Gas firm says Aspen, Glenwood knew about its billing practices
The attorney for a gas company being sued by the cities of Aspen and Glenwood Springs claims to have proof that the cities understood the company’s rate structures years ago – evidence that might prompt a judge to throw out the lawsuit altogether.The suit, filed in June, claims that Kinder Morgan Inc. bills customers who live at high altitudes unfairly. Because gas expands at higher altitudes, natural gas delivered in mountain towns has less heating content than it does at sea level, meaning consumers would have to buy more to heat their homes sufficiently, the suit says.The gas company has said that it does take altitude into account when billing customers on the Western Slope, taking an average of altitudes and billing all mountain residents at a measure of 5,900 feet.Kinder Morgan attorney Mike Beatty said he can prove that in 1998 Aspen City Attorney John Worcester was aware of that billing method. Beatty cited a draft complaint prepared for filing with the Colorado Public Utilities Commission that he came across while researching the case.He said the draft is just like the present lawsuit but with one “important difference.” The draft is on behalf of all of the defendant’s customers located at an altitude higher than the average altitude of the defendant’s other customers. That statement indicates that the plaintiffs understood in 1998 how the gas company uses an average to bill customers.On the other hand, Beatty notes that the current suit is on behalf of all Kinder Morgan customers on the Western Slope, claiming to be deceived into tricky billing practices.”I think it shows rather dramatically that they knew when they filed their complaint that what they were saying to the court was not true,” Beatty said of the current lawsuit.The gas company still argues that this dispute should be taken in front of the Colorado Public Utilities Commission rather than through the court system. But the cities argue that the gas company is violating the Consumer Protection Act, since it allegedly deceived customers with fraudulent billing.”In order to file the case in court under the Consumer Protection Act, they have to claim that they were deceived. So they’re saying ‘You’re billing us at sea level and we never knew it.’ The problem is, in 1998 they did know [how they were being billed].”Aspen City Attorney John Worcester, however, said the company’s billing procedures certainly weren’t clear to him six years ago.Worcester said that part-time Aspen resident Jack Grynberg came to the city of Aspen with a whole host of allegations against the gas company in the years before the current lawsuit was filed. Grynberg is a natural gas producer with several past attempts at litigation against Kinder Morgan – many successfully. He said in 1998 Grynberg made a presentation to City Council and Worcester remembered agreeing with the issue of being overcharged by the gas company because of altitude.Grynberg offered to have his attorney draft a complaint, Worcester said, although the complaint was never filed with any agency. “They’re saying it proves we knew how they were billing us,” Worcester says, “but back in ’98 I’m sure I didn’t know what the average was. That complaint had a lot of things in it I didn’t know to be fact, and it was drafted by someone other than me.”Worcester said he is still not clear from the gas company’s explanations how all charges on a customer’s gas bill are adjusted for altitude. In addition, he said even if Kinder Morgan is using the average of 5,900, Aspen residents, at approximately 7,900 feet, are still getting short-changed.At this point, Worcester said the gas company is “attacking the messenger, rather than addressing issues.”After the original suit was filed, the gas company filed a motion to dismiss the suit, and the cities filed their opposition in response. The most recent findings filed by Kinder Morgan constitute a reply to that opposition.Judge T. Peter Craven must now decide whether to hear the case or to dismiss it. If the case is dismissed, the cities will have to decide if they want to appeal.Naomi Havlen’s e-mail address is email@example.com
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