§ 23-18-903 — Financing orders

(a) (1) A utility may petition the Arkansas Public Service Commission for a financing order. (2) For each petition as described in subdivision (a)(1) of this section, the utility shall: (A) Describe the storm recovery activities that the utility has undertaken or proposes to undertake and describe the reasons for undertaking the activities; (B) State the known storm recovery costs and estimate the costs of any storm recovery activities that are not completed or for which the costs are not yet known as identified and requested by the utility; (C) If applicable, state the level of the storm recovery reserve that the utility proposes to establish or replenish and has determined would be appropriate to recover through storm recovery bonds and is seeking to so recover and the level that the utility is funding or will seek to fund through other means, together with a description of the factors and calculations used in determining the amounts and methods of recovery; (D) (i) Indicate whether the utility proposes to finance all or a portion of the storm recovery costs and storm recovery reserve using storm recovery bonds. (ii) If the utility proposes to finance a portion of the costs, the utility shall identify that portion in the petition; (E) Estimate the financing costs related to the storm recovery bonds; (F) Estimate the storm recovery charges necessary to pay in full as scheduled the principal of, premium, if any, and interest on the proposed storm recovery bonds and related financing costs until the legal final maturity date of the proposed storm recovery bonds; (G) Estimate any cost savings from or demonstrate how rate impacts to customers would be mitigated as a result of financing storm recovery costs with storm recovery bonds in comparison with traditional utility financing or other traditional utility recovery methods; (H) File with the petition direct testimony supporting the petition; and (I) Facilitate a timely audit of all capital costs included within the storm recovery costs proposed to be financed by storm recovery bonds. (b) (1) (A) Proceedings on a petition submitted pursuant to subdivision (a)(1) of this section shall begin with a petition by a utility and shall be disposed of according to the commission's rules promulgated pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq., except that the provisions of this section, to the extent applicable, shall control. (B) Within seven (7) days after the filing of a petition, the commission shall publish a case schedule. The case schedule shall place the matter before the commission on an agenda that will permit a commission decision no later than one hundred twenty (120) days after the date the petition is filed. (C) (i) No later than one hundred thirty-five (135) days after the date the petition is filed, the commission shall issue a financing order or an order rejecting the petition. (ii) The commission shall issue a financing order authorizing financing of reasonable and prudent storm recovery costs, the storm recovery reserve amount determined appropriate by the commission, and financing costs if the commission finds that the issuance of the storm recovery bonds and the imposition of storm recovery charges authorized by the order are reasonably expected to result in lower overall costs or to mitigate rate impacts to customers as compared with traditional utility financing or other traditional utility recovery methods. (iii) Any determination of whether storm recovery costs are reasonable and prudent shall be made with reference to the general public interest in and the scope of effort required to provide the maintenance and safe and expeditious restoration of utility service. (2) In a financing order issued to a utility, the commission shall: (A) Specify the amount of storm recovery costs and the level of storm recovery reserves, taking into consideration, to the extent the commission deems appropriate, any other methods used to recover these costs, and describe and estimate the amount of financing costs which may be recovered through storm recovery charges, and specify the period over which the costs may be recovered; (B) Determine that the proposed structuring, expected pricing, and financing costs of the storm recovery bonds are reasonably expected to result in lower overall costs or would mitigate rate impacts to customers as compared with traditional utility financing or other traditional utility recovery methods; (C) Provide that, for the period specified pursuant to subdivision (b)(2)(A) of this section, the imposition and collection of storm recovery charges authorized in the financing order shall be nonbypassable and paid by all customers, subject to appropriate exclusions or adjustments to avoid the collection of natural gas costs from gas utility customers that do not purchase natural gas from the gas utility, receiving service from a utility or its successors or assignees under commission-approved rate schedules as provided in the financing order. An individual customer's monthly storm recovery charges shall be based upon the customer's then-current monthly billing determinants; (D) Determine what portion, if any, of the storm recovery reserves shall be held in a funded reserve and any limitations on how the reserve may be held, accessed, or used; (E) As necessary, include a formula-based mechanism for making expeditious periodic adjustments in the storm recovery charges that customers are required to pay under the financing order and for making any adjustments that are necessary to correct for any projected over-collection or under-collection of the charges or to otherwise ensure the timely payment as scheduled of storm recovery bonds and financing costs and other required amounts and charges payable in connection with the storm recovery bonds; (F) Specify the storm recovery property that is or shall be created in favor of a utility or its successors or assignees and that shall be used to pay or secure storm recovery bonds and financing costs; (G) Specify the degree of flexibility to be afforded to the utility in establishing the terms and conditions of the storm recovery bonds, including without limitation repayment schedules, interest rates, and other financing costs; (H) Provide the method by which storm recovery charges shall be allocated among the customer classes; (I) Provide that after the final terms of an issuance of storm recovery bonds have been established and before the issuance of storm recovery bonds, the utility shall determine the resulting initial storm recovery charge according to the financing order and the initial storm recovery charge shall be final and effective upon the issuance of the storm recovery bonds without further commission action; and (J) Include any other conditions that the commission considers appropriate and that are not otherwise inconsistent with this section. (c) (1) After the issuance of a financing order, the utility retains sole discretion regarding whether to cause the storm recovery bonds to be issued, including the right to defer or postpone the sale, assignment, transfer, or issuance, provided that the storm recovery bonds, other than refunding bonds, shall not be issued later than two (2) years from the date the financing order becomes final and nonappealable, or a later date as provided in the financing order, and provided further, that nothing herein shall prevent the utility, before the end of the two-year period, from abandoning the issuance of storm recovery bonds under the financing order, if this is in the best interest of ratepayers, by filing with the commission a statement of abandonment and the reasons therefore. (2) This subchapter does not limit the rights of the utility to recover its storm recovery costs under normal ratemaking should the storm recovery bonds not be issued. (d) (1) At the request of a utility, the commission may commence a proceeding and issue a subsequent financing order that provides for the refinancing, retiring, or refunding of storm recovery bonds issued pursuant to the original financing order if the commission finds that the subsequent financing order satisfies all of the criteria specified in subsection (b) of this section. (2) Effective on retirement of the refunded storm recovery bonds and the issuance of new storm recovery bonds, the commission may adjust the related storm recovery charges accordingly or establish substitute storm recovery charges. (3) Any financing order shall be issued within one hundred twenty (120) days of the application of a utility therefor. (e) All financing orders by the commission shall be operative and in full force and effect from the date of issuance by the commission. (f) (1) An aggrieved party or intervenor may within fifteen (15) days after the financing order or a supplemental order made by the commission becomes effective, or within fifteen (15) days from the date an application for rehearing is deemed to be denied as provided in § 23-2-422 , file in the Court of Appeals a petition stating the particular cause of objection to the order complained of. (2) Inasmuch as delay in the determination of the appeal of a financing order may delay the issuance of storm recovery bonds thereby diminishing savings or other benefits to customers which might be achieved if the bonds were issued as contemplated by a financing order, all the cases shall be given precedence over all other civil cases in the court and shall be heard and determined as speedily as possible. (g) A financing order issued to a utility may provide that creation of the utility's storm recovery property pursuant to subdivision (b)(2)(F) of this section is conditioned upon, and shall be simultaneous with, the sale or other transfer of the storm recovery property to an assignee and the pledge of the storm recovery property to secure storm recovery bonds. (h) (1) If the commission issues a financing order, the utility shall file with the commission at least annually a request for administrative approval applying the formula-based true-up mechanism to make the adjustments described in subdivision (b)(2)(E) of this section. (2) The review of a request described in subdivision (h)(1) of this section shall be limited to determining whether there is any mathematical error in the application of the formula-based mechanism relating to the appropriate amount of any projected over-collection or under-collection of storm recovery charges and the amount of an adjustment. (3) The adjustments shall ensure the recovery of revenues sufficient to provide for the payment of principal, interest, acquisition, defeasance, financing costs, or redemption premium and other fees, costs, and charges in respect of storm recovery bonds approved under the financing order. (4) Within fifteen (15) days after receiving a utility's request under subdivision (h)(1) of this section, the commission shall either administratively approve the request or inform the utility of any mathematical errors in its calculation. (5) If the commission informs the utility of mathematical errors in its calculation, the utility may correct its error and refile its request. (6) The time frames previously described in this subsection shall apply to a refiled request. (i) Subsequent to the earlier of the transfer of storm recovery property to an assignee or the issuance of storm recovery bonds authorized thereby, a financing order is irrevocable, and except as provided in subsections (d) and (h) of this section, the commission may not amend, modify, or terminate the financing order by any subsequent action or reduce, impair, postpone, terminate, or otherwise adjust storm recovery charges approved in the financing order.

Legislative History

Amended by Act 2021, No. 641,§ 1, eff. 4/12/2021. Amended by Act 2019, No. 315,§ 2485, eff. 7/24/2019. Acts 2009, No. 729, § 1.