Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/2/2015 4:16:02 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 6/2/2015 4:16:02 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00735-CV *1 ACCEPTED CLERK NO. 03-14-00735-CV E NTERGY T EXAS , I NC ., ET AL . , Appellants, v.
P UBLIC U TILITY C OMMISSION OF T EXAS , I NC ., ET AL ., Appellees.
R EPLY B RIEF Filed by: Public Utility Commission of Texas KEN PAXTON
Attorney General of Texas ELIZABETH R. B. STERLING
Assistant Attorney General CHARLES E. ROY State Bar No. 19171100
First Assistant Attorney General elizabeth.sterling@texasattorneygeneral.gov Environmental Protection Division
JAMES E. DAVIS P.O. Box 12548, MC-066
Deputy Attorney General for Austin, Texas 78711-2548
Civil Litigation
512.463.2012 512.457.4616 (fax)
JON NIERMANN
Chief, Environmental Protection
Division
June 2, 2015 Oral Argument Requested *2 Table of Contents
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Glossary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. In the fuel reconciliation, the Commission properly
removed $4 million in fuel expenses incurred to serve wholesale customers from the amount of fuel expenses Entergy should recover from its retail ratepayers.. . . . . . . . . . . 4 B. The Commission’s Order complies with its rules.. . . . . . . . . . . 5
C. The Commission’s Order resulted in just and reasonable
final fuel rates.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 D. Entergy fails to show that it was harmed by the
Commission’s Order.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A PPENDICES
16 Tex. Admin. Code § 25.236. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A
16 Tex. Admin. Code § 25.237.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B
i
Index of Authorities
Cases Page(s)
Entergy Gulf States, Inc. v. Pub. Util. Comm’n ,
173 S.W.3d 199 (Tex. App.—Austin 2005, pet. denied). . . . . . . . . . . 6
Statutes
Tex. Util. Code
§ 11.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
§ 36.203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Rules
16 Tex. Admin. Code
§§ 25.01–.508. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
§ 25.236(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
§ 25.236(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
§ 25.236(e)(1)(A) & (C).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
§ 25.236(e)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
§ 25.236(e)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 8
§ 25.236(e)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
§ 25.237(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, 7
ii
Glossary
ALJ Administrative Law Judge
Cities Cities of Anahuac, Beaumont, Bridge City,
Cleveland, Conroe, Dayton, Groves, Houston, Huntsville, Montgomery, Navasota, Nederland, Oak Ridge North, Orange, Pine Forest, Rose City, Pinehurst, Port Arthur, Port Neches, Shenandoah, Silsbee, Sour Lake, Splendora, Vidor, and West Orange, Texas These cities are in the service area of Entergy Texas, Inc. and participated as parties in the rate case at the Commission.
Commission Public Utility Commission of Texas
Entergy Entergy Texas, Inc., the utility that asked the
Commission to reconcile fuel expenses in this case ERCOT Electric Reliability Council of Texas
FERC Federal Energy Regulatory Commission
Fuel factor A temporary rate set by the Commission to recover
the utility’s fuel costs See 16 Tex. Admin. Code § 25.237(a)(3).
Fuel reconciliation After the utility has collected for fuel costs using the
fuel factor, it returns to the Commission to reconcile actual fuel costs with amounts recovered under the Fuel Factor. See 16 Tex. Admin. Code § 25.236(b).
Line losses Electricity that the utility generates but is “lost” as it
travels along the wires from the generator to the customer (More electricity is generated than is metered where it is used.)
Order The Commission’s order on rehearing that is the
subject of this lawsuit (AR, Item 244.) iii
Reconciliation period The two-year period from June 1, 2009, through
July 31, 2011; the period during which Entergy incurred fuel expenses that were reconciled in this administrative case
Rule The Commission’s electric rules are found at 16
Texas Administrative Code §§ 25.01–508. In this brief the Commission refers to its rules as Rule 25.___ rather than using the longer citation, i.e. , 16 Tex. Admin. Code § 25.236(e)(3) will be referenced as Rule 25.236(e)(3) in the brief.
$4 million A rounded-up amount used to represent the
$3,981,271 of fuel expenses that the concurrent line- loss study revealed was lost delivering electricity to wholesale customers rather than delivering electricity to retail customers during the reconciliation period
iv
Issues Presented
A utility recovers expenses for fuel used to generate electricity that is lost as
it is delivered to the customer. The Commission found that $4 million of
fuel expenses that was estimated in the temporary rates (called a fuel
factor) to be lost serving retail customers was actually lost serving
wholesale customers. Because the Commission only sets rates for retail
customers, did it reasonably deduct that $4 million from the costs that
Entergy could recover in its final rates (fuel reconciliation) from its retail
customers?
v
Introduction
The Commission files this reply to the “Fuel Costs” section of Entergy’s
Response Brief.
The Commission properly removed nearly $4 million ($3,981,271) from
Entergy’s recoverable fuel expenses when it reconciled Entergy’s fuel
costs—when it determined the utility’s final fuel rates for retail service
provided during the two-year period from June 1, 2009, through July 31,
2011 (reconciliation period). Entergy’s concurrent line-loss study revealed
that $4 million was spent on fuel for electricity that was lost delivering the
electricity to wholesale customers rather than delivering that electricity to
retail customers. Thus, it was not part of the actual, retail fuel costs and
was properly excluded from final rates.
The fuel reconciliation revealed that estimated line losses of serving
retail customers were not the actual line losses of serving retail customers.
The difference appeared because, when the Commission approved
Entergy’s fuel factor that applied during the reconciliation period, it used a
line-loss study performed in 1997. A line-loss study estimates the amount
of electricity that is lost while delivering it from the generator to the end-
user. The cost for generating that lost electricity is billed to customers so
that the utility can recover its reasonable and necessary expenses. When
the Commission conducted the fuel reconciliation in this case, it used the
2010 line-loss study. That study, performed during the reconciliation
period and approved by the Commission in this case (AR, Order, FF
246–247), revealed that $4 million of fuel expenses that were estimated to
be lost delivering electricity to retail customers was actually lost delivering
electricity to wholesale customers.
Summary of Reply
Entergy’s arguments fail to acknowledge the impact of the jurisdictional
separation between the Commission, which sets Entergy’s retail rates, and
the Federal Energy Regulatory Commission (FERC), which sets Entergy’s
wholesale rates, on the line-loss issue in this appeal.
Entergy ignores the conclusions that naturally follow from the
jurisdictional separation.
Because FERC sets Entergy’s wholesale rates and the Commission sets
only its retail rates, the fuel costs that the Commission allows Entergy to
recover in final fuel rates are only costs incurred to serve retail customers.
Fuel costs incurred to serve wholesale customers cannot be included as
reasonable and necessary fuel expenses recovered from retail customers.
Thus, the Commission properly excluded the cost of fuel used to generate
electricity that was lost (line losses) in order to serve wholesale customers
during the reconciliation period. The Commission reasonably used the
Commission-approved line-loss study done during the reconciliation
period because it more accurately determines the separation of wholesale
fuel costs from retail fuel costs that occurred as a result of line losses during
the relevant period.
Because the FERC sets Entergy’s wholesale rates and the Commission
sets only its retail rates, the classes included in rates set by the Commission
include only retail customer classes. Thus, interclass allocations that the
Commission makes under Rule 25.236(e)(3) are only among retail classes.
But the Commission’s decision to separate out fuel expenses incurred to
serve wholesale customers affected the total amount of fuel expenses that
are reasonably and necessarily recovered through the Commission’s rates.
The Commission was not allocating those expenses among retail customer
classes.
Because FERC sets Entergy’s wholesale rates and the Commission sets
only its retail rates, recovery of line losses from wholesale customers will be
controlled by FERC, not the Commission. Looking only at a Commission-
set fuel factor and Commission-determined fuel reconciliation will show
nothing about whether Entergy recovered its expenses for fuel used to
generate electricity that was lost (line losses) in order to serve wholesale
customers.
Argument
A. In the fuel reconciliation, the Commission properly
removed $4 million in fuel expenses incurred to serve
wholesale customers from the amount of fuel expenses
Entergy should recover from its retail ratepayers.
The Commission properly reconciled the amount of fuel expenses that
retail ratepayers actually owed for service during the reconciliation period
because the updated line-loss study revealed that $4 million in expenses for
fuel was incurred serving wholesale customers rather than serving retail
customers.
As explained in earlier Commission briefing, a utility’s fuel expenses are
recovered not through base rates, but through a two-step factor-and-
reconciliation process. The Commission adopts a temporary rate called a
fuel factor that estimates what the utility’s fuel expenses will be. But final
rates are determined after the expenses were incurred so that the final rate
accurately reflects the actual, reasonable and necessary amount the utility
incurred in fuel expenses to serve its customers during the reconciliation
period. The fuel factor is based on estimated costs, based on estimated
usage, and is a temporary rate; the fuel reconciliation is based on actual
costs, based on actual usage, and results in an actual rate.
There is no expectation that the estimated fuel expenses used to develop
the fuel factor will be the same as the actual fuel expenses found in the fuel
reconciliation. That is the very reason for the reconciliation. The two-step
factor-and-reconciliation process is used precisely because it is expected
that the estimated fuel expenses will differ from the actual fuel expenses.
Thus, there is nothing exceptional about the Commission’s decision that
retail ratepayers actually used less electricity during the reconciliation
period than estimated. That this difference in usage was revealed by the
most current line-loss study is no reason to ignore that less electricity was
generated, and therefore less fuel used, to serve retail customers. Expenses
incurred to serve wholesale, rather than retail, customers are not
reasonable and necessary expenses to include in retail rates.
B. The Commission’s Order complies with its rules.
Contrary to Entergy’s arguments, Rule 25.236(e)(3) does not apply to
the Commission’s decision that $4 million in wholesale costs should be
removed from final retail fuel rates. Expenses to serve wholesale customers
are not included in the pot of fuel expenses that the Commission allocates
among retail rate classes.
Not only is Rule 25.236(e)(3) about refunds, which Entergy did not
request in this case, but more fundamentally, the Commission can only
apply that rule to Entergy’s retail rate classes. This is necessarily true
because the Commission can only set retail rates for Entergy. See Entergy
Gulf States, Inc. v. Pub. Util. Comm’n , 173 S.W.3d 199, 207 (Tex.
App.—Austin 2005, pet. denied) (explaining that FERC regulates the sale of
Entergy’s sale of electricity at wholesale (citing 16 U.S.C. § 824(b); Entergy
La., Inc. v. Louisiana Pub. Serv. Comm’n , 539 U.S. 39, 41, 156 L.Ed.2d 34
(2003)). The Commission cannot order refunds or assess surcharges
against Entergy’s wholesale customers because the Commission has no
jurisdiction to set Entergy’s wholesale rates—only its retail rates. Thus, the [1]
Commission’s decision that $4 million in fuel costs were incurred to serve
wholesale rather than retail customers is unaffected by a rule that
addresses Entergy’s interclass allocations only among retail classes.
None of the other rules Entergy cites require the Commission to impose
wholesale fuel costs on retail customers.
• Rules 25.236(e)(1)(A) & (C) are about the calculation of interest. That
does not impact the Commission’s authority as part of the fuel
reconciliation to determine that fuel costs incurred to serve wholesale
customers are not to be imposed on retail customers. *13 • Rule 25.236(e)(2). Because the Commission sets no wholesale rates,
there is no Commission-tariffed rate schedule for wholesale customers
that the Commission has authority to adjust.
• Rule 25.236(e)(4) concerns intra class allocations. Although it mentions
wholesale customers, it can have no application to the Commission’s
regulation of Entergy because the Commission has no jurisdiction to set
wholesale rates for Entergy. Because that utility is outside ERCOT, its
wholesale sales are in interstate commerce.
And the rules the Commission cited in its Order do apply.
• Rule 25.236(d)(2). Because the Commission sets only retail rates, it
would be un reasonable for the Commission to include fuel expenses
incurred to serve wholesale customers in the actual, final rates, and any
wholesale fuel expenses Entergy recovered from its retail customers
through the fuel factor were an over-recovery from its retail customers.
• Rule 25.237(a)(3). Because fuel factors are only temporary rates, the
Commission can adjust final fuel rates in the reconciliation proceeding
to reflect the utility’s actual fuel expenses to serve retail customers
during the reconciliation period. In the reconciliation, the Commission
is free to use a current line-loss study to determine what fuel expenses
Entergy actually incurred due to line losses serving its retail customers.
Finally, there is no conflict between these rules and Rule 25.236(e)(3).
Because, for Entergy, the Commission only has authority to set retail rates,
the Commission-set rates include only retail rate classes. Therefore, the
interclass allocations addressed in Rule 25.236(e)(3) apply only to retail
rate classes.
C. The Commission’s Order resulted in just and reasonable
final fuel rates.
The Commission’s Order implements the statutorily prescribed
legislative intent. That intent is stated in Section 11.002 of the Utilities
Code: “The purpose of this title is to establish a comprehensive and
adequate regulatory system for public utilities to assure rates, operations,
and services that are just and reasonable to the consumers and to the
utilities.” The Commission regulates only retail rates for Entergy. And the
Legislature, in Section 36.203 of the Utilities Code, authorized the
Commission to use a fuel factor—a process where final fuel rates are not
determined until a fuel reconciliation is done after the actual expenses are
known. The Commission’s decision—refusing to allow Entergy to recover
fuel expenses incurred to serve wholesale customers from retail
customers—fulfills the legislative intent. It is reasonable to consumers and
to the utility to require retail customers to pay only for expenses incurred to
provide service to retail customers. And the change from the estimated
amount to the actual amount was effected through the two-step fuel-factor-
and-reconciliation process authorized by the Legislature.
Entergy’s attempts to show the Commission’s decision as anything other
than reasonable are unavailing. Entergy’s statement: “Nor did any party
challenge the reasonableness or necessity of the fuel costs actually incurred
for the reconciliation period,” (Entergy Resp. Br. at 4; see also at 19) is at
best misleading.
While it is true that no party challenged whether the prices Entergy paid
for its fuel were too high, Cities challenged the reasonableness of including
$4 million of fuel expenses that were actually incurred to serve wholesale
customers in fuel rates for only retail customers. Cities’ witness Nalepa
stated: “[Entergy]’s own analysis demonstrates that adjusting the
allocation of fuel costs over the reconciliation period to reflect the actual
line losses for each voltage level for the reconciliation period results in
retail customers subsidizing wholesale customers by approximately $3.98
million.” (AR, Cities Ex. 6 at 44, Binder 9.) And Cities’ brief filed at the
administrative proceeding states: “Failing to reflect the actual line losses
for the reconciliation period … would result in Texas retail customers
subsidizing wholesale and non-fuel factor customers by $3,981,271.” (AR,
Item 161 (Cities’ Initial Br.) at 86, Binder 4.) This testimony and argument
show that Cities challenged the reasonableness of including fuel expenses
incurred to serve wholesale customers in Entergy’s final fuel rates for retail
service.
Entergy is also wrong to suggest that the Commission’s Order fails to
support its decision. Although the Commission’s Order could have been
stated more clearly, when read as a whole, the Order’s finding that
Entergy’s “fuel reconciliation over-recovery should be reduced by
$3,981,271” (Order, FF 246A) reveals that, although Entergy paid
reasonable amounts for the fuel it purchased, Entergy over-recovered
approximately $4 million in fuel expenses that was incurred to serve
wholesale, rather than retail customers.
The findings that Entergy cites, Findings 214 and 217, 218 and 221, and
222 and 225, show that the amounts paid for natural gas expenses, coal
expenses, and purchased-energy expenses were reasonable. Although it
would have been clearer had the Commission modified those findings when
it added Finding 246A, all the findings taken together with the discussion
on page nine of the Order explain that the overall amount of retail fuel
expenses, modified by removing the $3,981,271 for fuel expenses incurred
to serve wholesale customers, is the reasonable and necessary amount.
And Conclusion of Law 17 does not include any amount. The amount of
fuel expenses the Commission found reasonable and necessary is the
amount that results from all of its findings of fact, including Finding 246A.
The Commission’s Order complies with the legislative intent that the
Commission use a two-step fuel-factor-and-reconciliation process to
develop rates that are reasonable to the consumers and to the utility. The
Order is supported by the record and is internally consistent.
D. Entergy fails to show that it was harmed by the
Commission’s Order.
Because FERC, not the Commission, sets wholesale rates, any recovery
of line losses from wholesale customers will be controlled by FERC, not the
Commission. Thus, looking only at a Commission-set retail fuel factor and
Commission-determined retail fuel reconciliation will reveal nothing about
whether Entergy recovered its expenses for fuel used to generate electricity
that was lost (line losses) serving wholesale customers.
The record in this case contains no evidence about Entergy’s FERC-set
wholesale rates. Thus, the evidence equally supports a finding that
Entergy’s wholesale fuel costs were under-recovered or over-recovered.
The testimony Entergy cites to show harm is unavailing. First, Entergy’s
witness stated: “you’re going outside my expertise.” (AR Part III, Binder
43, Vol. I (May 1, 2012, Tr. at 1470–410).) And the witness further
assumes: “you retroactively change an allocation factor and you don’t have
the ability to go back and recover those costs from anyone else,” but, as
explained above, the Commission did not allocate costs to any wholesale
rate class. Thus, the Commission neither allocates nor adjusts an allocation
of those costs to wholesale customers; the Commission only allocates retail
costs among retail customers. Moreover, because Entergy provided no
information about wholesale rates, which are set by the FERC, the Court
cannot know whether Entergy has “the ability to go back and recover those
costs from anyone else” or whether the utility already recovered those costs
from wholesale customers.
Entergy has not shown that it was harmed.
Conclusion and Prayer
Entergy’s arguments against the Commission’s fuel-costs decision fail to
appreciate that FERC sets Entergy’s wholesale rates and the Commission
sets only retail rates. When the Commission determined that $4 million of
costs Entergy claimed as fuel expenses to serve retail customers were
actually incurred to serve wholesale customers, it reasonably removed that
amount from the fuel expenses Entergy could recover from retail customers
through the fuel reconciliation.
The Commission asks the Court to issue the judgment that the district
court should have issued: one that affirms the Commission’s Order on all
issues. Thus, the Commission asks the Court to affirm the district court’s
judgment on the issues raised by Entergy and OPUC, but to reverse the
district court’s judgment to the extent that it found error in the
Commission’s Order. The Commission asks the Court for such other relief
as it may be entitled.
Respectfully submitted, KEN PAXTON
Attorney General of Texas CHARLES E. ROY
First Assistant Attorney General JAMES E. DAVIS
Deputy Attorney General for Civil Litigation JON NIERMANN
Division Chief
Environmental Protection Division /s/ Elizabeth R. B. Sterling Elizabeth R. B. Sterling Assistant Attorney General Texas State Bar No. 19171100 elizabeth.sterling@texasattorneygeneral.gov Environmental Protection Division Office of the Attorney General P.O. Box 12548, MC-066 Austin, Texas 78711-2548 512.463.2012
512.457.4616 (fax)
COUNSEL FOR PUBLIC UTILITY COMMISSION OF TEXAS *20 Certificate of Compliance I certify that the foregoing computer-generated document has 2,507
words, calculated using the computer program WordPerfect 12, pursuant to
Texas Rule of Appellate Procedure 9.4, and that the total number of words
for all of the Commission’s briefing is 15,905.
/s/ Elizabeth R. B. Sterling Elizabeth R. B. Sterling *21 Certificate of Service
I hereby certify that on this the 2nd day of June 2015, a true and
correct copy of the foregoing document was served on the following counsel
electronically, through an electronic filing service and by email:
/s/ Elizabeth R. B. Sterling Elizabeth R. B. Sterling Counsel for Appellant Entergy Texas, Inc.:
Marnie A. McCormick
Patrick J. Pearsall
Duggins, Wren, Mann & Romero, LLP
P. O. Box 1149
Austin, Texas 78767-1149
512.744.9300
512.744.9399 (fax)
mmccormick@dwmrlaw.com
ppearsall@dwmrlaw.com
Counsel for Appellants Cities of Anahuac, et al.:
Daniel J. Lawton
The Lawton Law Firm, P.C.
12600 Hill Country Blvd, Ste. R-275
Austin, TX 78738
512.322.0019
855.298.7978 (fax)
dlawton@ecpi.com
Counsel for Appellant Office of Public Utility Counsel:
Sara J. Ferris
Senior Assistant Public Counsel
Office of Public Utility
P.O. Box 12397
Austin, Texas 78711-2397
512.936.7500
512.936.7520 (fax)
sara.ferris@opuc.texas.gov
Counsel for State Agencies:
Katherine H. Farrell
Assistant Attorney General
Administrative Law Division
Energy Rates Section
Office of the Attorney General
P.O. Box 12548, MC 018-12
Austin, Texas 78711-2548
512.475.4237
512.320.0167 (fax)
katherine.farrell@texasattorneygeneral.gov
Counsel for Texas Industrial Energy Consumers:
Rex VanMiddlesworth
Benjamin Hallmark
Thompson & Knight LLP
98 San Jacinto Blvd., Ste. 1900
Austin, Texas 78701
512.469.6100
512.469.6180 (fax)
rex.vanm@tklaw.com
benjamin.hallmark@tklaw.com
APPENDIX A
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE
PROVIDERS.
Subchapter F. METERING.
§25.236. Recovery of Fuel Costs.
(a) Eligible fuel expenses. Eligible fuel expenses include expenses properly recorded in the Federal
Energy Regulatory Commission Uniform System of Accounts, numbers 501, 502, 503, 509, 518, 536, 547, and 555, as modified in this subsection, as of April 1, 2013, and the items specified in paragraph (8) of this subsection. Any later amendments to the System of Accounts are not incorporated into this subsection. Subject to the commission finding special circumstances under paragraph (7) of this subsection, eligible fuel expenses are limited to:
(1) For any account, the electric utility may not recover, as part of eligible fuel expense, costs incurred after fuel is delivered to the generating plant site, for example, but not limited to, operation and maintenance expenses at generating plants, costs of maintaining and storing inventories of fuel at the generating plant site, unloading and fuel handling costs at the generating plant, and expenses associated with the disposal of fuel combustion residuals. Further, the electric utility may not recover maintenance expenses and taxes on rail cars owned or leased by the electric utility, regardless of whether the expenses and taxes are incurred or charged before or after the fuel is delivered to the generating plant site. The electric utility may not recover an equity return or profit for an affiliate of the electric utility, regardless of whether the affiliate incurs or charges the equity return or profit before or after the fuel is delivered to the generating plant site. In addition, all affiliate payments must satisfy the Public Utility Regulatory Act (PURA) §36.058.
(2) For Accounts 501 and 547, the only eligible fuel expenses are the delivered cost of fuel to the generating plant site excluding fuel brokerage fees. For Account 501, revenues associated with the disposal of fuel combustion residuals will also be excluded.
(3) For Account 502, the only eligible fuel expenses are environmental consumables that are: properly recorded in the Account as chemicals; required to comply with applicable state or federal emission reduction statutes, orders, and regulations; and whose use is directly proportional to the fuel consumed to generate electricity.
(4) For Account 509, the only eligible fuel expenses are allowances expensed concurrent with the monthly emissions of sulfur dioxide and nitrogen oxides.
(5) For Accounts 518 and 536, the only eligible fuel expenses are the expenses properly recorded in the Account excluding brokerage fees. For Account 503, the only eligible fuel expenses are the expenses properly recorded in the Account, excluding brokerage fees, return, non-fuel operation and maintenance expenses, depreciation costs and taxes.
(6) For Account 555, the electric utility may not recover demand or capacity costs. (7) Upon demonstration that such treatment is justified by special circumstances, an electric utility may recover as eligible fuel expenses fuel or fuel related expenses otherwise excluded in paragraphs (1) - (6) of this subsection. In determining whether special circumstances exist, the commission shall consider, in addition to other factors developed in the record of the reconciliation proceeding, whether the fuel expense or transaction giving rise to the ineligible fuel expense resulted in, or is reasonably expected to result in, increased reliability of supply or lower fuel expenses than would otherwise be the case, and that such benefits received or expected to be received by ratepayers exceed the costs that ratepayers otherwise would have paid or otherwise would reasonably expect to pay.
(8) Eligible fuel expenses shall not be offset by revenues by affiliated companies for the purpose of equalizing or balancing the financial responsibility of differing levels of investment and operation costs associated with transmission assets. In addition to the expenses designated in paragraphs (1) - (7) of this subsection, unless otherwise specified by the commission, eligible fuel expenses shall be offset by:
(A) revenues from steam sales included in Accounts 504 and 456 to the extent expenses incurred to produce that steam are included in Account 503; §25.236--1 effective 6/10/14 (P 41905) *25 CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE
PROVIDERS.
Subchapter F. METERING.
(B) revenues from off-system sales in their entirety, except as permitted in paragraph (9) of this subsection; and
(C) revenues from disposition of allowances properly recorded in Account 411.8.
(9) Shared margins from off-system sales. An electric utility may retain 10% of the margins
from an off-system energy sales transaction if the following criteria are met: (A) the electric utility participates in a transmission region governed by an independent system operator or a functionally equivalent independent organization; (B) a generally-applicable tariff for firm and non-firm transmission service is offered in the transmission region in which the electric utility operates; and (C) the transaction is not found to be to the detriment of its retail customers.
(b) Reconciliation of fuel expenses. Electric utilities shall file petitions for reconciliation on a periodic
basis so that any petition for reconciliation shall contain a maximum of three years and a minimum of
one year of reconcilable data and will be filed no later than six months after the end of the period to be
reconciled.
(c) Petitions to reconcile fuel expenses. In addition to the commission prescribed reconciliation
application, a fuel reconciliation petition filed by an electric utility must be accompanied by a
summary and supporting testimony that includes the following information:
(1) a summary of significant, atypical events that occurred during the reconciliation period that
affected the economic dispatch of the electric utility's generating units, including but not limited to transmission line constraints, fuel use or deliverability constraints, unit operational constraints, and system reliability constraints;
(2) a general description of typical constraints that limit the economic dispatch of the electric
utility's generating units, including but not limited to transmission line constraints, fuel use or deliverability constraints, unit operational constraints, and system reliability constraints; (3) the reasonableness and necessity of the electric utility's eligible fuel expenses and its mix of
fuel used during the reconciliation period;
(4) a summary table that lists all the fuel cost elements which are covered in the electric utility's
fuel cost recovery request, the dollars associated with each item, and where to find the item in the prefiled testimony;
(5) tables and graphs which show generation (MWh), capacity factor, fuel cost (cents per kWh
and cents per MMBtu), variable cost and heat rate by plant and fuel type, on a monthly basis; and
(6) a summary and narrative of the next-day and intra-day surveys of the electricity markets and a
comparison of those surveys to the electric utility's marginal generating costs.
(d) Fuel reconciliation proceedings. Burden of proof and scope of proceeding are as follows:
(1) In a proceeding to reconcile fuel factor revenues and expenses, an electric utility has the
burden of showing that:
(A) its eligible fuel expenses during the reconciliation period were reasonable and necessary expenses incurred to provide reliable electric service to retail customers; (B) if its eligible fuel expenses for the reconciliation period included an item or class of items supplied by an affiliate of the electric utility, the prices charged by the supplying affiliate to the electric utility were reasonable and necessary and no higher than the prices charged by the supplying affiliate to its other affiliates or divisions or to unaffiliated persons or corporations for the same item or class of items; and (C) it has properly accounted for the amount of fuel-related revenues collected pursuant to the fuel factor during the reconciliation period.
§25.236--2 effective 6/10/14 (P 41905) *26 CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE
PROVIDERS.
Subchapter F. METERING.
(2) The scope of a fuel reconciliation proceeding includes any issue related to determining the reasonableness of the electric utility's fuel expenses during the reconciliation period and whether the electric utility has over- or under-recovered its reasonable fuel expenses.
(e) Refunds. All fuel refunds and surcharges shall be made using the following methods.
(1) Interest shall be calculated on the cumulative monthly ending under- or over-recovery balance at the rate established annually by the commission for overbilling and underbilling in §25.28 (c) and (d) of this title (relating to Bill Payment and Adjustments). Interest shall be calculated based on principles set out in subparagraphs (A) - (E) of this paragraph. (A) Interest shall be compounded annually by using an effective monthly interest factor. (B) The effective monthly interest factor shall be determined by using the algebraic calculation x = (1 + i) (1/12) - 1; where i = commission-approved annual interest rate, and x = effective monthly interest factor.
(C) Interest shall accrue monthly. The monthly interest amount shall be calculated by applying the effective monthly interest factor to the previous month's ending cumulative under/over recovery fuel and interest balance.
(D) The monthly interest amount shall be added to the cumulative principal and interest under/over recovery balance.
(E) Interest shall be calculated through the end of the month of the refund or surcharge. (2) Rate class as used in this subparagraph shall mean all customers taking service under the same tariffed rate schedule, or a group of seasonal agricultural customers as identified by the electric utility.
(3) Interclass allocations of refunds and surcharges, including associated interest, shall be developed on a month-by-month basis and shall be based on the historical kilowatt-hour usage of each rate class for each month during the period in which the cumulative under- or over-recovery occurred, adjusted for line losses using the same commission-approved loss factors that were used in the electric utility's applicable fixed or interim fuel factor.
(4) Intraclass allocations of refunds and surcharges shall depend on the voltage level at which the customer receives service from the electric utility. Retail customers who receive service at transmission voltage levels, all wholesale customers, and any groups of seasonal agricultural customers as identified by the electric utility shall be given refunds or assessed surcharges based on their individual actual historical usage recorded during each month of the period in which the cumulative under- or over-recovery occurred, adjusted for line losses if necessary. All other customers shall be given refunds or assessed surcharges based on the historical kilowatt-hour usage of their rate class.
(5) Unless otherwise ordered by the commission, all refunds shall be made through a one-time bill credit and all surcharges shall be made on a monthly basis over a period not to exceed 12 months through a bill charge. However, refunds may be made by check to municipally- owned electric utility systems if so requested. Retail customers who receive service at transmission voltage levels, all wholesale customers, and any groups of seasonal agricultural customers as identified by the electric utility shall be given a one-time credit or assessed a surcharge made on a monthly basis over a period not to exceed 12 months through a bill charge. All other customers shall be given a credit or assessed a surcharge based on a factor which will be applied to their kilowatt-hour usage over the refund or surcharge period. This factor will be determined by dividing the amount of refund or surcharge allocated to each rate class by forecasted kilowatt-hour usage for the class during the period in which the refund or surcharge will be made.
§25.236--3 effective 6/10/14 (P 41905) *27 CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE
PROVIDERS.
Subchapter F. METERING.
(6) A petition to surcharge or refund a fuel under- or over-recovery balance not associated with a
proceeding under subsection (d) of this section shall be processed in accordance with the filing schedules in §25.237(d) of this title (relating to Fuel factors) and the deadlines in §25.237(e) of this title.
(f) Procedural schedule. Upon the filing of a petition to reconcile fuel expenses in a separate
proceeding, the presiding officer shall set a procedural schedule that will enable the commission to
issue a final order in the proceeding within one year after a materially complete petition was filed.
However, if the deadlines result in a number of electric utilities filing cases within 45 days of each
other, the presiding officers shall schedule the cases in a manner to allow the commission to
accommodate the workload of the cases irrespective of whether such procedural schedule enables the
commission to issue a final order in each of the cases within one year after a materially complete
petition is filed.
§25.236--4 effective 6/10/14 (P 41905) *28 APPENDIX B
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE
PROVIDERS.
Subchapter J. COSTS, RATES AND TARIFFS.
DIVISION 1: RETAIL RATES.
§25.237. Fuel Factors.
(a) Use and calculation of fuel factors. An electric utility's fuel costs will be recovered from the
electric utility's customers by the use of a fuel factor that will be charged for each kilowatt-hour (kWh) consumed by the customer.
(1) An electric utility may determine its fuel factor in dollars per kilowatt-hour pursuant to either subparagraph (A) or (B) of this paragraph. Fuel factors must account for system losses and for the difference in line losses corresponding to the voltage at which the electric service is provided. An electric utility may have different fuel factors for different times of the year to account for seasonal variations. A different method of calculation may be allowed upon a showing of good cause by the electric utility.
(A) Fuel factors may be determined by dividing the electric utility’s projected net eligible fuel expenses, as defined in §25.236(a) of this title (relating to Recovery of Fuel Costs), by the corresponding projected kilowatt-hour sales for the period in which the fuel factors are expected to be in effect.
(B) Fuel factors may be determined using a commission-approved, utility-specific fuel factor formula. Fuel factor formulas may be approved or revised only in a general rate change proceeding or a proceeding to consider an application to establish a fuel factor formula with notice and an opportunity for a hearing.
(2) An electric utility may initiate a change to its fuel factor as follows: (A) Pursuant to subsection (a)(1)(A) of this section, an electric utility may petition to adjust its fuel factor as often as once every four months according to the schedule set out in subsection (d) of this section.
(B) Pursuant to subsection (a)(1)(B) of this section, an electric utility may petition to adjust its fuel factor in accordance with its approved fuel factor formula no sooner than four months after the filing of its most recent fuel factor adjustment petition.
(C) Notwithstanding subsection (a)(2)(A) of this section, an electric utility may petition to change its fuel factor at times other than provided in the schedule if an emergency exists as described in subsection (f) of this section.
(D) An electric utility's fuel factor may be changed in any general rate proceeding. (3) Fuel factors are temporary rates, and the electric utility's collection of revenues by fuel factors is subject to the following adjustments:
(A) The reasonableness of the fuel costs that an electric utility has incurred will be periodically reviewed in a reconciliation proceeding, as described in §25.236 of this title, and any disallowed costs resulting from a reconciliation proceeding will be reflected in the calculation of the utility’s recoverable fuel and over/(under) collections.
(B) To the extent that there are variations between the fuel costs incurred and the revenues collected, it may be necessary or convenient to refund overcollections or surcharge undercollections. Refunds or surcharges may be made without changing an electric utility's fuel factor. Nothwithstanding §25.236(e)(6) of this title, an electric utility may petition for a surcharge any time it has materially undercollected its fuel costs and projects that it will continue to be in a state of material undercollection. Notwithstanding §25.236(e)(6) of this title, an electric utility shall petition to make a refund any time it has materially overcollected its §25.237--1 9/04/08 *30 CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE
PROVIDERS.
Subchapter J. COSTS, RATES AND TARIFFS.
DIVISION 1: RETAIL RATES.
§25.237(a)(3)(B) continued fuel costs and projects that it will continue to be in a state of material overcollection. "Materially" or "material," as used in this section, shall mean that the cumulative amount of over- or under-recovery, including interest, is greater than or equal to 4.0% of the annual actual fuel cost figures on a rolling 12-month basis, as reflected in the utility’s monthly fuel cost reports as filed by the utility with the commission.
(b) Petitions to revise fuel factors.
(1) An electric utility using the fuel factor methodology set forth under subsection (a)(1)(A) of
this section may file a petition requesting revised fuel factors pursuant to subsection (a)(2)(A) of this section during the first five business days of the months specified in subsection (d) of this section. A copy of the complete petition package shall be served on each party in the utility’s most recent fuel reconciliation and on the Office of Public Utility Counsel. Service shall be accomplished by email if possible. Each complete filing package shall include the commission-prescribed fuel factor application, a tariff sheet reflecting the proposed fuel factors and supporting testimony that includes the following information: (A) For each month of the period in which the fuel-factor has been in effect and has not been reconciled up to the most recent month for which information is available, (i) the revenues collected pursuant to fuel factors by customer class; (ii) any other items that to the knowledge of the electric utility have affected fuel factor revenues and eligible fuel expenses; and (iii) the difference, by customer class, between the revenues collected pursuant to fuel factors and the eligible fuel expenses incurred.
(B) For each month of the period for which the revised fuel factors are expected to be in effect, provide system energy input and sales, accompanied by the calculations underlying any differentiation of fuel factors to account for differences in line losses corresponding to the voltage at which the electric service is provided.
(2) An electric utility using the fuel factor formula methodology set forth under subsection
(a)(1)(B) of this section may file a petition requesting revised fuel factors pursuant to subsection (a)(2)(B) of this section at least 15 days prior to the first billing cycle in the billing month in which the proposed fuel factors are requested to become effective. A copy of the complete petition package shall be served on each party in the utility’s most recent fuel reconciliation and on the Office of Public Utility Counsel. Service shall be accomplished by email if possible. Each complete filing package shall include: (A) a tariff sheet reflecting the proposed fuel factors;
(B) workpapers supporting the calculation of the revised fuel factors; (C) calculations underlying any differentiation of fuel factors to account for differences in line losses corresponding to the voltage at which the electric service is provided; and
(D) any computer generated documents must be provided in their native electronic format with all cells and internal formulas disclosed.
§25.237--2 9/04/08 *31 CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE
PROVIDERS.
Subchapter J. COSTS, RATES AND TARIFFS.
DIVISION 1: RETAIL RATES.
§25.237 continued
(c) Fuel factor revision proceeding. Burden of proof and scope of proceeding are as follows:
(1) In a proceeding to revise fuel factors pursuant to subsection (a)(1)(A) of this section, an electric utility has the burden of proving that:
(A) the expenses proposed to be recovered through the fuel factors are reasonable estimates of the electric utility's eligible fuel expenses during the period that the fuel factors are expected to be in effect;
(B) the electric utility's estimated monthly kilowatt-hour system sales and off-system sales are reasonable estimates for the period that the fuel factors are expected to be in effect; and
(C) the proposed fuel factors are reasonably differentiated to account for line losses corresponding to the voltage at which the electric service is provided.
(2) The scope of a fuel factor revision proceeding under subsection (a)(1)(B) of this section is limited to the issue of whether the petitioning electric utility has appropriately calculated its proposed fuel factors. In a proceeding to revise fuel factors pursuant to subsection (a)(1)(B) of this section, an electric utility has the burden of proving that: (A) the electric utility has calculated its proposed fuel factors in compliance with the commission-approved fuel factor formula; and (B) the proposed fuel factors utilize a commission-approved adjustment to account for line losses corresponding to the voltage at which the electric service is provided.
(d) Schedule for filing petitions to revise fuel factors . A petition to revise fuel factors or to initiate or
revise a fuel factor formula may be filed with any general rate proceeding.
(1) Otherwise, except as provided by subsection (f) of this section which addresses emergencies, petitions by an electric utility to revise fuel factors pursuant to subsection (a)(1)(A) of this section may only be filed in accordance with the following schedule: (A) February, June and October : El Paso Electric Company; (B) March, July and November : Entergy Texas, Inc.; (C) April, August and December : Southwestern Public Service Company; (D) May, September and January : Southwestern Electric Power Company; and (E) March, July and November : any other electric utility not named in this subsection that uses one or more fuel factors.
(2) Petitions by an electric utility to revise fuel factors pursuant to subsection (a)(1)(B) of this section may be filed in any month except December.
(e) Procedural schedules.
(1) Upon the filing of a petition to revise fuel factors pursuant to subsection (a)(1)(A) of this section, the presiding officer shall set a procedural schedule that will enable the commission to issue a final order in the proceeding as follows:
(A) within 60 days after the petition was filed, if no hearing is requested within 30 days of the petition; and
(B) within 90 days after the petition was filed, if a hearing is requested within 30 days of the petition. If a hearing is requested, the hearing will be held no earlier than the first business day after the 45th day after the application was filed. §25.237--3 9/04/08 *32 CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE
PROVIDERS.
Subchapter J. COSTS, RATES AND TARIFFS.
DIVISION 1: RETAIL RATES.
§25.237(e) continued
(2) Upon the filing of a petition to revise fuel factors pursuant to subsection (a)(1)(B) of this
section, the presiding officer shall set a procedural schedule as follows: (A) the presiding officer shall issue an order approving the proposed fuel factors on an interim basis no later than 12 days after the date the petition was filed, if no objection to interim approval is filed within 10 days after the date the petition was filed;
(B) if no hearing is requested within 30 days after the petition was filed, the presiding officer shall, after submission of proof of notice by the electric utility, issue an order approving the fuel factors without hearing or action by the commission; and (C) if a hearing is requested within 30 days after the petition was filed, the hearing will be held no earlier than the first business day after the 45th day after the petition was filed and a final order will be issued within 90 days after the petition was filed, subject to submission of proof of notice by the electric utility.
(f) Emergency revisions to the fuel factor. If fuel curtailments, equipment failure, strikes, embargoes,
sanctions, or other reasonably unforeseeable circumstances have caused a material under-recovery of
eligible fuel costs, the electric utility may file a petition with the commission requesting an
emergency interim fuel factor. Such emergency requests shall state the nature of the emergency, the
magnitude of change in fuel costs resulting from the emergency circumstances, and other
information required to support the emergency interim fuel factor. The commission shall issue an
interim order within 30 days after such petition is filed to establish an interim emergency fuel factor.
If within 120 days after implementation, the emergency interim factor is found by the commission to
have been excessive, the electric utility shall refund all excessive collections with interest calculated
on the cumulative monthly ending under- or overrecovery balance in the manner and at the rate
established by the commission for overbilling and underbilling in §25.28(c) and (d) of this title
(relating to Bill Payment and Adjustments Billing). If, after full investigation, the commission
determines that no emergency condition existed, a penalty of up to 10% of such over-collections may
also be imposed on investor-owned electric utilities.
§25.237--4 9/04/08
[1] Entergy’s indication on page 14 of its response brief is thus wrong: Entergy’s wholesale customers cannot buy electricity under a Commission tariff.