| 1 | A bill to be entitled | 
| 2 | An act relating to air quality; amending s. 366.8255,  | 
| 3 | F.S.; redefining the term "environmental laws or  | 
| 4 | regulations" to include certain agreements entered into by  | 
| 5 | electric utilities with the Department of Environmental  | 
| 6 | Protection; redefining the term "environmental compliance  | 
| 7 | costs" to include costs related to certain air pollution  | 
| 8 | control equipment; providing for cost recovery by electric  | 
| 9 | utilities under certain circumstances; creating s.  | 
| 10 | 366.8252, F.S.; providing for compliance with the Air  | 
| 11 | Quality Improvement Act; providing a definition; requiring  | 
| 12 | specified public utilities to submit a petition to the  | 
| 13 | Public Service Commission for recovery of costs related to  | 
| 14 | plans to achieve compliance; requiring the commission to  | 
| 15 | establish regulatory conditions for approval of cost  | 
| 16 | recovery; providing legislative findings that certain  | 
| 17 | conditions imposed by the act are in the public interest;  | 
| 18 | creating s. 403.0874, F.S.; creating the Air Quality  | 
| 19 | Improvement Act; providing definitions; providing limits  | 
| 20 | on emissions of nitrogen oxide and sulfur dioxide from  | 
| 21 | certain electric generating units; requiring the  | 
| 22 | department to expedite certain permits under certain  | 
| 23 | circumstances; providing an effective date. | 
| 24 | 
  | 
| 25 |      WHEREAS, the Legislature intends to encourage and promote  | 
| 26 | the reduction of air emissions throughout the state, and | 
| 27 |      WHEREAS, in an attempt to improve the state's air quality,  | 
| 28 | the Legislature wishes to provide incentives for and encourage  | 
| 29 | innovative approaches to lowering emissions from existing  | 
| 30 | generating facilities, NOW, THEREFORE, | 
| 31 | 
  | 
| 32 | Be It Enacted by the Legislature of the State of Florida: | 
| 33 | 
  | 
| 34 |      Section 1.  Paragraphs (c) and (d) of subsection (1) and  | 
| 35 | subsection (2) of section 366.8255, Florida Statutes, are  | 
| 36 | amended to read: | 
| 37 |      366.8255  Environmental cost recovery.-- | 
| 38 |      (1)  As used in this section, the term: | 
| 39 |      (c)  "Environmental laws or regulations" includes all  | 
| 40 | federal, state, or local statutes, administrative regulations,  | 
| 41 | orders, ordinances, resolutions, or other requirements,  | 
| 42 | including, but not limited to, voluntary agreements for air  | 
| 43 | quality improvement programs entered into with the Florida  | 
| 44 | Department of Environmental Protection prior to December 31,  | 
| 45 | 2011, that apply to electric utilities and are designed to  | 
| 46 | protect or improve the environment. | 
| 47 |      (d)  "Environmental compliance costs" includes all costs or  | 
| 48 | expenses incurred by an electric utility in complying with  | 
| 49 | environmental laws or regulations, including, but not limited  | 
| 50 | to: | 
| 51 |      1.  Inservice capital investments, including the electric  | 
| 52 | utility's last authorized rate of return on equity thereon.; | 
| 53 |      2.  Operation and maintenance expenses.; | 
| 54 |      3.  Fuel procurement costs.; | 
| 55 |      4.  Purchased power costs.; | 
| 56 |      5.  Emission allowance costs.; | 
| 57 |      6.  Direct taxes on environmental equipment.; and | 
| 58 |      7.  Costs or expenses prudently incurred by an electric  | 
| 59 | utility pursuant to an agreement entered into on or after the  | 
| 60 | effective date of this act and prior to October 1, 2002, between  | 
| 61 | the electric utility and the Florida Department of Environmental  | 
| 62 | Protection or the United States Environmental Protection Agency  | 
| 63 | for the exclusive purpose of ensuring compliance with ozone  | 
| 64 | ambient air quality standards by an electrical generating  | 
| 65 | facility owned by the electric utility. | 
| 66 |      8.  Costs or expenses the commission determines are  | 
| 67 | prudently incurred by an electric utility for the addition of  | 
| 68 | air pollution control equipment for purposes of attaining or  | 
| 69 | maintaining compliance status with ambient air quality standards  | 
| 70 | or reducing emissions of hazardous air pollutants or visibility- | 
| 71 | impairing pollutants. In order to seek recovery of costs and  | 
| 72 | expenses described in this subparagraph, an electric utility  | 
| 73 | must enter into an agreement with the Florida Department of  | 
| 74 | Environmental Protection prior to December 31, 2011, for the  | 
| 75 | expeditious installation of this pollution control equipment. | 
| 76 |      (2)  An electric utility may submit to the commission a  | 
| 77 | petition describing the utility's proposed environmental  | 
| 78 | compliance activities and projected environmental compliance  | 
| 79 | costs in addition to any Clean Air Act and Air Quality  | 
| 80 | Improvement Act compliance activities and costs shown in a  | 
| 81 | utility's filing under ss. s. 366.825 and 366.8252 and may  | 
| 82 | include a proposal for nontraditional recovery of any such costs  | 
| 83 | and the reasons supporting approval of the proposal. If  | 
| 84 | approved, the commission shall allow recovery of the utility's  | 
| 85 | prudently incurred environmental compliance costs, including the  | 
| 86 | costs incurred in compliance with the Clean Air Act and the Air  | 
| 87 | Quality Improvement Act, and any amendments thereto or any  | 
| 88 | change in the application or enforcement thereof, through an  | 
| 89 | environmental compliance cost-recovery factor that is separate  | 
| 90 | and apart from the utility's base rates. An adjustment for the  | 
| 91 | level of costs currently being recovered through base rates or  | 
| 92 | other rate-adjustment clauses must be included in the filing. | 
| 93 |      Section 2.  Section 366.8252, Florida Statutes, is created  | 
| 94 | to read: | 
| 95 |      366.8252  Air Quality Improvement Act compliance;  | 
| 96 | definitions; plans; conditions.-- | 
| 97 |      (1)  For the purposes of this section, the term "Air  | 
| 98 | Quality Improvement Act" or "act" refers to s. 403.0874. | 
| 99 |      (2)  Each public utility subject to the air emission  | 
| 100 | limitations of the Air Quality Improvement Act may petition the  | 
| 101 | commission for approval to recover the costs of a plan to  | 
| 102 | achieve compliance with the act. Such petition shall be filed  | 
| 103 | with the commission on or before September 1 of the year prior  | 
| 104 | to the calendar year for which requested cost recovery is to  | 
| 105 | commence and shall include: | 
| 106 |      (a)  The number and identity of affected generating units. | 
| 107 |      (b)  A description of the compliance plan submitted by the  | 
| 108 | public utility to the Department of Environmental Protection for  | 
| 109 | certification pursuant to s. 403.0874(7). | 
| 110 |      (c)  The estimated effects of the compliance plan on the  | 
| 111 | public utility's requirements for construction and operation of  | 
| 112 | proposed or alternative generating facilities. | 
| 113 |      (d)  The public utility's proposed schedule for  | 
| 114 | implementation of compliance activities. | 
| 115 |      (e)  The estimated costs, including capital investment and  | 
| 116 | operating expenses, that the public utility will incur to  | 
| 117 | implement its compliance plan. | 
| 118 |      (f)  A description of any changes in the public utility's  | 
| 119 | future sources of fuel as a result of the compliance plan and  | 
| 120 | the estimated effects of any such changes on the public  | 
| 121 | utility's fuel costs. | 
| 122 |      (3)  The commission shall review the costs submitted  | 
| 123 | pursuant to paragraph (2)(e) to determine whether such estimated  | 
| 124 | costs are reasonable. If, after such review, the commission  | 
| 125 | determines that the estimated costs of the public utility's plan  | 
| 126 | are reasonable, it shall approve the costs for recovery from the  | 
| 127 | utility's retail customers in accordance with the provisions of  | 
| 128 | s. 366.8255, subject to the additional regulatory conditions  | 
| 129 | provided in subsection (4). The commission shall render its  | 
| 130 | decision on a plan filed by a public utility within 8 months  | 
| 131 | after the date of filing. Notwithstanding the date of the  | 
| 132 | commission's decision, recovery of the public utility's  | 
| 133 | estimated costs shall be allowed commencing with the beginning  | 
| 134 | of the calendar year requested in the utility's petition and  | 
| 135 | shall be made subject to refund if the commission has not  | 
| 136 | rendered its decision prior to such time. Approval by the  | 
| 137 | commission shall establish that the public utility's estimated  | 
| 138 | costs to implement the plan are recoverable, subject to true-up  | 
| 139 | based on a subsequent determination of the utility's reasonable  | 
| 140 | actual costs. | 
| 141 |      (4)  The commission shall establish the following  | 
| 142 | regulatory conditions in conjunction with the approval of cost  | 
| 143 | recovery for a public utility's compliance plan pursuant to  | 
| 144 | subsection (3): | 
| 145 |      (a)  If requested by the public utility in its petition  | 
| 146 | filed pursuant to subsection (2), the commission shall authorize  | 
| 147 | recovery of the public utility's total costs to implement the  | 
| 148 | compliance plan on a levelized basis over a period not to exceed  | 
| 149 | 7 years beginning with the year in which cost recovery  | 
| 150 | commences. The public utility shall have the discretion in any  | 
| 151 | year during such cost recovery period to increase or decrease  | 
| 152 | such levelized recovery amount to the extent of any net over- | 
| 153 | recovery or under-recovery in the aggregate for its combined  | 
| 154 | adjustment clauses, provided that the utility's estimated costs  | 
| 155 | to implement the compliance plan are fully recovered by the  | 
| 156 | conclusion of the cost recovery period. Any over-recovery or  | 
| 157 | under-recovery of the public utility's actual costs to implement  | 
| 158 | the compliance plan shall be trued up in the year following the  | 
| 159 | conclusion of the cost recovery period. Costs to implement the  | 
| 160 | compliance plan that are incurred beyond the recovery period  | 
| 161 | shall be recovered through applicable adjustment clauses in  | 
| 162 | accordance with the commission's normal practice and procedure. | 
| 163 |      (b)  If cost recovery is implemented pursuant to paragraph  | 
| 164 | (a), the base rates and related rate schedules of the public  | 
| 165 | utility in effect on the effective date of this section shall  | 
| 166 | remain unchanged and frozen during the initial 5 years of the  | 
| 167 | recovery period, the adjustment clause recovery factors of the  | 
| 168 | public utility in effect on the effective date of this section  | 
| 169 | shall remain unchanged and frozen during the recovery period,  | 
| 170 | and the depreciation rates and any annual adjustments to  | 
| 171 | depreciation expenses and reserves allowed in a rate settlement  | 
| 172 | agreement approved by the commission for the public utility that  | 
| 173 | are in effect on the effective date of this section shall remain  | 
| 174 | in effect and capped during the recovery period, provided,  | 
| 175 | however, that: | 
| 176 |      1.  The base rate freeze shall not apply during the initial  | 
| 177 | fixed term of any such base rate settlement agreement. Beyond  | 
| 178 | the initial fixed term, any such rate settlement agreement shall  | 
| 179 | be deemed to be superseded and replaced by the provisions of  | 
| 180 | this subsection. The public utility may elect to extend the base  | 
| 181 | rate freeze for the full cost recovery period by written notice  | 
| 182 | to the commission at least 3 months prior to the expiration of  | 
| 183 | the initial 5-year rate freeze period. | 
| 184 |      2.  Any revenue-sharing mechanism contained in a base rate  | 
| 185 | settlement agreement approved by the commission in lieu of rate  | 
| 186 | of return regulation that is in effect on the effective date of  | 
| 187 | this section shall be extended for the period of the base rate  | 
| 188 | freeze and shall be the appropriate and exclusive mechanism to  | 
| 189 | address earnings levels; provided, however, that: | 
| 190 |      a.  The revenue-sharing threshold for the year following  | 
| 191 | the initial fixed term of the base rate settlement agreement  | 
| 192 | shall be established by using actual calendar year 2003 gross  | 
| 193 | retail base rate revenues increased annually for the  | 
| 194 | intermediate years by the average annual growth rate in retail  | 
| 195 | kilowatt hour sales for the 10-calendar-year period ending  | 
| 196 | December 31, 2003. The revenue cap for the year following the  | 
| 197 | initial fixed term of the base rate settlement agreement shall  | 
| 198 | be established by adding to the aforementioned threshold the  | 
| 199 | difference between the threshold and the cap amounts for 2003,  | 
| 200 | increased annually for the intermediate years by the average  | 
| 201 | growth rate in retail kilowatt hour sales for the 10-calendar- | 
| 202 | year period ending December 31, 2003. Thereafter, both the  | 
| 203 | revenue-sharing threshold and the cap shall increase annually by  | 
| 204 | the average annual growth rate in retail kilowatt hour sales for  | 
| 205 | the 10-calendar-year period ending December 31, 2003. | 
| 206 |      b.  Incremental revenues attributable to a business  | 
| 207 | combination or acquisition involving the public utility or to a  | 
| 208 | change in rates pursuant to paragraph (d) shall be excluded in  | 
| 209 | determining retail base rate revenues for purposes of revenue  | 
| 210 | sharing. | 
| 211 |      c.  For purposes other than reporting or assessing  | 
| 212 | earnings, such as cost recovery clauses and allowance for funds  | 
| 213 | used during construction, the public utility shall have an  | 
| 214 | authorized return-on-equity rate of 12 percent. | 
| 215 |      3.  The commission shall continue to review and approve the  | 
| 216 | public utility's costs and programs subject to the adjustment  | 
| 217 | clauses as it would in the absence of the adjustment clause  | 
| 218 | freeze. During the adjustment clause freeze, the utility may  | 
| 219 | allocate the total annual revenues from all adjustment clause  | 
| 220 | cost recovery factors combined among the adjustment clauses in a  | 
| 221 | manner that minimizes the year-end over-recovery or under- | 
| 222 | recovery balance in each individual clause. For any calendar  | 
| 223 | year in which the net year-end over-recovery or under-recovery  | 
| 224 | balance, after any discretionary adjustment to levelized  | 
| 225 | compliance cost recovery pursuant to paragraph (a), for the  | 
| 226 | utility's combined adjustment clauses in the aggregate is  | 
| 227 | projected to exceed 10 percent of the total costs subject to the  | 
| 228 | clauses, the commission shall make an adjustment to be  | 
| 229 | implemented through a separate credit or charge on customer  | 
| 230 | bills no later than the beginning of the following calendar  | 
| 231 | year. Any year-end over-recovery or under-recovery balance in  | 
| 232 | the utility's adjustment clauses for the final year of the cost  | 
| 233 | recovery period shall be trued up in the following year in  | 
| 234 | accordance with the commission's normal practice and procedure. | 
| 235 |      (c)  During the cost recovery period set forth in paragraph  | 
| 236 | (a), the public utility shall be allowed to: | 
| 237 |      1.  Recover through the capacity cost recovery mechanism of  | 
| 238 | the fuel and purchased power adjustment clause its annual  | 
| 239 | revenue requirements associated with any generating unit subject  | 
| 240 | to the Florida Electrical Power Plant Siting Act, ss. 403.501- | 
| 241 | 403.518, that is placed in service by the public utility during  | 
| 242 | such period. | 
| 243 |      2.  Suspend up to 100 percent of the annual accruals to its  | 
| 244 | reserves for the dismantlement and decommissioning of generating  | 
| 245 | facilities without limiting the utility's right to recover  | 
| 246 | through future accruals or otherwise the reasonable and prudent  | 
| 247 | costs of such dismantlement and decommissioning. | 
| 248 |      3.  Accelerate the amortization of regulatory assets  | 
| 249 | previously approved by the commission. | 
| 250 |      (d)  Notwithstanding the foregoing base rate and adjustment  | 
| 251 | clause freeze, the commission may take the following actions  | 
| 252 | consistent with the public interest, which shall not be  | 
| 253 | construed to impair the continued effectiveness of the  | 
| 254 | regulatory conditions provided in this subsection: | 
| 255 |      1.  Allow adjustments to the rates, defer costs or  | 
| 256 | revenues, or implement other remedial regulatory treatment of  | 
| 257 | the public utility to take into account one or more of the  | 
| 258 | following conditions occurring during the rate freeze period: | 
| 259 |      a.  Governmental action pursuant to any law, regulation,  | 
| 260 | rule, or order that results in significant cost reductions or  | 
| 261 | requires major expenditures. Such actions include, but are not  | 
| 262 | limited to, a requirement for the utility to alter its  | 
| 263 | structure, to divest itself of assets, to establish a regional  | 
| 264 | transmission organization, or to install pollution control  | 
| 265 | equipment solely for compliance purposes pursuant to a  | 
| 266 | settlement agreement entered into with or approved by a  | 
| 267 | government agency. | 
| 268 |      b.  Major expenditures to restore or replace property  | 
| 269 | damaged or destroyed by force majeure, including, but not  | 
| 270 | limited to, hurricanes, tropical storms, or tornadoes. | 
| 271 |      c.  The public utility's retail base rate earnings falling  | 
| 272 | below a 10-percent return on equity as reported on a commission- | 
| 273 | adjusted or pro forma basis on a monthly earnings surveillance  | 
| 274 | report. The public utility's achieved return on equity shall be  | 
| 275 | calculated based upon an adjusted equity ratio to the extent  | 
| 276 | provided for in the public utility's last base rate settlement  | 
| 277 | agreement approved by the commission. | 
| 278 |      d.  Changes in accounting requirements that substantially  | 
| 279 | affect the utility's recognition of revenues and expenses. | 
| 280 |      2.  Approve any reduction in base rates or base rate  | 
| 281 | charges requested by the public utility or approve any new or  | 
| 282 | revised tariff provisions or rate schedules requested by the  | 
| 283 | utility, provided that such tariff request does not increase any  | 
| 284 | existing base rate component of a tariff or rate schedule during  | 
| 285 | the period the base rate freeze is in effect unless the  | 
| 286 | application of such new or revised tariff or rate schedule is  | 
| 287 | optional to the utility's customers. | 
| 288 |      (e)  The Legislature finds that the regulatory conditions  | 
| 289 | established by this subsection provide the necessary and  | 
| 290 | appropriate recognition of the obligations imposed on a public  | 
| 291 | utility by the Air Quality Improvement Act and that such  | 
| 292 | conditions are therefore in the public interest. Notwithstanding  | 
| 293 | the other provisions of this subsection, in the event  | 
| 294 | circumstances arise which demonstrate that there will be a  | 
| 295 | substantial harm to the public interest, the commission may take  | 
| 296 | such action otherwise within its jurisdiction as it finds  | 
| 297 | necessary to prevent or mitigate such harm. | 
| 298 |      Section 3.  Section 403.0874, Florida Statutes, is created  | 
| 299 | to read: | 
| 300 |      403.0874  Emissions of nitrogen oxide, sulfur dioxide, and  | 
| 301 | particulate matter from certain electric generating units.-- | 
| 302 |      (1)  This section shall be known by the popular name the  | 
| 303 | "Air Quality Improvement Act." | 
| 304 |      (2)  As used in this section: | 
| 305 |      (a)  "Electric utility steam generating unit" means an  | 
| 306 | electric utility steam generating unit that has more than 100  | 
| 307 | megawatts of potential electric output capacity and supplies  | 
| 308 | more than one-third of such capacity to any utility power  | 
| 309 | distribution system for sale. | 
| 310 |      (b)  "Investor-owned public utility" means a public  | 
| 311 | utility, as defined in s. 366.02, that supplies electricity to  | 
| 312 | or for the public in this state. | 
| 313 |      (3)  An investor-owned public utility that on the effective  | 
| 314 | date of this act owns or operates coal-fired electric utility  | 
| 315 | steam generating units for which the collective emissions of  | 
| 316 | nitrogen oxide from all such coal-fired generating units were  | 
| 317 | between 32,000 tons and 36,000 tons in calendar year 2002, as  | 
| 318 | reported in the United States Environmental Protection Agency  | 
| 319 | clean air markets program database, shall not collectively emit  | 
| 320 | from all such coal-fired generating units more than 17,000 tons  | 
| 321 | of nitrogen oxide in calendar year 2010 or any calendar year  | 
| 322 | thereafter. | 
| 323 |      (4)  An investor-owned public utility that on the effective  | 
| 324 | date of this act owns or operates coal-fired electric utility  | 
| 325 | steam generating units for which the collective emissions of  | 
| 326 | sulfur dioxide from all such coal-fired generating units were  | 
| 327 | between 96,000 tons and 100,000 tons in calendar year 2002, as  | 
| 328 | reported in the United States Environmental Protection Agency  | 
| 329 | clean air markets program database, shall not collectively emit  | 
| 330 | from all such coal-fired generating units more than 50,000 tons  | 
| 331 | of sulfur dioxide in calendar year 2010 or any calendar year  | 
| 332 | thereafter. | 
| 333 |      (5)  An investor-owned public utility that on the effective  | 
| 334 | date of this act owns or operates residual oil and natural gas- | 
| 335 | fired or residual oil-fired electric utility steam generating  | 
| 336 | units for which the collective emissions of nitrogen oxide from  | 
| 337 | all such oil and gas-fired or oil-fired generating units  | 
| 338 | exceeded 11,000 tons in calendar year 2002, as reported in the  | 
| 339 | United States Environmental Protection Agency clean air markets  | 
| 340 | program database, shall not collectively emit from all such oil  | 
| 341 | and gas-fired or oil-fired generating units more than an annual  | 
| 342 | weighted average of 0.26 pounds of nitrogen oxide per million  | 
| 343 | BTUs of fuel consumed in calendar year 2010 or any calendar year  | 
| 344 | thereafter. | 
| 345 |      (6)  An investor-owned public utility that on the effective  | 
| 346 | date of this act owns or operates residual oil and natural gas- | 
| 347 | fired or residual oil-fired electric utility steam generating  | 
| 348 | units for which the collective emissions of particulates from  | 
| 349 | all such oil and gas-fired or oil-fired generating units  | 
| 350 | exceeded 7,000 tons in calendar year 2002, as reported in the  | 
| 351 | Annual Operating Reports of the investor-owned public utility  | 
| 352 | filed under Title V of the Clean Air Act, shall not collectively  | 
| 353 | emit from all such oil and gas-fired or oil-fired generating  | 
| 354 | units more than an annual weighted average of 0.030 pounds per  | 
| 355 | million BTUs of fuel consumed in calendar year 2012 or any  | 
| 356 | calendar year thereafter. | 
| 357 |      (7)  An investor-owned public utility to which this section  | 
| 358 | applies may determine how it will achieve compliance with the  | 
| 359 | collective air emissions limitations imposed by this section and  | 
| 360 | shall submit its compliance plan to the Department of  | 
| 361 | Environmental Protection no later than August 1 of the year this  | 
| 362 | section becomes effective. Within 30 days after such compliance  | 
| 363 | plan or any subsequent revised compliance plan is submitted, the  | 
| 364 | department shall certify whether the compliance plan or revised  | 
| 365 | compliance plan is capable of achieving the emissions  | 
| 366 | limitations required under this section. Compliance with the air  | 
| 367 | emissions limitations set out in this section does not alter any  | 
| 368 | obligation to comply with any other federal or state law,  | 
| 369 | regulation, or rule related to air quality or visibility. | 
| 370 |      (8)  The electric utility steam generating units that are  | 
| 371 | subject to the collective air emissions limitations set out in  | 
| 372 | this section on the effective date of this act shall remain  | 
| 373 | subject to the collective air emissions limitations regardless  | 
| 374 | of whether each individual generating unit thereafter continues  | 
| 375 | to be owned or operated by an investor-owned public utility. | 
| 376 |      (9)  The Department of Environmental Protection shall  | 
| 377 | expedite the issuance of any permit or modified permit to an  | 
| 378 | investor-owned public utility for electric utility steam  | 
| 379 | generating units subject to this section and shall include  | 
| 380 | conditions that provide for compliance with the requirements of  | 
| 381 | this section by incorporating the emissions limitations  | 
| 382 | contained herein and requiring testing, monitoring,  | 
| 383 | recordkeeping, and reporting adequate to ensure compliance  | 
| 384 | therewith. | 
| 385 |      Section 4.  This act shall take effect upon becoming a law. |