required by Indiana Code section 8-1-39-

10(b). Id. at 8. Although the court acknowledged that NIPSCO required 

flexibility in creating its 7-year plan as some equipment may require 

replacement earlier or later than originally planned, it believed that this 

flexibility was anticipated by the legislature when it enacted the updating 

process contained in Section 9. Id. The court cautioned that the updating 

process did not relieve a utility from its obligation to provide an initial 7-year 
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plan that met the statutory requirements. Id. Additionally, the court found that 

it was impermissible for the Commission to establish a “‘presumption of 

eligibility’ regarding the undefined projects for years two through seven” 

because such a presumption “inappropriately shifts the burden of showing a 

project’s eligibility for TDSIC treatment from NIPSCO to other intervening 

parties.” Id. at 9. 

[19] Section 9 requires that the utility update its 7-year plan with each tracker 

petition it files with the Commission. Ind. Code § 8-1-39-9(a). In Nipsco 

Industrial Group, this court concluded that the updating process under Section 9 

allows for flexibility in the writing of a 7-year plan as with each petition under 

Section 9, a utility must submit an updated plan. 31 N.E.3d at 8. Although the 

term “update” is not defined in Section 9, in its TDSIC-3 order, the 

Commission interpreted the statutory term “update” to require a showing of 

changes that have occurred to the designated eligible improvements contained 

in the 7-year plan since the last TDSIC filing. Appellant’s App. at 160. The 

Commission also found that an update under Section 9 should include changes 

to the factors considered in approving the plan, i.e., changes in an eligible 

improvement’s cost estimate, necessity, and associated benefits. Id. This 

interpretation discusses changes to previously-approved improvements 

contained in the previous 7-year plan, but does not contemplate new 

improvements or projects not included in the previously-approved 7-year plan.

[20] Recently, a panel of this court decided Indiana Gas Co. v. Indiana Utility 

Regulatory Commission, __ N.E.3d __, No. 93A02-1604-EX-943 (Ind. Ct. App. 
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Apr. 27, 2017), in which Vectren appealed the Commission’s order that 

partially denied Vectren’s petition to update its 7-year plan under Section 9. 

The Commission denied the petition as to new projects that had not been 

previously listed and approved in the original 7-year plan, reasoning that it did 

not have the authority to approve projects that were not included in the original 

7-year plan. Id. at *4 __. In denying the petition as to new projects, the 

Commission found that a plain reading of the term update in Section 9 

indicated that the term only applied to projects that had been designated in the 

original 7-year plan under Section 10. Id. Our court affirmed the 

Commission’s denial, concluding that the Commission’s interpretation that the 

Section 9 updating procedure precluded the addition of new projects was 

consistent with the language of the TDSIC statute referring to eligible 

improvements because, under the statute, an eligible improvement is a project 

that was designated in the original 7-year plan and approved by the 

Commission under Section 10. Id. at *6__. Therefore, because there is not a 

corresponding definition of eligible improvements that are approved in a 

Section 9 update, there is no basis under the TDSIC statute for a new project to 

be added to an updated 7-year plan, and this court held that the Commission 

did not err in denying the Section 9 update as to the addition of new projects. 

Id. at *8 __. Based on the holding in Indiana Gas and on the Commission’s 

interpretation of the word update in TDSIC-3, we agree with the interpretation 

that an update under Section 9 should include changes to the cost estimates for 

previously-approved improvements in the 7-year plan under Section 10, but not 

new or previously-unknown improvements.
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[21] Updates under Section 9 should not include new projects and should merely 

include changes to the previously-approved 7-year plan. However, the present 

case presents a “unique situation” because, although the Commission had 

previously approved NIPSCO’s original 7-year plan, the Electric Decision

determined that such approval was not proper under the TDSIC statute. 

Therefore, the Commission found in its TDSIC-3 order that, while it was 

making a determination under Section 9, it was required to confirm that 

NIPSCO had shown sufficient information in its petition to find the projects 

contained in TDSIC-3 to be eligible improvements. Appellant’s App. at 159. 

Thus, we conclude that, in this unique situation where the original 7-year plan 

was approved, but such approval was later shown to be in error, the updated 7-

year plan in TDISC-3, which was the first tracker proceeding after the Electric 

Decision, represented the 7-year plan to which the Commission was required to

look when determining if the updated 7-year plan in TDSIC-4 was correct.

[22] NIPSCO initially filed its petition under Section 10 seeking approval of its 7-

year plan for its gas system on October 3, 2013. The Commission approved the 

7-year plan and found that NIPSCO’s cost estimates for the 7-year plan were 

reasonable, and that determination was never appealed. On August 28, 2014, 

NIPSCO filed its first tracker petition, and the petition was approved by the 

Commission, including NIPSCO’s proposed methodology for calculating the 

TDSIC adjustment. NIPSCO filed its TDSIC-2, which was subsequently 

dismissed in light of the Electric Decision with the understanding that NIPSCO 
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would request to recover the expenditures and costs covered in TDSIC-2 

through its petition in TDSIC-3. 

[23] On August 31, 2015, NIPSCO filed its TDSIC-3, which again sought approval 

of its updated 7-year plan, and in its first order subsequent to the Electric 

Decision, the Commission approved NIPSCO’s TDSIC-3. Based on the 

Electric Decision, the Commission reevaluated its presumption that projects 

proposed for years three through seven of the 7-year plan could be presumed 

eligible and determined that NIPSCO, in its TDSIC-3, had presented sufficient 

detail regarding project descriptions and cost estimates for those years 

concerning a majority of the projects and projects groups. Appellant’s App. at 

163. In TDSIC-3, NIPSCO sought to provide more specificity with respect to 

the projects contained in the project groups in response to the Electric Decision. 

In the TDSIC-3 order, the Commission approved the use of “project groups,” 

which included some “identified” projects and other “yet to be identified” 

projects and found that NIPSCO “provided ascertainable planning criteria for 

identifying and selecting the specific improvements that it will undertake in 

these project groups.” Id. at 163-64. The Commission also determined that 

NIPSCO had provided sufficient detail and explanation for the changes in 

estimated cost of the eligible improvements included in the updated 7-year plan, 

had sufficiently demonstrated that public convenience and necessity required or 

would require the eligible improvements, and had shown that the incremental 

benefits of the plan justified the costs. Id. at 170-72. Industrial Group did not 

appeal the TDSIC-3 order.
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[24] NIPSCO then filed its TDSIC-4 on February 29, 2016 and sought approval of 

its updated 7-year plan, which again included actual and proposed estimated 

capital expenditures and TDSIC costs that exceeded the amounts included in 

the TDSIC-3 petition. The TDSIC-4 petition provided greater detail than the 

previous petitions, including project estimates, summary of unit cost estimates,

multiple unit project lists and supporting documentation, and project change 

requests. Id. at 8. 

[25] In TDSIC-3, the Commission approved of the ascertainable planning criteria 

that NIPSCO utilized to identify the improvements projects that were included 

in TDSIC-4. Specifically, for multiple unit projects in the categories of “inspect 

and mitigate” and “storage,” NIPSCO stated that asset replacements are 

planned and prioritized based on DOT-mandated annual inspections and that if 

a deficiency is identified through these inspections, federal regulations require 

NIPSCO to reduce the risk presented by the deficiency. Id. at 164. NIPSCO 

also identified specific work to be done and prioritized it based on a preset list 

of planned replacements through 2020. Id. at 33. In the category of “system 

deliverability,” NIPSCO utilizes several planning criteria to plan for adequate 

system deliverability and to identify and evaluate projects to accommodate 

customer demands and delivery requirements. Non-Confidential Ex. Vol. I at 92. 

The criteria include periodic field measurements and natural gas modeling and 

analysis software to perform system performance assessments and look into 

alternate operating scenarios. Id. The gas system models analyze and predict 

customer demand and pressure delivery requirements. Id. Projects are selected 
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when field measurements of pressure, flow rates, ambient temperatures, and gas 

system modeling indicate that service to customers may be at risk. Appellant’s 

App. at 163-64. 

[26] The challenged multiple unit projects at issue here contain both specified and 

unspecified projects. These multiple unit projects are determined by utilizing 

the ascertainable planning criteria that was introduced and approved previously 

in TDSIC-3. Therefore, any projects utilizing the ascertainable planning 

criteria approved of in TDSIC-3 are not new projects because the multiple unit 

project categories and the criteria utilized were designated and approved in the 

7-year plan contained in the TDSIC-3 petition. As long as the future projects 

contained in Section 9 updates are determined by utilizing the ascertainable 

planning criteria from TDSIC-3, the projects should be considered eligible 

improvements and may be included in the updates. However, to the extent that 

the projects contained in the updates are new or are not determined using the 

approved ascertainable planning criteria, they will be considered new projects 

and cannot be included in a Section 9 update. Likewise, it would be improper 

for a Section 9 update to include new criteria under which projects could be 

determined.1 

 

1 However, we do note that in its TDSIC-4 order, the Commission found that NIPSCO should work with the 

Industrial Group to further delineate the criteria that NIPSCO uses to ensure that the parties “have a 

sufficient understanding of the information used to evaluate whether a particular project satisfies the planning 

criteria described by NIPSCO.” Appellant’s App. at 34. Therefore, to the extent that the planning criteria in 

future plan updates changes to meet this directive, it will not be considered new criteria.
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[27] We, therefore, conclude that the Commission did not err in its approval of 

NIPSCO’s TDSIC-4 update. The Commission properly approved NIPSCO’s 

updated 7-year plan because the improvements included in the update were not 

new projects as they were chosen by utilizing the ascertainable planning criteria 

previously approved by the Commission and contained in NIPSCO’s 7-year 

plan. We also do not find that the Commission erroneously granted a 

designation of eligibility to the multiple unit project categories, because, 

although the specific improvements in the categories would not be identified 

until later filings, the improvements were not presumed to be eligible for TDSIC 

treatment, but instead, would be selected by utilizing the ascertainable planning 

criteria that had been previously approved by the Commission. Because we 

find that the improvements included in TDSIC-4 were properly included in the 

TDSIC-4 plan update, we affirm the Commission’s order. 

[28] Affirmed.

Robb, J., concurs.

Barnes, J., dissents with separate opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

NIPSCO Industrial Group,

Appellant-Intervenor,

v.

Northern Indiana Public Service 

Company,

Appellee-Petitioner.

Court of Appeals Case No.

93A02-1607-EX-1644

Barnes, Judge, dissenting.

[29] I respectfully dissent. Given the outline and structure articulated in NIPSCO 

Industrial Group v. Northern Indiana Public Service Co., 31 N.E.3d 1 (Ind. Ct. App. 

2015), I see no basic difference here. The “plan” that NIPSCO says it has for 

the future and the “update” it says it needs run afoul, in my opinion, of Indiana 

Code Chapter 8-1-39, the TDSIC statute. 
Court of Appeals of Indiana | Opinion 93A02-1607-EX-1644 | June 20, 2017 Page 21 of 21

[30] We recognized in NIPSCO Indus. Group that the “legislature anticipated the 

necessity of flexibility when it enacted the updating process of Indiana Code 

Section 8-1-39-9.” NIPSCO Indus. Group, 31 N.E.3d at 8. “Allowing for 

flexibility in a plan is not the same thing as not having a plan at all.” Id. Here, 

NIPSCO’s inclusion of broad categories of unspecified “multiple unit projects” 

does not comply with the statutory requirements. Allowing the utility to 

include broad categories of unspecified projects defeats the purpose of having a 

“plan.”

[31] It is also important to note that, even if NIPSCO does not receive rate increases 

for a project through the TDSIC process, NIPSCO still may be reimbursed for 

unexpected issues in the way it did before TDSIC was enacted through general 

rate making cases. The TDSIC statute requires a specific plan, and it was not

designed to deal with those unexpected issues. Rather, it was intended for 

planned projects. Of course, those projects might cost more than projected, and 

the annual “update” provisions allow the utility to address those issues.

[32] No one expects NIPSCO to anticipate with pinpoint clarity what its needs and 

requirements may be years in the future. What can and should be expected, 

though, is that there be an amount of specificity in anticipated projects and 

needs and that the utility simply not get carte blanche to “update” its plan while 

exploring a rate increase. I understand that any utility, and NIPSCO in 

particular, has a right to enjoy a profit. I have no problem with that. I do have 

a problem with the overall vagueness and almost sleight of hand NIPSCO is 

using to justify the TDSIC rate increase.