Here is the Base Load Review Act
It took three months to get through.
South Carolina General Assembly
117th Session, 2007-2008
Download This Bill in Microsoft Word format
A16, R28, S431
STATUS INFORMATION
General Bill
Sponsors: Senators McConnell, Moore, Drummond, Setzler, Matthews, Thomas, O'Dell, Gregory, Jackson, Mescher, Rankin, Alexander, Anderson, Grooms, Scott, Williams, Cromer, Vaughn, Ritchie, Verdin, Ford, Cleary, Patterson, Hayes and Knotts
Document Path: l:\s-jud\bills\mcconnell\jud0062.gfm.doc
Companion/Similar bill(s): 3499, 3846
Introduced in the Senate on February 13, 2007
Introduced in the House on April 17, 2007
Passed by the General Assembly on April 19, 2007
Became law without Governor's signature, May 3, 2007
Summary: Base Load Review Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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2/13/2007 Senate Introduced and read first time SJ-12
2/13/2007 Senate Referred to Committee on Judiciary SJ-12
2/16/2007 Senate Referred to Subcommittee: Moore (ch), Ford, Mescher,
Rankin, Scott
4/4/2007 Senate Committee report: Favorable with amendment Judiciary SJ-4
4/12/2007 Senate Committee Amendment Amended and Adopted SJ-26
4/12/2007 Senate Read second time SJ-26
4/12/2007 Senate Unanimous consent for third reading on next legislative
day SJ-26
4/13/2007 Senate Read third time and sent to House SJ-1
4/16/2007 Scrivener's error corrected
4/17/2007 House Introduced, read first time, placed on calendar without
reference HJ-19
4/18/2007 House Read second time HJ-90
4/18/2007 House Roll call Yeas-104 Nays-6 HJ-92
4/18/2007 Scrivener's error corrected
4/19/2007 House Read third time and enrolled HJ-10
4/26/2007 Ratified R 28
5/3/2007 Became law without Governor's signature
5/8/2007 Copies available
5/8/2007 Effective date 05/03/07
5/22/2007 Act No. 16
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
2/13/2007
4/4/2007
4/12/2007
4/16/2007
4/17/2007
4/18/2007
(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)
(A16, R28, S431)
AN ACT TO PROTECT SOUTH CAROLINA RATEPAYERS BY ENHANCING THE CERTAINTY OF INVESTMENTS IN THE INFRASTRUCTURE OF ELECTRIC UTILITIES SERVING CONSUMERS IN THIS STATE AND THE RECOVERY OF FUEL COSTS; TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 4 TO CHAPTER 33, TITLE 58 SO AS TO ENACT THE "BASE LOAD REVIEW ACT" BY REVISING PROCEDURES FOR APPROVING COSTS ASSOCIATED WITH THE ADDITION OF BASE LOAD GENERATION PLANTS; TO AMEND SECTION 58-27-870, AS AMENDED, RELATING TO HEARINGS ON PROPOSED RATES FOR ELECTRICAL UTILITIES, SO AS TO PROVIDE ADDITIONAL TIME IN WHICH THE COMMISSION MUST ISSUE AN ORDER UPON ITS FAILURE TO ISSUE AN ORDER; TO AMEND SECTION 58-27-610, RELATING TO DEFINITIONS IN REGARD TO SERVICE RIGHTS OF ELECTRIC SUPPLIERS, SO AS TO ADD A DEFINITION OF "CORRIDOR RIGHTS"; TO AMEND SECTION 58-27-620, RELATING TO SERVICE RIGHTS OF AND RESTRICTIONS ON ELECTRIC SUPPLIERS, SO AS TO FURTHER PROVIDE FOR THESE RIGHTS AND RESTRICTIONS AND A REVISION OF CERTAIN TERRITORIAL ASSIGNMENTS; TO AMEND SECTION 58-27-660, AS AMENDED, RELATING TO THE FURNISHING OF ELECTRIC SERVICE IN AREAS SERVED BY ANOTHER SUPPLIER, SO AS TO FURTHER PROVIDE FOR THE CIRCUMSTANCES UNDER WHICH THE PUBLIC SERVICE COMMISSION MAY ORDER AN ELECTRIC SUPPLIER TO FURNISH ELECTRIC SERVICE; TO AMEND SECTION 58-27-865, AS AMENDED, RELATING TO FUEL COSTS FOR PRODUCING ELECTRIC POWER AND THE RECOVERY OF THESE COSTS, SO AS TO INCLUDE IN THE DEFINITION OF "FUEL COST" CERTAIN ENVIRONMENTAL COSTS AND EMISSIONS ALLOWANCE COSTS INCURRED IN THE PRODUCTION OF ELECTRIC POWER AND TO ALLOW THE PUBLIC SERVICE COMMISSION BY ORDER TO ALLOW ADDITIONAL ENVIRONMENTAL COSTS TO BE INCLUDED IN THE DEFINITION; AND TO AMEND SECTION 58-27-1210, AS AMENDED, RELATING TO EXTENSION OF ELECTRIC FACILITIES, SO AS TO PROVIDE FOR SPECIFIED CIRCUMSTANCES WHEN AN ELECTRIC SUPPLIER MUST OBTAIN PUBLIC SERVICE COMMISSION APPROVAL FOR CONSTRUCTION OF ELECTRIC FACILITIES.
Be it enacted by the General Assembly of the State of South Carolina:
Purpose and findings
SECTION 1. (A) The purpose of Article 4 of Chapter 33 of Title 58, added by Section 2 of this act, is to provide for the recovery of the prudently incurred costs associated with new base load plants, as defined in Section 58-33-220 of Article 4, when constructed by investor-owned electrical utilities, while at the same time protecting customers of investor-owned electrical utilities from responsibility for imprudent financial obligations or costs.
(B) In addition, the General Assembly has determined that it is in the public interest to promote predictability in the determination of which electric supplier has the right to provide service in a given area or location. While the Territorial Assignments Act of 1969 has been largely successful in promoting predictability, there are certain issues which have generated controversy with respect to the service rights of electric suppliers. Sections 4 through 8 and Section 10 of this act are intended to address those situations. In particular, Section 10 of this act is intended to specify those situations in which electric suppliers must obtain commission approval for construction of facilities and is intended to supersede Regulation 103-304, South Carolina Code of Regulations, to the extent it would require approval in any other situation.
(C) With respect to Section 9 of this act, the General Assembly makes the following findings:
(1) by Act 138 of 1983, codified at Section 58-27-865 of the 1976 Code, the General Assembly provided a means for electric utilities to make routine, annual adjustments in the amount of fuel cost recovered from customers;
(2) Section 58-27-865 has furthered the public interest by allowing the recovery of variable and incremental power supply costs on an accurate, timely, and efficient basis;
(3) by Act 348 of 1996, the General Assembly amended Section 58-27-865 to include in annual adjustments the costs of SO2 emissions allowances that utilities are required to consume in generating electricity; and
(4) certain electric utilities are now being required to further limit the SO2 emissions from their generating plants and also limit their emissions of NOx or acquire and consume emissions allowances, and proposals are being made to require electric utilities to limit certain other emissions.
Base Load Review Act
SECTION 2. Chapter 33, Title 58 of the 1976 Code is amended by adding:
"Article 4
Base Load Review Act
Section 58-33-210. This article is known, and may be cited, as the 'Base Load Review Act' and is applicable to utilities as defined in Section 58-33-220 of this article.
Section 58-33-220. The following terms, when used in this article, shall have the following meanings, unless another meaning is clearly apparent from the context:
(1) 'AFUDC' means the allowance for funds used during construction of a plant calculated according to regulatory accounting principles.
(2) 'Base load plant' or 'plant' means a new coal or nuclear fueled electrical generating unit or units or facility that is designed to be operated at a capacity factor exceeding seventy percent annually, has a gross initial generation capacity of three hundred fifty megawatts or more, and is intended in whole or in part to serve retail customers of a utility in South Carolina, and for a coal plant, includes Best Available Control Technology, as defined by the United States Environmental Protection Agency, for the control of air emissions.
(3) 'Base load review application' or 'application' means an application for a base load review order under the terms of this article.
(4) 'Base load review order' means an order issued by the commission pursuant to Section 58-33-270 establishing that if a plant is constructed in accordance with an approved construction schedule, approved capital costs estimates, and approved projections of in-service expenses, as defined herein, the plant is considered to be used and useful for utility purposes such that its capital costs are prudent utility costs and are properly included in rates.
(5) 'Capital costs' or 'plant capital costs' means costs associated with the design, siting, selection, acquisition, licensing, construction, testing, and placing into service of a base load plant, and capital costs incurred to expand or upgrade the transmission grid in order to connect the plant to the transmission grid and includes costs that may be properly considered capital costs associated with a plant under generally accepted principles of regulatory or financial accounting, and specifically includes AFUDC associated with a plant and capital costs associated with facilities or investments for the transportation, delivery, storage, and handling of fuel.
(6) 'Combined application' means a base load review application which is combined with an application for a certificate under the Utility Facility Siting and Environmental Protection Act, or which involves a plant located outside of the State of South Carolina, and at the utility's option may be combined with an application for new electric rates under Section 58-27-860.
(7) 'Combined proceeding' means a proceeding to consider all aspects of a combined application.
(8) 'Construction work in progress' means capital costs as defined above associated with a base load plant which have been incurred but have not been included in the utility's plant-in-service.
(9) 'General rate proceeding' means a proceeding under Section 58-27-810 and other applicable provisions for the establishment of new electric rates and charges, and where orders in general rate proceedings are referenced in this article, these orders include rate orders issued in proceedings or combined proceedings under this article.
(10) 'In-service expenses' means reasonably projected expenses recognized under generally accepted principles of regulatory and financial accounting as a result of a plant commencing commercial operation, including:
(a) expenses associated with operating and maintaining a plant, as well as taxes and governmental charges applicable to the plant including taxes other than income taxes;
(b) depreciation and amortization expenses related to the plant;
(c) revenue requirements related to the utility's cost of capital applied to the investment in supplies, inventories, and working capital associated with the plant; and
(d) other costs determined by the commission to be appropriate for ratemaking purposes. In-service expenses include, but are not limited to, labor, supplies, insurance, general and administrative expenses, and the cost of outside services, but do not include costs recovered as fuel costs pursuant to Section 58-27-865.
(11) 'Person' means any individual, group, firm, partnership, or corporation.
(12) 'Preconstruction costs' means all costs associated with a potential nuclear plant incurred before issuance of a final certificate under the Utility Facility Siting and Environmental Protection Act, including, without limitation, the costs of evaluation, design, engineering, environmental and geotechnical analysis and permitting, contracting, other required permitting including early site permitting and combined operating license permitting, and initial site preparation costs and related consulting and professional costs, and shall include AFUDC associated with those costs. For potential nuclear plants located in other states, the costs must be those incurred before issuance of a certificate by the host state under statutes comparable to the Utility Facility Siting and Environmental Protection Act.
(13) 'Proceeding' means the proceeding to consider an application filed under this chapter.
(14) 'Project development application' means an application for a project development order.
(15) 'Project development order' means an order establishing the prudence of a utility's decision to incur preconstruction costs associated with a nuclear plant or potential nuclear plant.
(16) 'Return on equity' means the return on common equity established in the base load review order for a plant. But, if the order in the utility's most recent general rate proceeding was issued no more than five years before the date of filing of the application or combined application, or if such an order is issued after the application, combined application or base load review order related to the plant is filed, then at the utility's option, the rate of return on common equity established in that order shall be the rate of return used for computing future rate revisions under this article. A project-specific return on equity set hereunder shall apply exclusively to the establishment of the weighted average cost of capital under this article and shall not be used for reporting or any other purpose.
(17) 'Revised rates' means a revised schedule of electric rates and charges reflecting a change to the utility's then current nonfuel rates and charges to add incremental revenue requirements related to a base load plant as authorized in this article. For a nuclear plant under construction, until it enters commercial operation the rate adjustments related to the plant shall include recovery of the weighted average cost of capital applied to the outstanding balance of capital costs of that plant only and shall not include depreciation or other items constituting a return of capital to the utility. For a coal plant, no revised rates shall be allowed except that an adjustment under Section 58-33-280(J)(1) shall be permitted to take effect on or after the date commercial operations of the plant commence.
(18) 'Revised rates order' means an order issued by the commission approving, modifying, or denying the utility's request to charge revised rates under this article, which revised rates order an aggrieved party may contest in an adversarial hearing before the commission.
(19) 'Revised rates proceedings' means all proceedings to consider an application for revised rates or review of a revised rates order.
(20) 'Utility' means a person owning or operating equipment or facilities for generating, transmitting, or delivering electricity to South Carolina retail customers for compensation but it shall not include electric cooperatives, municipalities, the South Carolina Public Service Authority, or a person furnishing electricity only to himself, itself, its residents, employees, or tenants when the electricity is not resold or used by others.
(21) 'Utility Facility Siting and Environmental Protection Act' means Section 58-33-10 and other applicable provisions of this chapter.
(22) 'Weighted average cost of capital' or 'cost of capital' means the utility's average cost of debt and equity capital:
(a) incorporating the return on equity;
(b) incorporating the utility's current weighted average cost of debt;
(c) weighting (a) and (b) according to the utility's capital structure for ratemaking purposes, as established in the order in the utility's last general rate proceeding, updated to reflect the utility's current levels of debt and equity capital; and
(d) adjusting the result for the effect of income taxes.
Section 58-33-225. (A) The provisions of this section apply to the preconstruction costs of a nuclear-powered facility.
(B) At any time before the filing of an application or a combined application under this act related to a specific plant, a utility may file a project development application with the commission and the Office of Regulatory Staff.
(C) In a project development application, the utility shall:
(1) describe the plant being considered and shall designate:
(a) the anticipated generation capacity (or range of capacity) of the plant; and
(b) the projected annual capacity factors or range of factors of the plant;
(2) provide information establishing the need for the generation capacity represented by the potential plant and the need for generation assets with the indicative annual capacity factors of the potential plant;
(3) provide information establishing the reasonableness and prudence of the potential fuel sources and potential generation types that the utility is considering for the plant; and
(4) provide such other information as may be required to establish that the decision to incur preconstruction costs related to the potential nuclear plant is prudent considering the information known to the utility at the time and considering the other alternatives available to the utility for supplying its generation needs.
(D) The commission shall issue a project development order affirming the prudency of the utility's decision to incur preconstruction costs for the nuclear plant specified in the application if the utility demonstrates by a preponderance of evidence that the decision to incur preconstruction costs for the plant is prudent. In issuing its project development order, the commission may not rule on the prudency or recoverability of specific items of cost, but shall rule instead on the prudency of the decision to incur preconstruction costs for the nuclear plant described in Section 58-33-225(C)(1).
(E) Unless the record in a subsequent proceeding shows that individual items of cost were imprudently incurred, or that other decisions subsequent to the issuance of a project development order were imprudently made considering the information available to the utility at the time they were made, then all the preconstruction costs incurred for the potential nuclear plant must be properly included in the utility's plant-in-service and must be recoverable fully through rates in future proceedings under this chapter.
(F) To the extent that a party in a general rate proceeding or revised rates proceeding establishes the imprudence of specific items of cost or of specific decisions made subsequent to the issuance of a project development order as set forth in Section 58-33-225(E), then the commission may disallow the resulting costs but only to the extent that a prudent utility would have avoided those costs considering the information available to the utility at the time when they were incurred or the decisions at issue were made.
(G) If the utility decides to abandon the project after issuance of a prudency determination under this section, then the preconstruction costs related to that project may be deferred, with AFUDC being calculated on the balance, and may be included in rates in the utility's next general rate proceeding or revised rates proceeding, provided that as to the decision to abandon the plant, the utility shall bear the burden of proving by a preponderance of the evidence that the decision was prudent. Without in any way limiting the effect of Section 58-33-225(D), recovery of capital costs and the utility's cost of capital associated with them may be disallowed only to the extent that the failure by the utility to anticipate or avoid the allegedly imprudent costs, or to minimize the magnitude of the costs, was imprudent considering the information available at the time that the utility could have acted to avoid or minimize the costs. Pending an order in the general rate proceeding or revised rates proceeding, the utility, at its discretion, may commence to amortize to cost of service the balance of the preconstruction costs related to the abandoned project over a period equal to the period during which the costs were incurred, or five years, whichever is greater.
(H) Prudency determinations under Section 58-33-225(D) may not be challenged or reopened in any subsequent proceeding including proceedings under Section 58-27-810 and other applicable provisions and Section 58-33-220 and other applicable provisions of this article.
(I) At any time after an initial project development order has been issued, a utility may file an amended project development application seeking a determination of the prudency of the utility's decision to continue to incur preconstruction costs considering changed circumstances or changes in the type or location of nuclear plant that the utility is pursuing or considering other characteristics or decisions related to the plant. The amended project development application must be considered in a separate docket; however, the testimony and other evidence of the prior docket must be considered to be part of the new docket.
(J) Pursuant to Section 58-33-240, the commission shall enter an order granting or denying a project development order or amended project development order within six months of the filing of the application. If the commission fails to issue an order within the period prescribed in this section, a party may move that the commission issue an order granting or denying the application. If the commission fails to issue an order within ten days after the motion is served, the application will be considered granted.
Section 58-33-230. (A) Any utility proposing to construct a plant, individually or jointly with other parties, may elect to come under the terms of this article by filing an application or combined application with the commission, and by serving a copy of that application or combined application on the Office of Regulatory Staff.
(B) If the plant is to be located in South Carolina and no application for a certificate under the Utility Facility Siting and Environmental Protection Act has previously been granted or is then pending, the utility shall file a combined application under this article.
(C) If the plant is to be located outside South Carolina but will serve retail customers in this State, the utility shall file a combined application, but as to the Utility Facility Siting and Environmental Protection Act, the combined application shall address only the requirements of Section 58-33-160(1)(a), (d), and (f) and information pertaining to the environmental impacts of the plant may not be included in the combined application. In issuing the resulting order as to the Utility Facility Siting and Environmental Protection Act, the commission shall make the determinations required under Section 58-33-160(1)(a), (d) and (f) only.
(D) For plants located outside South Carolina that will serve retail customers in this State, the issuance of a certificate for the plant by the host state after a review of issues comparable to those considered under Section 58-33-160(1)(a), (d) and (f) of the Utility Facility Siting and Environmental Protection Act shall create a rebuttable presumption that the requirements of those sections are satisfied.
(E) An application or combined application may be combined with a general rate proceeding application at the utility's option.
(F) The Office of Regulatory Staff shall safeguard the public interest in all matters arising under this article. It shall have full audit rights related to all matters arising under this article and shall review the reasonableness and necessity of all costs to be recovered under this article.
Section 58-33-240. (A) Except as otherwise specified in this article, all procedural requirements that apply to general rate proceedings by law or regulation shall apply to proceedings and combined proceedings, to revised rates proceedings, and to the judicial review of orders issued under this article. The requirements related to the form and content of applications in general rate proceedings, however, only shall apply to proceedings or combined proceedings which include an application for new electric rates under Section 58-27-860 and only shall apply to that part of the application or combined application which is filed under Section 58-27-860.
(B) As to combined proceedings, the procedural requirements related to general rate proceedings shall control over any inconsistent provisions in other statutes; provided, however, that provisions of Section 58-33-140 of the Utility Facility Siting and Environmental Protection Act related to parties and appearances shall apply to proceedings involving facilities located in this State to the extent parties seek to appear to raise issues arising under that act.
(C) In proceedings to review revised rates orders, no further notice to the public, customers, and others is required additional to that provided upon filing of the proceeding or combined proceeding. In proceedings to review revised rates orders, the utility's revised rates filing shall serve as the application and the utility must be considered to be the applicant.
(D) In proceedings and combined proceedings, the utility shall have the burden of proving that the decision to build the plant was prudent, and shall have the burden of proof as to all matters on which the commission is required to enter findings under Section 58-33-270(A), (B), (C), (D), and (E). Without in any way limiting the conclusive effect of determinations under Section 58-33-225 and Section 58-33-275, in cases where this statute allows a party to challenge the prudency of any transaction, cost, or decision of the utility, that party shall be required to make a prima facie case establishing imprudence, and thereafter the burden of proof shall shift to the utility to demonstrate the prudence of the transaction cost, or decision by a preponderance of the evidence.
(E) In proceedings and combined proceedings, the deadlines contained in Section 58-27-870(B) and (C) shall be nine months.
Section 58-33-250. The application for a base load review order under this article shall include:
(1) information showing the anticipated construction schedule for the plant;
(2) information showing the anticipated components of capital costs and the anticipated schedule for incurring them;
(3) information showing the projected effect of investment in the plant on the utility's overall revenue requirement for each year during the construction period;
(4) information identifying:
(a) the specific type of units selected for the plant;
(b) the suppliers of the major components of the plant; and
(c) the basis for selecting the type of units, major components, and suppliers;
(5) information detailing the qualification and selection of principal contractors and suppliers, other than those listed in item (4)(c) above, for construction of the plant;
(6) information showing the anticipated in-service expenses associated with the plant for the twelve months following commencement of commercial operation adjusted to normalize any atypical or abnormal expense levels anticipated during that period;
(7) information required by Section 58-33-270(B)(6);
(8) information identifying risk factors related to the construction and operation of the plant;
(9) information identifying the proposed rate design and class allocation factors to be used in formulating revised rates;
(10) information identifying the return on equity proposed by the utility pursuant to Section 58-33-220(16); and
(11) the revised rates, if any are requested, that the utility intends to put in place after issuance of the resulting base load review order.
Section 58-33-260. (A) A combined application must contain:
(1) an introduction;
(2) material required by law or regulation to be contained in an application filed under the Utility Facility Siting and Environmental Protection Act, except that combined applications associated with plants located outside South Carolina shall address only Section 58-33-160(1)(a), 58-33-160(1)(d), and 58-33-160(1)(f) and information pertaining to the environmental impacts of the plant may not be included in the combined application;
(3) the material required by law or regulation to be contained in an application under this article, including the material required under Section 58-33-250;
(4) if combined with a general rate proceeding, the material required to be filed by law or regulation in applications for the establishment of new rates under Section 58-27-860; and
(5) if the plant is located outside South Carolina, a copy of the order from the host state granting a certificate or other authorization similar to that granted under the Utility Facility Siting and Environmental Protection Act.
(B) Where the same information is required in different sections of the combined application, it may be set forth once and cross-referenced as appropriate.
Section 58-33-270. (A) After the hearing, the commission shall issue a base load review order approving rate recovery for plant capital costs if it determines:
(1) that the utility's decision to proceed with construction of the plant is prudent and reasonable considering the information available to the utility at the time;
(2) for plants located in this State, that the utility has satisfied the requirements of Section 58-33-160 of the Utility Facility Siting and Environmental Protection Act, either in a past proceeding or in the current proceeding if the current proceeding is a combined proceeding; and
(3) for plants located outside South Carolina, that the utility has satisfied the requirements of Section 58-33-160(1)(a), 58-33-160(1)(d), and 58-33-160(1)(f) of the Utility Facility Siting and Environmental Protection Act.
(B) The base load review order shall establish:
(1) the anticipated construction schedule for the plant including contingencies;
(2) the anticipated components of capital costs and the anticipated schedule for incurring them, including specified contingencies;
(3) the return on equity established in conformity with Section 58-33-220(16);
(4) the choice of the specific type of unit or units and major components of the plant;
(5) the qualification and selection of principal contractors and suppliers for construction of the plant; and
(6) the inflation indices used by the utility for costs of plant construction, covering major cost components or groups of related cost components. Each utility shall provide its own indices, including: the source of the data for each index, if the source is external to the company, or the methodology for each index which is compiled from internal utility data, the method of computation of inflation from each index, a calculated overall weighted index for capital costs, and a five-year history of each index on an annual basis.
(C) If revised rates are requested, the base load review order shall specify initial revised rates reflecting the utility's current investment in the plant which must be determined using the standards set forth in Section 58-33-280(B) and implemented according to Section 58-33-280(D).
(D) The base load review order shall establish the rate design and class allocation factors to be used in calculating revised rates related to the plant. In establishing revised rates, all factors, allocations, and rate designs shall be as determined in the utility's last rate order or as otherwise previously established by the commission, except that the additional revenue requirement to be collected through revised rates shall be allocated among customer classes based on the utility's South Carolina firm peak demand data from the prior year.
(E) As circumstances warrant, the utility may petition the commission, with notice to the Office of Regulatory Staff, for an order modifying any of the schedules, estimates, findings, class allocation factors, rate designs, or conditions that form part of any base load review order issued under this section. The commission shall grant the relief requested if, after a hearing, the commission finds:
(1) as to the changes in the schedules, estimates, findings, or conditions, that the evidence of record justifies a finding that the changes are not the result of imprudence on the part of the utility; and
(2) as to the changes in the class allocation factors or rate designs, that the evidence of record indicates the proposed class allocation factors or rate designs are just and reasonable.
(F) The commission shall consider a request under Section 58-33-270(E) in a new docket which pursuant to Section 58-33-240 must be subject to the requirement that the relief requested in this article is considered granted if not denied by order within six months of the date of filing. If the commission fails to issue an order within the period prescribed in this section, a party may move that the commission issue an order granting or denying the application. If the commission fails to issue an order within ten days after the motion is served, the application will be considered granted.
(G) The commission promptly shall schedule a hearing to consider any settlement agreement entered into between the Office of Regulatory Staff, as the party representing the public interest in the proceedings, and the utility applicant, provided that all parties shall have been given a reasonable opportunity to conduct discovery in the docket by the time the hearing is held. The commission may accept the settlement agreement as disposing of the matter, and issue an order adopting its terms, if it determines that the terms of the settlement agreement comport with the terms of this act.
Section 58-33-275. (A) A base load review order shall constitute a final and binding determination that a plant is used and useful for utility purposes, and that its capital costs are prudent utility costs and expenses and are properly included in rates so long as the plant is constructed or is being constructed within the parameters of:
(1) the approved construction schedule including contingencies; and
(2) the approved capital costs estimates including specified contingencies.
(B) Determinations under Section 58-33-275(A) may not be challenged or reopened in any subsequent proceeding, including proceedings under Section 58-27-810 and other applicable provisions and Section 58-33-280 and other applicable provisions of this article.
(C) So long as the plant is constructed or being constructed in accordance with the approved schedules, estimates, and projections set forth in Section 58-33-270(B)(1) and 58-33-270(B)(2), as adjusted by the inflation indices set forth in Section 58-33-270(B)(5), the utility must be allowed to recover its capital costs related to the plant through revised rate filings or general rate proceedings.
(D) Changes in fuel costs will not be considered in conducting any evaluation under this section.
(E) In cases where a party proves by a preponderance of the evidence that there has been a material and adverse deviation from the approved schedules, estimates, and projections set forth in Section 58-33-270(B)(1) and 58-33-270(B)(2), as adjusted by the inflation indices set forth in Section 58-33-270(B)(5), the commission may disallow the additional capital costs that result from the deviation, but only to the extent that the failure by the utility to anticipate or avoid the deviation, or to minimize the resulting expense, was imprudent considering the information available at the time that the utility could have acted to avoid the deviation or minimize its effect.
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