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 |
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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 |
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32 | Be It Enacted by the Legislature of the State of Florida: |
33 |
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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. |