Opinion

Entergy Texas, Inc.// Office of Public Utility Counsel and Public Utility Commission of Texas v. Public Utility Commission of Texas and Texas Industrial Energy Consumers// Office of Public Utility Counsel and Entergy Texas, Inc.

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Mar 31, 2015
Status
Published
Cited by
0 cases
Authority
More cited than 3.1%

The opinion

ACCEPTED

03-14-00735-CV

4711647

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/31/2015 2:04:20 PM

JEFFREY D. KYLE

CLERK

FILED IN

NO. 03-14-00735-CV 3rd COURT OF APPEALS

AUSTIN, TEXAS

3/31/2015 2:04:20 PM

JEFFREY D. KYLE

Clerk

ENTERGY TEXAS, INC., ET AL.,

Appellants,

v.

PUBLIC UTILITY COMMISSION OF TEXAS, INC., ET AL.,

Appellees.

B RIEF OF A PPELLANT

Filed by: Public Utility Commission of Texas

KEN PAXTON JON NIERMANN

Attorney General of Texas Chief, Environmental Protection

Division

CHARLES E. ROY

First Assistant Attorney General ELIZABETH R. B. STERLING

Assistant Attorney General

JAMES E. DAVIS State Bar No. 19171100

Deputy Attorney General for elizabeth.sterling@texasattorneygeneral.gov

Civil Litigation

Environmental Protection Division

P.O. Box 12548, MC-066

Austin, Texas 78711-2548

512.463.2012

512.457.4616 (fax)

March 31, 2015

Oral Argument Requested

Identity of Parties and Counsel

Party Counsel

Entergy Texas, Inc., Plaintiff in the Marnie A. McCormick

district court, Appellant and Patrick J. Pearsall

Appellee in this Court Duggins Wren Mann & Romero,

LLP

P. O. Box 1149

Austin, Texas 78767-1149

512.744.9300

512.744.9399 (fax)

mmccormick@dwmrlaw.com

ppearsall@dwmrlaw.com

Cities of Anahuac, Beaumont, Daniel J. Lawton

Bridge City, Cleveland, Conroe, The Lawton Law Firm, P.C.

Dayton, Groves, Houston, 12600 Hill Country Blvd.,

Huntsville, Montgomery, Navasota, Ste. R-275

Nederland, Oak Ridge North, Austin, TX 78738

Orange, Pine Forest, Rose City, 512.322.0019

Pinehurst, Port Arthur, Port 855.298.7978 (fax)

Neches, Shenandoah, Silsbee, Sour dlawton@ecpi.com

Lake, Splendora, Vidor, and West (in district court, also Stephen

Orange, Plaintiffs in the district Mack)

court and Interested Parties before

this Court

Office of Public Utility Counsel, Sara J. Ferris

Plaintiff in the district court and Assistant Public Counsel

Appellant before this Court Office of Public Utility Counsel

P.O. Box 12397

Austin, Texas 78711-2397

512.936.7500

512.936.7520 (fax)

sara.ferris@opuc.texas.gov

i

State Agencies, Plaintiffs in the Katherine H. Farrell

district court and Interested Parties Assistant Attorney General

before this Court Administrative Law Division

Energy Rates Section

Office of the Attorney General

P.O. Box 12548, MC 018-12

Austin, Texas 78711-2548

512.475.4237

512.320.0167 (fax)

katherine.farrell@texasattorneygen

eral.gov

(in district court, Susan M. Kelley

and Bryan L. Baker)

Texas Industrial Energy Rex VanMiddlesworth

Consumers, Intervenors in the Benjamin Hallmark

district court and Interested Parties Thompson & Knight LLP

before this Court 98 San Jacinto Blvd., Ste. 1900

Austin, Texas 78701

512.469.6100

512.469.6180 (fax)

rex.vanm@tklaw.com

benjamin.hallmark@tklaw.com

(in district court, Meghan Griffiths

at Andrews Kurth LLP)

ii

Public Utility Commission of Texas, Ken Paxton

Defendant in the district court, Attorney General of Texas

Appellant and Appellee before this (in district court, Greg Abbott)

Court

Charles E. Roy

First Assistant Attorney General

(in district court, Daniel Hodge)

James E. Davis

Deputy Attorney General for Civil

Litigation

(in district court, John B. Scott)

Jon Niermann

Chief, Environmental Protection

Division

Assistant Attorneys General:

Elizabeth R. B. Sterling

John R. Hulme

Daniel C. Wiseman

Megan Neal

Environmental Protection Division

Office of the Attorney General

P.O. Box 12548, MC-066

Austin, Texas 78711-2548

512.463.2012

512.457.4616 (fax)

iii

Table of Contents

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Glossary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

In a Fuel Reconciliation, the Commission determines the actual

reasonable and necessary amount that a utility spent on fuel

expenses. Do the Commission’s rules allow it to use a

contemporaneous line-loss study to determine how much

electricity was lost from the generator to the end user so that

the Commission can accurately determine how much the utility

had to spend on fuel to generate electricity for retail

customers? .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The Commission uses a two-step process for a utility to

recover fuel expenses: first the Commission sets a

temporary rate called a fuel factor, and later the

Commission conducts a Fuel Reconciliation where the

actual fuel expenses that the utility may recover from

ratepayers are finally determined.. . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Entergy asked to reconcile fuel expenses for July 2009

through June 2011, but wanted to use an old 1997 line-

loss study rather than the contemporaneous 2010 line-

loss study.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

iv

1. Entergy asked to reconcile fuel expenses for a two-

year period from July 2009 through June 2011.. . . . . . . 3

2. Because some electricity is lost as it travels over

wires, the utility must perform a line-loss study to

account for the total amount that must be generated

to meet demand... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Cities argued that the contemporaneous line-loss study

would show actual fuel costs incurred during the

reconciliation period, and that contemporaneous line-loss

study showed that $4 million of fuel costs Entergy

assigned to retail ratepayers were incurred to serve

wholesale customers... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

D. The Commission decided that the contemporaneous line-

loss study should be used... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

E. Three Commission rules apply to a utility’s recovery of

fuel expenses: Rule 25.235, Rule 25.236, and Rule

25.237... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

F. The district court reversed the Commission’s decision

about using the contemporaneous line-loss study.. . . . . . . . . . 9

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. The Commission’s Order complies with its rules. . . . . . . . . . . 12

1. Rule 25.236(d) applies to this Fuel Reconciliation

and authorizes the Commission’s decision.. . . . . . . . . . . 12

2. None of the rules cited by the district court apply to

the Fuel Reconciliation in this case... . . . . . . . . . . . . . . . . 14

v

a. Rule 25.236(e)(3) does not apply to this Fuel

Reconciliation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

b. Rule 25.237(a) does not apply to a Fuel

Reconciliation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

c. Rule 25.237(c)(2)(B) does not apply to a Fuel

Reconciliation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. Entergy has not shown prejudice to its substantial rights.. . . . 18

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDICES

District Court Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

Commission Order.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B

ALJ’s Proposal for Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C

Entergy’s Statement of Intent and Application for Authority to Change

Rates and Reconcile Fuel Costs (pages 1–12). . . . . . . . . . . . . . . . . . . . D

Rules:

16 Tex. Admin. Code § 25.235.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E

16 Tex. Admin. Code § 25.236. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F

16 Tex. Admin. Code § 25.237.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G

vi

Index of Authorities

Cases Page(s)

CenterPoint Energy Houston Elec., LLC v. Pub. Util. Comm’n,

212 S.W.3d 389 (Tex. App.—Austin 2006, pet. granted, judgm’t

vacated w.r.m.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

El Paso Elec. Co. v. Pub. Util. Comm’n,

917 S.W.2d 846 (Tex. App.—Austin 1995, writ dism’d by agr.).. . . 18

Gulf States Utils. Co. v. Pub. Util. Comm’n,

841 S.W.2d 459 (Tex. App.—Austin 1992, writ denied).. . . . . . . . . 19

Lewis v. Jacksonville Bldg. & Loan Ass’n,

540 S.W.2d 307 (Tex. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pub. Util. Comm’n v. Gulf States Utils. Co.,

809 S.W.2d. 201 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pub. Util. Comm’n v. Tex. Utils. Elec. Co.,

935 S.W.2d 109 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

RepublicBank Dallas, N.A. v. Interkal, Inc.,

691 S.W.2d 605 (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Rodriguez v. Serv. Lloyds Ins. Co.,

997 S.W.2d 248 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sw. Pharmacy Solutions, Inc. v. Tex. Health and Human Servs.,

408 S.W.3d 549 (Tex. App.—Austin 2013, pet. denied). . . . . . . . . 11

State v. Pub. Util. Comm’n,

883 S.W.2d 190 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. Bd. Of Chiropractic Exam’rs v. Tex. Med. Ass’n,

375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied).. . . . . . 11, 12

vii

Cases cont’d Page(s)

Tex. Utils. Elec. Co. v. Pub. Util. Comm’n,

881 S.W.2d 387 (Tex. App.—Austin 1994). . . . . . . . . . . . . . . . . . . . . 1

Statutes

Tex. Gov’t Code

§§ 2001.001–.902. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

§ 2001.174(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Rules

16 Tex. Admin. Code

§§ 25.235-25.237.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

§ 25.236(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

§ 25.236(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

§ 25.236(d)(1)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 19

§ 25.236(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9, passim

§ 25.236(e)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

§ 25.237(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

§ 25.237(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16

§ 25.237(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 3, 9

§ 25.237(a)(3)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

§ 25.237(a)(3)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

§ 25.237(c)(2)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

viii

Glossary

ALJ Administrative Law Judge

APA Administrative Procedure Act, Tex. Gov’t Code

§§ 2001.001–.902.

Cities Cities of Anahuac, Beaumont, Bridge City,

Cleveland, Conroe, Dayton, Groves, Houston,

Huntsville, Montgomery, Navasota, Nederland, Oak

Ridge North, Orange, Pine Forest, Rose City,

Pinehurst, Port Arthur, Port Neches, Shenandoah,

Silsbee, Sour lake, Splendora, Vidor, and West

Orange, Texas These cities are in the service area of

Entergy Texas, Inc.

Commission or PUC Public Utility Commission of Texas

Entergy Entergy Texas, Inc., the utility that asked the

Commission to reconcile fuel expenses in this case

ERCOT Electric Reliability Council of Texas

Fuel Factor A temporary rate set by the Commission to recover

the utility’s fuel costs See 16 Tex. Admin. Code

§ 25.237(a)(3).

Fuel Reconciliation After the utility has collected for fuel costs using the

Fuel Factor, it returns to the Commission to

reconcile actual fuel costs with amounts recovered

under the Fuel Factor. See 16 Tex. Admin. Code

§ 25.236(b).

Line Losses Electricity that the utility generates but is “lost” as it

travels along the wires from the generator to the

customer; more electricity is generated than is

metered where it is used

Order The Commission’s order on rehearing that is the

subject of this lawsuit. (AR, Item 244.)

ix

PFD Proposal for Decision prepared by the ALJ in this

case (AR, Item 185.)

x

Statement of the Case

Entergy Texas, Inc., an electric utility in the southeastern part of the

state, together with several groups of its customers, filed an administrative

appeal of the Public Utility Commission’s order setting rates for Entergy.

The district court affirmed the Commission’s order on all but one issue.

The Commission appeals on that issue; several other parties are appealing

different issues.

Statement Regarding Oral Argument

Each of the three appellants in this rate case bring separate issues.

Looking at the entire case, the number of parties, the number of issues, and

the complexity of many of the issues, oral argument would help the Court.

Issue Presented

In a Fuel Reconciliation, the Commission determines the actual reasonable

and necessary amount that a utility spent on fuel expenses. Do the

Commission’s rules allow it to use a contemporaneous line-loss study to

determine how much electricity was lost from the generator to the end user

so that the Commission can accurately determine how much the utility had

to spend on fuel to generate electricity for retail customers?

xi

Statement of Facts

Although the Commission set base rates and determined a Fuel

Reconciliation in its Order, the Commission’s sole appellant’s issue

concerns Entergy fuel costs for retail service.

A. The Commission uses a two-step process for a utility to

recover fuel expenses: first the Commission sets a

temporary rate called a fuel factor, and later the

Commission conducts a Fuel Reconciliation where the

actual fuel expenses that the utility may recover from

ratepayers are finally determined.

Because fuel costs are so volatile and such a large part of an electric

utility’s expenses,1 the Commission sets a temporary rate called a Fuel

Factor but determines the actual amount that the utility should have

recovered for fuel expenses in a later Fuel Reconciliation. The practice is so

long-standing that this Court recognized it in a 1994 case that discussed

reconciling fuel costs dating back to 1983. See Tex. Utils. Elec. Co., v. Pub.

Util. Comm’n , 881 S.W.2d 387, 411–12 (Tex. App.—Austin 1994) aff’d in

1

For example, in this case, Entergy estimated that its over-recovery balance

was $243,339,353. SAR, Item 1 at 9. The administrative record in this case was

admitted into evidence as Joint Exhibits Nos. 1 through 13. R.R. at 5:11–5:19. Exhibits

1–3 are indices to the administrative record. Exhibits 4–10 and 13 include seven

volumes of filings, which are referenced as “item”; thirty-five volumes of exhibits; and

one transcript. Citations to that part of the Administrative Record will be in the form

“AR, Item(s) ___,” for filings, “AR, ___ Ex(s). ___,” for exhibits, and “AR, Tr. at ___”

for transcripts. Exhibits 11 and 12 contain Entergy’s entire rate-filing package. They are

two boxes containing six items numbered 1–6. Because different documents are

numbered 1–6 in the other parts of the administrative record, citations to the

Supplemental Administrative Record will be in the form “SAR, Item(s) ___.”

1

part, rev’d in part sub nom. Pub. Util. Comm’n v. Tex. Utils. Elec. Co., 935

S.W.2d 109 (Tex. 1997). This Court explained: “Fuel reconciliation is a

term used to describe periodic adjustments to a utility’s fuel costs made to

account for the difference between previously anticipated costs and actual,

reasonable costs incurred. The Commission makes these adjustments on a

periodic basis because of the practical difficulty of deciding a new rate case

with each variation in fuel prices.” The two-step process allows the utility

to recover its reasonable fuel expenses and not over-recover for those

costs.2

Without the Fuel Factor followed by a reconciliation, either the utility

might lose a significant amount because the rates in place assumed much

too low a fuel cost or the ratepayers might have paid exorbitant rates

because the rates in place assumed much too high a fuel price. And if fuel

costs were included in regular rates, the rule against retroactive ratemaking

would prohibit the Commission from determining whether the utility had

recovered too much or too little.3 The Commission avoids these problems

2

16 Tex. Admin. Code § 25.236(d)(2) (“The scope of a fuel reconciliation

proceeding includes any issue related to determining the reasonableness of the electric

utility’s fuel expenses during the reconciliation period and whether the electric utility

has over- or under-recovered its reasonable fuel expenses.”).

3

The rule against retroactive ratemaking “prohibits a utility commission from

making a retrospective inquiry to determine whether a prior rate was reasonable and

imposing a surcharge when rates were too low or a refund when rates were too high.”

State v. Pub. Util. Comm’n, 883 S.W.2d 190, 199 (Tex. 1994).

2

by setting a temporary rate called a Fuel Factor.4 Periodically, the utility

returns for a Fuel Reconciliation, where the Commission reconciles the

amounts the utility received under the Fuel Factor with the actual,

reasonable expenses it incurred for fuel to generate electricity for retail

customers. The utility can then ask to refund any over-recovery or

surcharge any under-recovery.5 In effect, the Fuel Factor is a forward-

looking, estimated rate and the reconciliation determines the actual rate.

B. Entergy asked to reconcile fuel expenses for July 2009

through June 2011, but wanted to use an old 1997 line-loss

study rather than the contemporaneous 2010 line-loss

study.

1. Entergy asked to reconcile fuel expenses for a two-year

period from July 2009 through June 2011.

Entergy’s application to change rates and reconcile fuel costs6 (its

“pleading” before the Commission) includes several statements important

to this appeal.

4

See 16 Tex. Admin. Code § 25.237(a)(3).

5

16 Tex. Admin. Code § 25.237(a)(3)(A) (“The reasonableness of the fuel costs

that an electric utility has incurred will be periodically reviewed in a reconciliation

proceeding, as described in §25.236 of this title, and any disallowed costs resulting from

a reconciliation proceeding will be reflected in the calculation of the utility’s recoverable

fuel and over/(under) collections.”).

6

SAR, Item 1. A copy without exhibits is attached as Appendix D.

3

• Entergy asked, pursuant to Rule 25.236 to reconcile its fuel and

purchased power costs to its Fuel Factor revenues during the

Reconciliation Period,7 but Entergy did not ask to change its Fuel Factor.

• Entergy’s Reconciliation Period for this case is a two-year period—July

2009 through June 2011.8

• Entergy’s fuel-reconciliation request applies only to retail customers:

“This Application will affect all of [Entergy]’s retail customers taking

service under its fixed fuel factor (‘Schedule FF’) by reconciling the fuel

and purchased power costs incurred and the fuel factor revenue received

in providing service to these customers during the Reconciliation

Period.”9

• Entergy asked to postpone refunds or surcharges even though the utility

estimated that it had over-recovered $243 million during the

reconciliation period: “[Entergy] does not seek to implement a refund

or surcharge of eligible fuel or purchased power costs at the conclusion

of this case; rather, [Entergy] proposes to roll any ending fuel balances

7

SAR, Item 1 at 8.

8

SAR, Item 1 at 1 (“Reconciliation Period from July 1, 2009 to June 30, 2011”);

see also AR, Item 244 (Order) FF 214. In the Order, findings of fact will be cited as

“FF__” and conclusions of law will be cited as “CL __.” A copy of the Order is attached

as Appendix B.

9

SAR, Item 1 at 8 (emphasis added).

4

forward to serve as the beginning balance for the next Reconciliation

Period.”10 Thus, the Commission’s Order does not include refunds.

2. Because some electricity is lost as it travels over wires, the

utility must perform a line-loss study to account for the

total amount that must be generated to meet demand.

To recover all of its fuel costs, a utility must account for line losses

because not all the electricity generated reaches the utility’s customers;

some is “lost” as electricity travels over wires from generation to

consumption. The Commission’s Rule 25.237 explains that “[f]uel factors

must account for system losses and for the difference in line losses

corresponding to the voltage at which the electric service is provided.”11

Entergy did not use the line-loss study conducted during the

reconciliation period to calculate actual fuel costs during that period; it

used one thirteen years older. The utility conducted a line-loss study for

the calendar year 2010—the middle of the 24-month reconciliation period

of July 2009 through June 2011. 12 Thus, this study showed actual Fuel

Reconciliation during the reconciliation period. But Entergy proposed to

10

Id. at 9 (emphasis added).

11

16 Tex. Admin. Code § 25.237(a)(1).

12

AR, Order at 9.

5

determine fuel expenses for retail customers using a line-loss study

performed in 1997.13

C. Cities argued that the contemporaneous line-loss study

would show actual fuel costs incurred during the

reconciliation period, and that contemporaneous line-loss

study showed that $4 million of fuel costs Entergy assigned

to retail ratepayers were incurred to serve wholesale

customers.

Cities, parties in the rate case, argued that the fuel costs incurred during

the reconciliation period should reflect the contemporaneous line-loss

study.14 Cities calculated that, using the current line-loss study, retail

customers paid nearly $4 million for fuel expenses that were not incurred

to serve retail customers. Cities’ witness Nalepa testified: “[Entergy]’s own

analysis demonstrates that adjusting the allocation of fuel costs over the

reconciliation period to reflect the actual line losses for each voltage level

for the reconciliation period results in retail customers subsidizing

wholesale customers by approximately $3.98 million.”15

13

AR, Order at 9.

14

AR, Item 161 at 88–90 (Cities Initial Br.).

15

AR, Cities’ Ex. 6 at 44 ll.14–18.

6

D. The Commission decided that the contemporaneous line-

loss study should be used.

Although the ALJ proposed using the out-of-date 1997 line-loss study,

the Commission used the contemporaneous 2010 line-loss study to

determine fuel costs for service to retail customers during the reconciliation

period.16 The Commission recognized that Entergy used the 2010 line-loss

study to calculate the demand- and energy-related allocations the utility

relied on for new base rates it asked the Commission to set. The

Commission opined that those same, currently available line-loss factors

should have been utilized in Entergy’s Fuel Reconciliation.17 The

Commission found that using Entergy’s 2010 line-loss factors resulted in

$3,981,271 less in actual fuel costs that Entergy incurred to serve retail

customers during the reconciliation period. The Commission added the

following two conclusions of law to the ALJ’s proposed conclusions:

19A. Fuel factors under P.U.C. SUBST. R. 25.237(a)(3) are temporary

rates subject to revision in a reconciliation proceeding.

19B. P.U.C. SUBST. R. 25.236(d)(2) defines the scope of a fuel

reconciliation proceeding to include any issue related to the

reasonableness of a utility’s fuel expenses and whether the

utility has over- or under-recovered its reasonable fuel

expenses. It is proper to use the new line-loss study to calculate

Entergy’s fuel reconciliation and over-recovery.

16

AR, Order at 9.

17

AR, Order at 9.

7

Entergy claimed that the Commission’s Order was contrary to the

Commission’s rules.18

E. Three Commission rules apply to a utility’s recovery of fuel

expenses: Rule 25.235, Rule 25.236, and Rule 25.237.

Three Commission rules address a utility’s recovery of fuel expenses:

Rule 25.235 entitled “Fuel Costs — General,” Rule 25.236 entitled

“Recovery of Fuel Costs,” and Rule 25.237, entitled “Fuel Factors.”19

Rule 25.235 explains the purpose for the system of allowing a utility to

recover its fuel costs through a Fuel Factor with periodic reconciliations.

Rule 25.236 explains that the Commission’s authority in a Fuel

Reconciliation proceeding is broad. “The scope of the proceeding below

allows consideration of ‘any issue related to determining the

reasonableness of the electric utility’s fuel expenses during the

reconciliation period.’” CenterPoint Energy Houston Elec., LLC v. Pub.

Util. Comm’n, 212 S.W.3d 389, 399 (Tex. App.—Austin 2006, pet. granted,

judgm’t vacated w.r.m.) (quoting 16 Tex. Admin. Code § 25.236(d)(2)).

That same rule explains that the scope of a reconciliation proceeding

18

Id.

19

16 Tex. Admin. Code §§ 25.235–25.237. Copies are attached as Appendices

E–G.

8

includes: “whether the electric utility has over- or under-recovered its

reasonable fuel expenses.”20

Rule 25.237 recognizes that Fuel Factors “are temporary rates … .”21 The

electric utility’s collection of revenues by Fuel Factors is subject to

adjustments. “To the extent that there are variations between the fuel costs

incurred and the revenues collected, it may be necessary or convenient to

refund overcollections or surcharge undercollections.”22

F. The district court reversed the Commission’s decision about

using the contemporaneous line-loss study.

In the administrative appeal of Entergy’s rates, the district court affirmed

the Commission on most issues, but it reversed on this one. The district

court’s judgment states:

Entergy’s Point of Error No. 1 addressing the use of a current line loss

study rather that a prior-approved line loss study in allocating line

loss costs among classes of customers establishes that the Commission

erred in applying the current study in violation of Commission rules

found at 16 TAC §25.236(e)(3) and 16 TAC 25.237(a) and (c)(2)(B).

Accordingly, the Court FINDS that the PUC’s ruling was arbitrary and

capricious and constitutes an error of Law. The Court REVERSES

such ruling and REMANDS this matter to the Commission for further

proceedings consistent with this Court’s Order.23

20

16 Tex. Admin. Code 25.236(d)(2).

21

16 Tex. Admin. Code § 25.237(a)(3).

22

16 Tex. Admin. Code § 25.237(a)(3)(B).

23

C.R. at 2118.

9

The Commission appeals the district court’s holding.

Summary of the Argument

None of the rules that were cited by the district court apply to the Fuel

Reconciliation the Commission performed. Because Entergy did not ask the

Commission to change its Fuel Factor, the two provisions of Rule 25.237

about setting a Fuel Factor do not apply. Because Entergy did not ask the

Commission to award refunds, Rule 25.236(e)(3) about how to allocate

refunds does not apply. Moreover, because Rule 25.236(e)(3) applies only

to Entergy’s retail rate classes, it does not concern allocating fuel costs

between retail and wholesale service. Thus, the district court erred to find

that the Commission’s order violated those inapplicable rules.

The Commission’s Order complies with the applicable rules. Rule

25.236(d) requires that the utility recover only reasonable and necessary

fuel costs to serve retail customers. Thus, the Commission reasonably

applied line-losses based on the line-loss study done contemporaneously

with the reconciliation period. That showed that $4 million of the fuel costs

Entergy wanted to recover were actually wholesale fuel costs that should not

be imposed on retail customers.

Moreover, Entergy has failed to show harm. It claims that it will be

harmed if it is not allowed to allocate the $4 million to retail customers

10

based on the 1997 line-loss study but fails to show that it does not collect

that $4 million from wholesale customers.

Argument

A. Standard of Review

“The Commission’s interpretation of its own regulations is entitled to

deference by the courts.” Pub. Util. Comm’n v. Gulf States Utils. Co., 809

S.W.2d 201, 207 (Tex. 1991). Courts “construe administrative rules, which

have the same force as statutes, in the same manner as statutes. ”

Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999) (citing

Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 310 (Tex.

1976).). Therefore, the courts look first to the plain language of the rule.

“Unless the rule is ambiguous, we follow the rule’s clear language.”

Rodriguez, 997 S.W.2d at 254 (citing RepublicBank Dallas, N.A. v.

Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985)). But courts “defer to an

agency’s interpretation of its own rules unless it is plainly erroneous or

contradicts the text of the rule or underlying statute.” Sw. Pharmacy

Solutions, Inc. v. Tex. Health & Human Servs., 408 S.W.3d 549, 558 (Tex.

App.—Austin 2013, pet. denied) (citing Pub. Util. Comm’n v. Gulf States

Utils. Co., 809 S.W.2d at 207); see also Tex. Bd. of Chiropractic Exam’rs v.

11

Tex. Med. Ass’n, 375 S.W.3d 464, 475 (Tex. App.—Austin 2012, pet.

denied).

B. The Commission’s Order complies with its rules.

The Commission’s decision complies with its applicable rules. By their

plain language, the rules cited in the district court’s judgment do not apply

to this proceeding. Commission rules that do apply support the

Commission’s order.

1. Rule 25.236(d) applies to this Fuel Reconciliation and

authorizes the Commission’s decision.

The applicable Commission rule requires the Commission to determine

whether Entergy over- or under-recovered retail fuel costs. Rule

25.236(d)(2) states: “The scope of a fuel reconciliation proceeding includes

any issue related to determining the reasonableness of the electric utility’s

fuel expenses during the reconciliation period and whether the electric

utility has over- or under-recovered its reasonable fuel expenses.”24

Because Entergy was reconciling fuel costs and revenues that affect only its

retail customers,25 the question is whether Entergy “over-or under-

recovered its reasonable fuel expenses”26 incurred to serve retail customers.

24

16 Tex. Admin. Code § 25.236(d)(2).

25

SAR, Item 1 at 8.

26

16 Tex. Admin. Code § 25.236(d)(2).

12

The plain language of Rule 25.236(d)(1)(A) also shows that only retail fuel

expenses should be considered. The rule limits the Fuel Reconciliation to

expenses incurred to service retail customers stating: “In a proceeding to

reconcile fuel factor revenues and expenses, an electric utility has the

burden of showing that: (A) its eligible fuel expenses during the

reconciliation period were reasonable and necessary expenses incurred to

provide reliable electric service to retail customers.”27

By using the contemporaneous line-loss study, the Commission followed

those rules; it limited eligible fuel expenses to those incurred to serve retail

customers. Entergy, by using the out-of-date line-loss study, allocated to

retail customers nearly $4 million of fuel expenses that were actually

incurred to provide electricity to wholesale customers. The $4 million was

spent for fuel expenses Entergy incurred to generate electricity that was

lost transmitting electricity to wholesale customers. Fuel expenses to serve

wholesale customers are not “reasonable and necessary expenses incurred

to provide reliable electric service to retail customers.”28 Thus, the

Commission complied with its applicable rules by refusing to include those

wholesale fuel costs in the reconciliation.

27

16 Tex. Admin. Code § 25.236(d)(1)(A) (emphasis added).

28

Id.

13

2. None of the rules cited by the district court apply to the

Fuel Reconciliation in this case.

None of the rules cited by the district court apply to the Fuel

Reconciliation in this case. The district court’s judgment cited Rules

25.236(e)(3), 25.237(a), and 25.237(c)(B). By their plain language, the two

cited sections of Rule 25.237 apply to setting Fuel Factors—temporary fuel

rates—not to a Fuel Reconciliation where the Commission determines the

actual, final fuel rates. Because the Commission reconciled Entergy’s fuel

expenses but did not set a new Fuel Factor, Rule 25.237 cannot apply.

The cited provision in Rule 25.236 applies to “interclass allocations” of

refunds or surcharges in a Fuel Reconciliation. For two reasons, the plain

language of that rule does not apply. First, it addresses refunds and

surcharges, but Entergy specifically asked not to implement a refund or

surcharge in this case, but to postpone it to a later docket.29 Second,

“interclass allocations” refers to the retail rate classes for which the

Commission is determining an over- or under-recovery of fuel costs.

Because none of them are wholesale rate classes, the rule, by its plain

language, does not apply to a decision that $4 million was incurred for

service to wholesale rather than retail ratepayers.

29

SAR, Item 1, at 9.

14

a. Rule 25.236(e)(3) does not apply to this Fuel

Reconciliation.

Rule 25.236(e)(3) refers to “[i]nterclass allocations of refunds and

surcharges … .”30 But Entergy specifically asked to postpone refunding the

over-collected fuel expenses to a subsequent proceeding;31 there were no

refunds or surcharges in this proceeding. Thus, the plain language of Rule

25.236(e)(3) does not apply to this case.

In addition, the term “interclass allocations” in the rule applies to the

classes of customers included in Fuel-Factor rates that the Commission set.

Because the Commission does not set rates for Entergy’s wholesale

customers, the rule, by its plain language, does not apply to Entergy’s

wholesale customers. Thus, the Rule in no way prevents the Commission

from deciding that the contemporaneous line-loss study should be used to

decide whether the fuel costs were incurred for retail customers or for

wholesale customers. For this separate reason, the plain language of the

rule makes it inapplicable to this proceeding. The district court erred by

finding that the Commission violated this rule when it decided the Fuel

Reconciliation in this case.

30

Tex. Admin. Code § 25.236(e)(3) (emphasis added).

31

SAR, Item 1 at 9; AR, Item 185 at 320.

15

b. Rule 25.237(a) does not apply to a Fuel Reconciliation.

Rule 25.237(a) does not apply to this case because it addresses only Fuel

Factors. By its plain language, it does not apply to this Fuel Reconciliation.

A Fuel Factor is the forward-looking estimated rate; the reconciliation sets

the actual rate.

The reference to line losses in Rule 25.237(a) says nothing about how to

determine line losses in a Fuel Reconciliation. By requiring a Fuel Factor

to “account for system losses and for the difference in fuel reconciliation

corresponding to the voltage at which the electric service is provided,” Rule

25.237(a)(1) merely recognizes the importance of a line-loss study to

determine whether a utility has over- or under-recovered its fuel expenses.

The district court erred to find that the Commission violated this rule

about Fuel Factors when it decided the Fuel Reconciliation in this case.

c. Rule 25.237(c)(2)(B) does not apply to a Fuel

Reconciliation.

Rule 25.237(c)(2)(B) also applies only to Fuel Factors, not Fuel

Reconciliations. Thus, by its plain language, the rule does not apply to this

Fuel Reconciliation.

Similar to the rule above, the reference to line losses in Rule

25.237(c)(2)(B) says nothing about how to determine line losses in a Fuel

Reconciliation. To the extent that this Fuel-Factor rule mentions a line-loss

16

study, it shows how important a line loss is to determine the amount of fuel

expenses. The rule states that “the proposed fuel factors utilize a

commission-approved adjustment to account for line losses corresponding

to the voltage at which the electric service is provided.”32

The district court erred to find that the Commission violated this Fuel-

Factor rule when it decided the Fuel Reconciliation in this case.

Thus, the Commission cannot have violated Rules 25.236(e)(3),

25.237(a), and 25.237(c)(B) because, by their plain language, they do not

apply to this case. And the Commission complied with Rule 25.236(d),

which does apply. That rule explains that “[t]he scope of a fuel

reconciliation proceeding includes any issue related to determining the

reasonableness of the electric utility’s fuel expenses during the

reconciliation period and whether the electric utility has over- or under-

recovered its reasonable fuel expenses.”33 The Commission’s Order

complied with the applicable rule; it allowed Entergy to collect only for the

fuel expenses actually incurred to serve retail customers. The Commission

reasonably interpreted its rules, and that interpretation should be affirmed

by the Court.

32

16 Tex. Admin. Code § 25.237(c)(2)(B).

33

16 Tex. Admin. Code § 25.236(d)(2).

17

C. Entergy has not shown prejudice to its substantial rights.

The district court also erred in reversing the Commission’s fuel-

reconciliation decision because Entergy made no showing that the

Commission’s decision will harm Entergy, and showing prejudice to

substantial rights is a requirement for a plaintiff to prevail in a suit for

judicial review of an agency’s order. Tex. Gov’t Code § 2001.174(2)

(directing the court to “reverse or remand the case for further proceedings

if substantial rights of the appellant have been prejudiced” for stated

reasons) (emphasis added); El Paso Elec. Co. v. Pub. Util. Comm’n, 917

S.W.2d 846, 857 n.6 (Tex. App.—Austin 1995, writ dism’d by agr.)(“We

need not address the merits of the City’s argument for two reasons: (1) the

City has not demonstrated that its substantial rights in this case have been

prejudiced by the alleged superfluous findings, a prerequisite for reversal

or remand under APA …”).

Entergy asked the Commission to address only retail rates. Wholesale

rates for Entergy, which serves an area outside the Texas intrastate electric

grid called ERCOT, are usually set by the Federal Energy Regulatory

18

Commission.34 In addition, Rule 25.236(d)(1)(A) specifically speaks to

retail rates. 16 Tex. Admin. Code § 25.236(d)(1)(A).

Entergy failed to show harm because, although Entergy claims harm

based on treating wholesale fuel expenses differently than retail fuel

expenses, the utility refused to give any information about recovering fuel

expenses from wholesale customers. An Entergy witness maintained that

costs would be stranded if the contemporaneous line-loss study were used

for retail customers while maintaining that wholesale rates were irrelevant.

(See AR, Tr. 1466-75, (“[I]f you are retrospectively changing an allocation

factor, then, to me, no, you’re stranding those costs.” at 1470–71) (“[H]ow a

contract is written and that contract that’s entered into between ETEC or

any wholesale customer and the company again is totally separate and

distinct from a cost of service used to set retail rates for [Entergy] in the

state of Texas.” at 1466).) The Commission has evidence only about

Entergy’s retail fuel expenses. Based on that evidence, in addition to the

$243 million of fuel expenses that the utility estimated that it over-

recovered from retail customers, Entergy also recovered almost $4 million

34

See Gulf States Utils. Co. v. Pub. Util. Comm’n, 841 S.W.2d 459, 471 (Tex.

App.—Austin 1992, writ denied) (“FERC’s jurisdiction encompasses wholesale rates and

power allocations affecting those rates, as well as purchaser-prudence issues arising in

the context of integrated pooling agreements or sales between corporate affiliates.”).

19

for fuel costs that should have been allocated to wholesale rather than retail

customers.

Entergy failed to show that the Commission’s decision to use the

contemporaneous line-loss study would cause it harm.

Conclusion

The district court erred; it based its holding that the Commission’s

Order was arbitrary and capricious on rules that do not apply to this fuel-

reconciliation. And the Commission’s Order accords with the applicable

fuel-reconciliation rules.

Prayer

The Commission asks the Court to reverse the district court’s judgment

to the extent that it found error in the Commission’s order (that the

Commission erred in applying the current line-loss study) and to affirm the

Commission’s order. The Commission asks the Court for such other relief

as it may be entitled.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

20

JAMES E. DAVIS

Deputy Attorney General for Civil

Litigation

JON NIERMANN

Division Chief

Environmental Protection Division

/s/ Elizabeth R. B. Sterling

Elizabeth R. B. Sterling

Assistant Attorney General

Texas State Bar No. 19171100

elizabeth.sterling@texasattorneygeneral

.gov

Environmental Protection Division

Office of the Attorney General

P.O. Box 12548, MC-066

Austin, Texas 78711-2548

512.463.2012

512.457.4616 (fax)

COUNSEL FOR PUBLIC UTILITY

COMMISSION OF TEXAS

Certificate of Compliance

I certify that the foregoing computer-generated document has 4254

words, calculated using the computer program WordPerfect 12, pursuant to

Texas Rule of Appellate Procedure 9.4.

/s/ Elizabeth R. B. Sterling

Elizabeth R. B. Sterling

21

Certificate of Service

I hereby certify that on this the 31st day of March 2015, a true and

correct copy of the foregoing document was served on the following counsel

electronically, through an electronic filing service and by email:

/s/ Elizabeth R. B. Sterling

Elizabeth R. B. Sterling

Counsel for Appellant Entergy Texas, Inc.:

Marnie A. McCormick

Patrick J. Pearsall

Duggins, Wren, Mann & Romero, LLP

P. O. Box 1149

Austin, Texas 78767-1149

512.744.9300

512.744.9399 (fax)

mmccormick@dwmrlaw.com

ppearsall@dwmrlaw.com

Counsel for Appellants Cities of Anahuac, et al.:

Daniel J. Lawton

The Lawton Law Firm, P.C.

12600 Hill Country Blvd, Ste. R-275

Austin, TX 78738

512.322.0019

855.298.7978 (fax)

dlawton@ecpi.com

22

Counsel for Appellant Office of Public Utility Counsel:

Sara J. Ferris

Senior Assistant Public Counsel

Office of Public Utility

P.O. Box 12397

Austin, Texas 78711-2397

512.936.7500

512.936.7520 (fax)

sara.ferris@opuc.texas.gov

Counsel for State Agencies:

Katherine H. Farrell

Assistant Attorney General

Administrative Law Division

Energy Rates Section

Office of the Attorney General

P.O. Box 12548, MC 018-12

Austin, Texas 78711-2548

512.475.4237

512.320.0167 (fax)

katherine.farrell@texasattorneygeneral.gov

Counsel for Texas Industrial Energy Consumers:

Rex VanMiddlesworth

Benjamin Hallmark

Thompson & Knight LLP

98 San Jacinto Blvd., Ste. 1900

Austin, Texas 78701

512.469.6100

512.469.6180 (fax)

rex.vanm@tklaw.com

benjamin.hallmark@tklaw.com

23

APPENDIX A

District Court Judgment

CC l! Kl4~51'G U2

F'Ued In 'l'h , .

of Travis ~ 011mct Cow·:

oumy, 't!ixa£

EM OCT 1~ 2ui41

CAUSE NO. D-J-GN-lJ-000121 At (/ .J.if A

Amalia Rodrigu&z·Mend- . M

oza; Glerh

ENTERGY TEXAS, 1INC., § IN THE DISTRICT COURT OF

Pliaintiiff §

§

'V. § TRAVIS COUNTY, TEXAS

§

PU[JLIC UTILITY COMMISSION, §

Defendant § 353Ro JUDICIAL DISTRICT

ORDER ON ADMINISTRATIVE APPEAL

On July 22, 2014, the Court heard Plaintiffs appeal from Defendant's Order in PUC

Docket No. 39896, SOAH Docket No. . The administrative record was admitted

into evidence, and the Court lhe.ard oral argument. Entergy, the Cities, and OPUC each asserted

points of error challenging the Commission's order. Having considered the pleadings, the

evidence and the arguments of counsel, the Court makes the following rulings:

l. Entergy' s Point of Error No. I a<l<l1cssing the use of a current line loss study rather

tlhat a prior-approved line ~oss study in allocating line loss costs among classes of

customers establishes tha.t the Commission erred in applying the current study in

1

viola~ion of Commission rules found at 16 TAC §25.236(e)(3) and 16 TAC 25.237(a)

and (c)(2)(B). Accordingly, the Court FINDS that the PUC's ruling was arbitrary and

capricious and constitutes an error oflaw. The Court REVERSES such ruling and

REMANDS this matter to the Commission for further proceedi11gs consistent with

this Court's Order.

2. All other points of error are DENIED. and the Commission's Order is in all other

respects AFHRMED.

Alil relief not granted. herein, is DENIED1~ 1 /

I( rL llc.,a ~...

S·igned th~s /" day of ~rem~r. 2014 .

J

APPENDIX B

Commission Order

PUC DOCKET NO. 39896

SOAH DOCKET NO

APPLICATION OF ENTERGY TEXAS, §

INC. FOR AUTHORITY TO CHANGE §

RATES, RECONCILE FUEL COSTS, §

AND OBTAIN DEFERRED §

ACCOUNTING TREATl\ilENT § \

ORDER

This Order addresses the application of Entergy Texas, lnc. for authority to change rates,

reconcile fuel costs •. and defer costs for the transition to the Midwest Independent System

Operator (MISO). In its application, Entergy requested approval of an increase in annual b:ise-

rate revenues of approximately $ 111.8 million (later lowered to $104.8 million), proposed tariff

schedules, including new riders to recover costs related to purchased-power capacity and

renewable-energy credit requirements, requested final reconciliation of its fuel costs, and

requested waive.rs to the rate-filing package requirements .

On July 6, 2012, the State Office of Administrative Hearings (SOAH) administrative law

judges (AUs) issued a proposal for decision in which they recommended an overall rate increase

for Entergy of $28.3 million resulting in a total revenue requirement of approximately $781

million. The AUs also recommended approving total fuel costs of approximately $1.3 billion.

The A.Us did not recommend approving the renewable-energy credit rider and the Commission

earlier removed the purchased-power capacity rider as an issue to be addressed in this docket. 1

On August 8, 20 12, the ALJs filed corrections to the proposal for decision based on the

exceptions and replies of the parties.2 Except as discussed in this Order, the Commission adopts

the proposal for decision, as corrected, including findings of fact and conclusions of law.

1

Supplemental Preliminary Order at 2. 3 (Jan. 19, 2012).

? Letter from SOAHjudges to PUC (Aug. 8, 2012).

000000001

PUC Docket No. 39896 Order Page 2 of43

SOAH Docket N o . -

I. Discussion

A. Prepaid Pension Asset Balance

Entergy included in rate base an approximately $56 million item named Unfunded

Pension. 3 This amount represents the accumulated difference between the annual pension costs

calculated in accordance with the Statement of Financial Accounting Standards (SFAS) No. 87

and the actual contributions made by Entergy to the pension fund-Entergy contributed nearly

$56 million more to its pension fund than the minimum required by SFAS No. 87.4

In Docket No. 33309, the Commission allowed a pension prepayment asset, excluding

the portion of the asset that is capitalized to construction work in progress (CWIP), less accrued

deferred federal income taxes (ADFIT) to be included in rate base. 5 For the excluded portion,

the Commission allowed the accrual of an allowance for funds used during construction

(AFUDC).6 The Al.Js concluded that this approach was sound and should be followed in this

case. 7 Thus, the Al.Js recommended that the CWTP-related portion of Entergy's prepaid pension

asset ($25,311,236) should be excluded from the asset and should accrue AFUDC.8 However,

the ALls did not address ADFIT.

The Commission agrees that the CWIP-related portion of Entergy' s pension asset should

be excluded from the asset and that this excluded portion should accrue AFUDC. However, the

Commission also finds that the impact of this exclusion on Entergy' s AD FIT should be reflected.

When items are excluded from rate base, the related ADFIT should also be excluded. The

adjusted ADFIT for the prepaid pension asset remaining in Entergy's rate base should be reduced

by $8,858,933, the deferred raxes related to the excluded $25 million. The Commission adds

new finding of fact 28A to reflect this modification to Entergy's ADFIT.

3

Proposal for Decision at 23 (July 6, 2012) (PFD).

4

PFD at 23-24.

5

Application of AEP Texas Central Company for Authority to Change Rates, Docket No. 33309, Order on

Rehearing (March 4, 2008).

6

Remand of Docket No. 33309 (Application of AEP Tems Central Company for Authority 10 Change

Rates), Docket No. 38772, Order on Remand (Jan. 20, 2011).

7

PFD at 26.

8

Id. at 24-26.

000000002

PUC Docket No. 39896 Order Page 3 of 43

SOAH Docket N o -

B. FIN 48

The Financial Accounting Standards Board's lnterpretation No. 48 (FIN 48) prescribes

the way in which a company must analyze, quantify, and disclose the potential consequences of

tax positions that the company has taken that are legally uncertain. Entergy reported that its

uncenain tax positions totaled $5,916,461. FIN 48 requires that this amount be recorded on

Entergy' s balance sheet as a tax liabil ity. Entergy also reported that it made a cash deposit with

the IRS in the amount of $ 1,294,683 associated with its FIN 48 liability.q

The AUs concluded that Entergy's FIN 48 liability should be included in its ADFIT

balance, but the amount of the cash deposit made by Entergy to the IRS attributable to Entergy' s

FIN 48 liability should not be included in Entergy's ADFIT balance. Accordingly, the AUs

recommended that $4,621,778 (Entergy 's FIN 48 liability of $5,916,461 less the $1.294,683 cash

deposit Entergy has already made with the IRS) be added to Entergy's ADm balance and thus

be used to offset Entergy' s rate base. 10 The AUs did not recommend the addition of a deferred-

tax.-account riuer because no party expressly advocated the addition of such a rider. 11

The Commission adopts the proposal for decision regarding the adjustment to Entergy' s

ADFIT for the amount attributable to Entergy's FIN 48 liability. However, the Commission also

follows its precedent regarding the creation of a deferred-lax-account tracker and modifies the

proposal for decision on this point. In CenterPoint's Electric Delivery Company's last rate case,

Docket No. 38339, 12 the Commission found that tax schedule UTP--0n which companies must

describe, list, and rank each uncertain tax position- would provide the lRS auditors sufficient

information to quickly determine which uncenain tax positions are of a magnitude wonh

investigating and that an IRS audit would he more likely to occur on some uncenain tax

positions . If an IRS audit of a FIN 48 uncertain tax position results in an unfavorable outcome,

the utility would not be able to earn a return on the amount paiu to the IRS until the next rate

case.

~ PFD at 2&27 (citing Rebuttal Testimony of Roberts, Entergy fa. 64 at 6). 29 (citing Rebuttal Testimony

of Robens. Entergy Ex. 64 at 8).

10

PFDat29.

11

Id. at 29.

tl Application of CenterPoint Electric Deliv~ry Company. UC for Aurhoriry to Change Rote.,, Docket

No. 38339, Order on Rehearing at 3-4 CJuoe 23, 2011).

000000003

PUC Docket No. 39896 Order Page~ of 43

SOAH Docket No.-

Accordingly, the Commission authorizes Entergy to establish a rider to track unfavorable

FIN-48 rulings by the IRS. The rider will also allow Entergy to recover on a prospective basis

an after-tax return of 8.27% on tbe amounts paid to the IRS that result from an unfavorable FIN-

48 unfavorable-tax-position audit. The return will be applied prospectively to FIN-48 amounts

disallowed by an IRS audit after such amounts are actually paid to the federal government. If

Entergy subsequently prevails in an appeal of an unfavorable FlN-48 unfavorable-tax-position

decision by the IRS, then any amounts collected under rider related to that ovenumed decision

shall be credited back to ratepayers.

The Commission adds new finding of fact 40A and deletes finding of fact 41 consistent

with its decision to authorize the deferred-tax-account tracker.

C. Capitalized Incentive Compensation

Entergy capitalized into plant-in-service accounts some of the incentive payments made

to employees and sought to include those amounts in rate base. The AUs determined that

Entergy should not be able to recover its financially based incentive-compensation costs. IJ

Therefore, the portion of Entergy's incentive-compensation costs capitalized during the period

July 1, 2009 through June 30, 2010 that were financially based was excluded from Entergy's rate

base. The AUs also determined that the actual percentages should be used to determine the

amount that is financially based. 14

In discussing Entergy's incentive compensation as a component of operating expenses,

the AUs adopted the method advocated by Texas Industrial Energy Consumers (TIEC) for

calculating the amount of the financially based incentive costs. This method uses the actual

percentage reductions applicable to each of the annual incentive programs that included a

15

component of financially-based costs.

[nits exceptions regarding capitalized incentive compensation, Entergy advocated for the

use of TlEC's methodology to also calculate the amount of capitalized incentive compensation

that is financially based. Entergy also noted that the amount of the disallowance reflected in the

13

PFD at 171.

1

~ Id. at 72.

u Id. at 174: see also Entergy·s Exceptions to the Proposal for D«ision at 25-26 (July 23. 201 2).

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schedules, $ t ,333,352, was calculated using a disallowance factor that included incentive

compensation tied to cost-control measures, which the A.Us found to be recoverable in the

operating-cost incentive-compensation calculation. 16 When the TIEC methodology is applied to

the capitalized incentive-compensation costs in rate base, the net result under TIEC' s

methodology is that only $335,752.96 should be disallowed from capital costs. 17

The Commission agrees that capitalized incentive compensation that is financially based

should be excluded from rate base and that the exclusion only applies to incentive costs that

Entergy capitalized during the period from July t, 2009 through June 30, 2010. However, the

Commission finds that a consistent methodology should be used to calculate the amount to be

excluded and therefore that TlEC's methodology should also be used for calculating the amount

of capitalized financially based incentive-compensation costs that should be excluded from rate

base. Accordingly, the total amount of capitalized incentive-compensation costs that should be

disallowed from rate base is $335,752.96. Finding of fact 61 is modified to reflect this

determin:ition.

As noted by Commission Staff, this disallowance to plant-in-service alters the expense

for ad valorem taxes. Accounting for this disallowance, the appropriate expense amount for ad

valorem ta:ites is $24,921,022. 18 an adjustment of $1.222, l 06 to Entergy' s test year amount.

Finding of fact 151 is modified to reflect this adjustment to property taxes.

D. Rate of Return and Cost of Capital

The A.Us found the proper range of an acceptable return on equity for Entergy would be

from 9.3 percent to 10.0 percent. 19 The mid-point of the range is 9.65 percent. The AUs found

that the effect of unsettled economic conditions facing utilities on the appropriate return on

equity should be taken into account and that the effect would be to move the ultimate return on

equity towards the upper limits of the range that was determined to be reasonable. 20 The AUs

16

Entergy's Exceptions to the Proposal for Decision at 25-26.

11

Id. at 25-26.

18

Commission Number-Run Memorandum at 2 <Aug. 28, 2012).

19

PFD .:it 94.

10 Id.

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found that the reasonable adjustment would be 15 basis points, moving the reasonable return on

equity to 9.80 percent. 21

The Commission must establish a reasonable return for a utility and must consider

applicable factors. 22 The Commission disagrees with the AUs that a utility's return on equity

should be determined using an adder to reflect unsettled economic conditions facing utilities.

The Commission agrees with the AUs. however, that a return on equity of 9.80 percent will

allow Entergy a reasonable opportunity to earn a reasonable return on its invested capital, but

finds this rate appropriate independent of the 15-point adder recommended by the AUs. A

return on equity of 9.80 percent is within the range of an acceptable return on equity found by

the AUs. Accordingly, the Commission adds new finding of fact 65A to retlect the

Commission's decision on this point.

E. Purchased-Power Capacity Expense

The AUs rejected Entergy's request to recover $31 million more in purchased-power

capacity costs than its actual test-year expenses because Entergy had failed to prove that the

adjustment was known and measurable, 23 and because the request violated the matching

principle.24 Consequently, the AUs recommended that Entergy's test-year expenses of

$245,432,884 be used to set rates in this docket. 25

Entergy pointed to an additional $533,002 of purchased-power capacity expenses that

were properly included in Entergy's rate-filing package, but not provided for in the proposal for

decision. 26 The Commission finds that an additional $533,002 ($6,132 for test-year expenses for

Southwest Power Pool fees, $654.082 for Toledo Bend hydro fixed-charges, and -$127,212 for

an Entergy intra-system billing adjustment that were all recorded in FERC account 555) of

purchased-power capacity costs were incurred during the test-year and should be added to the

purchased-power capacity costs in Entergy' s revenue requirement. The Commission modifies

:i t fd. at 94.

22

PURA §§ 36.05 l, .052.

23

PfD at 108-09.

14

fd. at 109.

!S fd.

.?6 Entergy's Ex~ptions to the Proposal for Decision at 51 .

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findings of fact 72 and 86 to reflect the inclusion of the additional $533,002 of test-year

purchased-power capacity costs, increasing the total amount to $245,965,886.

F. Labor Costs - Incentive Compensation

The AUs found that $6,196.037, representing Entergy's financially-based incentives paid

in the test-year. should be removed from Entergy's O&M expenses.27 The AUs agreed with

Commission Staff and Cities that an additional reduction s hould be made to account for the

FICA taxes that Entergy would have paid for those costs,28 but did not include this reduction in a

finding of fact.

The Commission agrees with the AUs, but modifies finding uf fact 133 to specifically

include the decision that an additional reduction should be made to account for the FICA taxes

Entergy would have paid on the disallowed financially-based incentive compensation. The

Commission notes that this reduction for FICA taxes is reflected in the schedules attached to this

Order.29

G. Affiliate Transactions

OPUC argued that Entergy's sales and marketing expenses exclusively benefit the larger

commercial and industrial customers, but the majority of the sales, marketing, and customer

service expenses are allocated to the operating companies based on customer counts. Therefore,

the majority of these expenses are ::illocated to residential and small business customers. OPUC

argued that it is inappropriate for residential and small business customers to pay for these

expenses.JO The AUs did not adopt OPUC's position on this issue.

The Commission agrees with OPUC ::ind reverses the proposal for decision regarding

allocation of Entergy's sales and marketing expense and finds that $2.086 million of sales and

marketing expense should be reaHocated using direct assignment. The Commiss ion has

27

PFD at 175.

!S Id. at 175-76.

19

See Commission Number Run-Memorandum at J (Aug. 28. 2012).

IO Direct Testimony of Carol Szerszen. OPUC Ex. I at 44-45.

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previously ex.pressed its preference for direct assignment of affiliate expenses.31 The

Commission finds that the following amounts should be allocated based on a total-number-of-

customers basis: (I) $46,490 for Project ElOPCR56224 - Sales and Marketing - EGSI Tex.as;

(2) $17,013 for Project F3PCD10049 - Regulated Retail Systems O&M; and (3) $30,167 for

Project F3PPMMALl2 - Middle Market Mkt. Development. The remainder, $1,992,475, should

be assigned to (l) General Service, (2) Large General Service and (3) Large Industrial Power

Service. 32 The reallocation has the effect of increasing the revenue requirement allocated to the

large business class customers and reduces the revenue requirement for small business and

residential customers. New finding of fact 164A is added to reflect the proper allocation of these

affiliate transactions.

H. Fuel Reconciliation

Entergy proposed to allocate costs for the fuel reconciliation to customers using a line-

loss study performed in 1997. Entergy conducted a line-loss study for the year ending December

31. 20 l 0, which falls in the middle of the two year fuel reconciliation period-July 2009 through

June 20 ll-and therefore reflects the actual line losses experienced by the customer classes

during the reconciliation period. Cities argued that the allocation of fuel costs incurred over the

reconciliation period should retle.ct the current line-loss study performed by Entergy for this case

and recommended approval on a going-foiward basis. Fuel factors under P.U.C. SUBST.

R. 25.237(a)(3) are temporary rates subject to revision in a reconciliation proceeding described

in P.U.C. SunST. R. 25.236. P.U.C. SUBST. R. 25.236(d)(2) defines the scope of a fuel

reconciliation proceeding to include any issue related to the reasonableness of a utility's fuel

expenses and whether the utility has over- or under-recovered its reasonable fuel expenses.33

Cities calculated a $3,981.27 l reduction to the Texas retail fuel ex.penses incurred over the

reconciliation period using the current line-losses. The AUs rejected Cities' proposed

adjustment finding that the P.U.C. SUBST. R. 25.237(c)(2)(B) requires the use of Commission-

31

Application of Central Power and Light Company for Authority to Change Rates, Docket No. 14965.

Second Order on Reheaiing o.t 87, COL 29 (Oct. 16, 1997).

32

Direct Testimony of Carol Szerszen, OPUC Ex.. I at Schedule CAS-7.

)) Cities' Exceptions to lhe Proposal for Decision at 20-21 (July 23. 2012).

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approved line losses that were in effect at the time fuel costs were billed to customers in a fue l

reconciliation. 34

The Commission agrees with Cities and reverses the proposal for decision regarding

which line-loss factors should be used in Entergy's fuel reconciliation. Entergy used the 2010

study line-loss calculations to calculate the demand- and energy-related allocations in its cost of

service analysis supporting its requested base rates. These same currently available line-loss

factors should have been utilized in Entergy's fuel reconciliation. The Commission finds that

Entergy's 2010 line-loss factors should be used to calculate Entergy's fuel reconciliation

over-recovery. As a result, Entergy's fuel reconciliation over-recovery should be reduced by

$3,981.271. Finding of fact 246A and conclusions of law l 9A and 198 are added to reflect the

Commission's finding that the 2010 line-loss factors be used to reconcile Entergy' s fue l costs.

I. MISO Transition Expenses

During the Commission' s consideration of the proposal for decision, the parties that

contested the amount of Entergy's MISO transition expenses and how the transition expenses

should be accounted for reached announced on the record that they had reached an agreement on

these issues.35 Those parties agreed that the MISO transition expenses would not be deferred and

that Entergy's base rates should include $1.6 million for MISO transition expense.36 The

Commission adopts the agreement of the parties and accordingly modifies finding of fact 251

and deletes finding of fact 252.

J. Purchased-Power Capacity Cost Baseline

The Commission modified the amount of purchased-power capacity expense m the

test-year to be $245,965,886 (see section E above). Finding of fact 255 is modified to reflect the

change to the proper test-year purchased-power capacity expense.

3

~ PFD at 327-328.

35

Open Meeting Tr. at 138 (Aug. 17. 2012).

.)6 Id.

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K. Other Issues

New findings of fact 17A, l7B, 17C, 170, and 17 E are added to retlect procedural

:.ispects of the case after issuance of the proposal for decision.

In addition, to reflect corrections recommended by the AUs, findings of fact 116, 123.

192, 194, and 202 are modified~ and new finding of fact l 82A is added.

The Commission adopts the following findings of fact and conclusions of law:

II. Findin.gs of Fact

Procedural History

1. Entergy Texas, Inc. (ETI or the company) is an investor-owned electric utility with a

retail service area located in southeastern Texas.

2. ETI serves retail and wholesale electric customers in Texas. As of June 30, 201 l. ETI

served approximately 412,000 Texas retail customers. The Federal Energy Regulatory

Commission (FERC) regulates ETI's wholesale electric operations.

3. On November 28, 2011, ETI filed an application requesting approval of: (I) a proposed

increase in annual base rate revenues of approximately $11 l.8 million over adjusted test-

year revenues; (2) a set of proposed tariff schedules presented in the Electric Utility Rate

Filing Package for Generating Utilities (RFP) accompanying ETI's application and

including new riders for recovery of costs related to purchased-power capacity and

renewable energy credit requirements; (3) a request for final reconciliation of ETI's fuel

and purchased-power costs for the reconciliation period from July 1. 2009 to

June 30, 2011; and (4) certain waivers to the instructions in RFP Schedule V

accompanying errs application.

4. The 12-month test-year employed in ETI' s filing ended on June 30, 2011 (test-year).

5. ETI provided notice by publication for four consecutive weeks before the effective date

of the proposed rate change in newspapers having general circulation in each county of

ETI's Texas service territory. ETI also mailed notice of its proposed rate change to all of

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its customers. Additionally, ETI timely served notice of its statement of intent to change

rates on all municipalities retaining original jurisdiction over its rates and services.

6. The following parties were granted intervenor status in this docket: Office of Public

Utility Counsel; the cities of Anahuac, Beaumont, Bridge City, Cleveland, Conroe,

Da.yton, Groves, Houston, Huntsville, Montgomery, · Navasota, Nederland, Oak Ridge

North, Orange, Pine Forest, Rose City, Pinehurst, Port Arthur, Port Neches, Shenandoah,

Silsbee, Sour Lake, Splendora, Vidor, and West Orange (Cities), the Kroger Co.

(Kroger); State Agencies; Texas Industrial Energy Consumers; East Texas Electric

Cooperative, Inc.; the United States Department of Energy (DOE); and Wal-Mart Stores

Texas. LLC, and Sam's East, Inc. (Wal-Mart). The Staff (Staff) of the Public Utility

Commission of Texas (Commission or PUC) was also a participant in this docket.

7. On November 29, 2011, the Commission referred this case to the State Office of

Administrative Hearings (SOAH).

8. On December 7. 2011. the Commission issued its order requesting briefing on threshold

legal/pol icy issues.

9. On December 19. 2011, the Commission issued its Preliminary Order, identifying 31

issues to be addressed in this proceeding.

10. On December 20, 2011, the Administrative Law Judges (ALJs) issued SOAH Order

No. 2. which approved an agreement among the parties to establish a June 30, 2012

effective date for the company's new rates resulting from this case pursuant to certain

agreed language and consolidate Application of Entergy Texas, Inc. for Auth<>rity to Defer

Expenses Related to its Proposed Transition to Membership in the Midwest Independent

System Operator, Docket No. 39741 (pending) into this proceeding. Although it did not

agree, Staff did not oppose the consolidation.

11. On January l3, 2012, the AUs issued SOAH Order No. 4 granting the motions for

admission pro hac vice filed by Kurt J. Boehm and Jody M. Kyler to appear and

participate as counsel for Kroger and the motion for admission pro hac vice filed by Rick

D. Chamberlain to appear and panicipate as counsel for Wal-Mart.

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12. On January 19, 20 12, the Commission issued a supplemental preliminary order

identifying two additional issues to be addressed in this case and concluding that the

company's proposed purchased-power capacity rider should not be addressed in this case

and that such costs should be recovered through base rates.

13. ETI timely filed with the Conunission petitions for review of the rate ordinances of the

municipalities e)(ercising original jurisdiction within its service territory. All such

appeals were consolidated for determination in this proceeding.

14. On April 4, 2012, the AUs issued SOAH Order No. 13 severing rate case expense issues

into Application of Entergy Texas, Inc. for Rate Case Expenses Severed f rom PUC

Docket No. 39896, Docket No. 40295 (pending).

15. On April 13, 2012, ETI adjusted its request for a proposed increase in annual base rate

revenues to approximately $104.8 million over adjusted test-year revenues.

16. The hearing on the merits commenced on April 24 and concluded on May 4, 2012.

17. Initial post-hearing briefs were filed on May 18 and reply briefs were filed on May 30,

2012.

l7A. On August 7, 2012, the SOAH ALls filed a letter with the Commission recommending

changes to the PFD.

17B At the July 27, 2012 open meeting, ETI agreed to extend the effective date of rates to

August 31, 2012 to provide the Commission sufficient time to c.onsider the issues in this

proceeding.

l7C. The Commission considered the proposal for decision at the August 17, 2012 and August

JO. 2012 open meetings.

l 70 . At the August 30, 20 l 2 open meeting, ETI agreed to ex.tend the effective date of rates to

September 14, 20 l 2.

l 7E. At the August 17. 2012 open meeting, parties announced on the record a settlement of the

amount of costs for the trnnsition to MISO.

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Rate Base

18. Capital additions that were closed to ETI' s plant-in-service between July 1, 2009 and

June 30, 2011. are used and useful in providing service to the public and were prudently

incurred.

19. ETI's proposed Hurricane Rita regulatory asset was an issue re.c;olved by the black-box

settlement in Application of Entergy Texas, Inc. for Authority to Change Rates and

Reconcile Fuel Costs, Docket No. 37744 (Dec. 13, 2010).

20. Accrual of carrying charges on the Hurricane Rita regulatory asset should have ceased

when Docket No. 37744 concluded because the asset would have then begun earning a

rate of return as part of rate base.

21. The appropriate calculation of the Hurricane Rita regulatory asset should begin with the

amount claimed by ETI in Docket No. 37744, less amortization accruals to the end of the

test-year in the present case, and less the amount of additional insurance proceeds

received by ETI after the conclusion of Docket No. 37744.

22. A Test-Year-end balance of $15,175,563 for the Hurricane Rita regulatory asset should

remain in rate base, applying a five-year amonization rate beginning August 15, 2010.

23. The Hurricane Rita regulatory asset should not be moved to the storm damage insurance

reserve.

24. The company requested in rate base its prepaid pension assets balance of $55,973,545,

which represents the accumulated difference between the Statement of Financial

Accounting Standards (SfAS) No. 87 calculated pension costs each year and the actual

contributions made by the company to the pension fund.

25. The prepaid pension assets balance includes $25,311 ,236 capitalized to construction work

in progress (CWIP).

26. It is not necessary to the financial integrity of ETI to include CWTP in rate base, and there

was insufficient evidence showing that major projects under construction were efficiently

and prudently managed.

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PUC Docket No. 39896 Order Page 14 of 43

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27. The portion of the prepaid pension assets balance that is capitalized to CWIP should not

be included in ETl's rate base.

28. The remainder of the prepaid pension assets balance should be included in ETr s rate

base.

28A. When items are excluded from rate base, the related ADFIT should also be excluded.

The amount of ADFIT associated with the $25 million capitalized to CWIP and excluded

from rate base is $8,858,913. The adjusted ADFIT for the prepaid pension asset

remaining in Entergy's rate base should be reduced by $8,858,933.

29. ETI should be permitted to accrue an allowance for funds used during constmction on the

portion of ETI's Prepaid Pension Assets Balance capitalized to CWIP.

30. The Financial Accounting Standard Board (FASB) Financial Interpretation No. 48

(FIN 48), "Accounting for Uncertainty in Income Taxes," requires ETI to identify each of

its uncertain tax positions by evaluating the taK position on its technical merits to

determine whether the position, and the corresponding deduction, is more-likely-than-not

to be sustained by the Internal Revenue Service (IRS) if audited.

3 l. FIN 48 requires ETI to remove the amount of its uncenain tax positions from its

Accumulated Deferred Federal Income Tax (ADFIT) balance for financial reporting

purposes and record it as a potential liability with interest to better reflect the company's

financial condition.

32. At test-year-end, ETI had $5,916,461 in FIN 48 liabilities, meaning ETI ha.s, thus far,

avoided paying to the IRS $5,916,461 in tax dollars (the FIN 48 liability) in reliance upon

tax positions that the company believes will not prevail in the event the positions are

challenged, via an audit, by lhe IRS.

33. ETl has deposited $1,294,683 with the lRS in connection with the FlN 48 liability.

34. The IRS may never audit ETI as to its uncertain tax positions creating the FIN 48

liability.

35. Even if ETI is audited, ETI might prevail on its uncertain tax positions.

36. ETI may never have to pay the IRS the FIN 48 liability.

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PUC Docket No. 39896 Order Pnge 15 of43

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37. Other than the amount of its deposit with the IRS. ETI has current use of the FIN 48

liability funds.

38. Until actually paid to the IRS , the FIN 48 liability represents cost-free capital and should

be deducted from rate base.

39. The amount of $4,621,778 (representing ETI's full FIN 48 liability of $5,916,461 less the

$1 ,294,683 cash deposit ETI has made with the lRS for the FIN 48 liability) should be

added to ETI's ADFIT and thus be used to reduce ETl's rate base.

40. ETr s application and proposed tariffs do not indude a request for a tracking mechanism

or rider to collect a return on the FIN 48 liability.

40A. It is appropriate for ETI to create a deferred-tax-account tracker in the form of a rider to

recover on a prospective basis an after~tax return of 8.27 % on the amounts paid to the

IRS that result from an unfavorable FIN 48 audit. The rider will track unfavorable FIN

48 rulings and the return will be applied prospectively to FIN 48 amounts disallowed by

an IRS audit after such amounts are actually paid to the federal government. If ETI

prevails in an appeal of a FIN 48 decision, then any amounts collected under the rider

related to that decision should be credited back to ratepayers.

4 t. Deleted.

42. [nvestor-owned electric utilities may include a reasonable allowance for cash working

capital in rate base as determined by a lead-lag study conducted in accordance with the

Commission's rules.

43. Cash working capital represents the 3mount of working capital, not specifically oddressed

in other rate base items, that is necessary to fund the gap between the time expenditures

are made and the time corresponding revenues are received.

44. The lead-lag study conducted by ETI considered the actual operations of ETI, adjusted

for known and measurable changes, and is consistent with P.U.C. SUBST.

R. 25.231(c)(2)(B)(iii).

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PUC Docket No. 39896 Order Page 16 0143

SOAH Docket No.-

45. It is reasonable to establish ETl's cash working capital requirement based on ETI's lead-

lag study as updated in lay Joyce's rebuttal testimony and on the cost of service approved

for ETI in this case.

46. As a result of the black-box settlements in Application of Entergy Gulf States, Inc. for

Authority to Change Rates and to Reconcile Fuel Costs, Docket No. 34800 (Nov. 7,

2008) and Docket No. 37744. the Commission did not approve ETI's storm damage

expenses since 1996 and its storm damage reserve balance.

47. ETI established a prima focie case concerning the prudence of its stonn damage expenses

incurred since 1996.

48. Adjustments to the storm damage reserve balance proposed by intervenors should be

denied.

49. The Hurricane Rita regulatory asset should not be moved to the storm damage insurance

reserve.

50. ETI's appropriate Test-Year-end stonn reserve balance was negative $59,799,744.

51. The amount of $9,846,037, representing the value of the average coal inventory

maintained at ETl's coal-burning facilities, is reasonable, necessary, and should be

included in rate base.

52. The Spindletop gas storage facility (Spindletop facility) is used and useful in providing

reliable and flexible natural gas supplies to ETI' s Sabine Station and Lewis Creek

generating plants.

53. The Spindletop facility is critical to the economic, reliable operation of the Sabine Station

and Lewis Creek generating plants due to their geographic location in the for western

region of the Entergy system.

54. It is reasonable and appropriate to include ETI's share of the costs to operate the

Spindletop facility in rate base.

55. Staff recommended updating ETI's balance amounts for short-tenn assets to the 13-

month period ending December 2011, which was the most recent information available.

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PUC Docket No. 391196 Order Page 17 of4J

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Staffs proposed adjustments should be incorporated into the calculation of ETI' s rate

base.

56. The following short-term asset amounts should be included in rate base: prepayments at

$8,134,351; materials and supplies at $29,285,421; and fuel inventory at $52,693,485.

57. The amount of $1,127,778, representing costs incurred by ETI when it acquired the

Spindletop facility, represent actual costs incurred to process and close the acquisition.

not mere mark-up costs.

58. ETI' s $ I.127,778 in capitalized acquisition costs should be included in rate base because

ETI incurred these costs in conjunction with the purchase of a viable asset that benefits

its retail customers.

59. In its application, ETI capitalized into plant in service accounts some of the incentive

payments ETI made to its employees. ETI seeks to include those amounts in rate base.

60. A portion of those capitalized incentive accounts represent payme.nts made by ETI for

incentive compensation tied to financial goals.

61. The portion of ETl' s incentive payments that are capiralized and that are financially-

based should be excluded from ETI' s race base because the benefits of such payments

inure most immediately and predominantly to ETI's shareholders, rather than its electric

customers. ETI's capitalized incentive compensation that is financially based is

$335,752.96 and should be removed for rate base.

62. The test-year for ETI's prior ratemaking proceeding ended on June 30, 2009, and the

reasonableness of ETI's capital costs (including capitalized incentive compensation) for

that prior period was dealt with by the Commission in that proceeding and is not at issue

in this proceeding.

63. In this proceeding, ETI's capitalized incentive compensation that is financially-hased

should be excluded from rate base, but only for incentive costs that ETI capitalized

during the period from July 1, 2009 (the end of the prior test-year) through June 30, 2010

(the commencement of the current test~ year).

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PUC Docket No. 39896 Order Page 18 or43

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Rate o(Retur11 and Cost of Capital

64. A return on common equity (ROE) of 9.80 percent will allow ETI a reasonable

opportunity to earn a reasonable return on its invested capital.

65. The results of the discounted cash flow model and risk premium approach support a ROE

of 9 .80 percent.

65A. It is not appropriate to add 15 points to the ROE due to unsettled economic conditions

facing utilities.

66. A 9.80 percent ROE is consistent with ETI's business and regulatory risk.

67. ETI's proposed.6.74 percent embedded cost of debt is reasonable.

68. The appropriate capital structure for ETI is 50.08 percent long-term debt and

49.92 percent common equity.

69. A capital structure composed of 50.08 percent debt and 49.92 percent equity is

reasonable in light of ETI's business and regulatory risks .

70. A capital structure composed of 50.08 percent debt and 49.92 percent equity will help

ETI attract capital from investors.

71. ETI's overall rate of return should be set as follows:

CAPITAL WEIGHTED AVG

COMPONENT STRUCTURE COST OF CAPITAL COST OF CAPITAL

LONG· TER!'1 DEBT 50.08% 6.74% 3.38%

COMMON EQUITY 49.92% 9.80% 4.89%

TOTAL 100.00% 8.27%

Ooera#ng Expenses

72. ETI's test-year purchased capacity expenses were $245,965,886.

73. ETI requested an upward adjustment of $30,809,355 as a post-test-year adjustment to its

purchased capacity costs. This request was based on ETI's projections of its purchased

capacity expenses during a period beginning June 1, 2012 and ending May 31, 2013 (the

rate-year).

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PUC Docket No. J9896 Order Page 19 or43

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74. ETI's purchased capacity expense projections were based on estimates of rate-year

expenses for: (a) reserve equalization payments under Schedule MSS- 1; (b) payments

under third-party capacity contracts; and (c) payments under affiliate contracts.

75. ETI's projection of its rate-year reserve equalization payments under Schedule MSS-1 is

based on numerous assumptions, including load growths for ETI and its affiliates. future

capacity contracts for ETI and its affiliates, and future values of the generation assets of

ETl and its affiliates.

76. There is substantial uncertainty with regard to ETI's projection of its rate-year reserve

equalization payments under Schedule MSS-1 .

77. ETI's projection of its rate-year third-party capacity contract payments includes

numerous assumptions, one of which is that every single third-party supplier will perform

at the maximum level tmder the contract, even though that assumption is inconsistent

with ETI's historical experience.

78. There is substantial uncenainty with regard to ETI's projection of its rate-year third-party

capacity-contract payments.

79. ETI's estimates of its rate-year purchases under affiliate contracts are based on a

mathematical formula set out in Schedule MSS-4.

80. The MSS-4 formula for rate-year affiliate capacity payments reflects that these payments

will be based on ratios and costs that cannot be determined until the month that the

payments are to be made.

81. Over $11 million of ETI' s affiliate transactions were based on a 2013 contract (the EA[

WBL Contract) that was not signed until April 11, 2012.

82. There is uncenainty about whether the EAI WBL Contract will ever go into effect.

83. ETI projects purchasing over JOO megawatts (MW) more in purchased capacity in the

rate-year than it purchased in the test-year.

84. ETI experienced substantial load growth in the two years before the test· year. and it

continues to project similar load growth in the future.

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PUC Docket No. 39896 Order Page 20 or4J

SOAH Docket N o . -

85. ETI did not meet its burden of proof to demonstrate that a known and measurable

adjustment of $30,809,355 should be made to its test-year purchased capacity expenses.

86. ETI's purchased capacity expense in this case should be based on the test-year level of

$245,965,886.

87. ETI incurred $1 ,753,797 of transmission equalization expense during the test-year.

88. ETI proposed an upward adjustment of $8,942,785 for its transmission equalization

expense. This request was based on ETI's projections of its transmission equalization

expenses during the rate-year.

89. The transmission equalization expense that ETI will pay in the rate-year will depend on

future costs and loads for each of the Entergy operating companies.

90. ETl's projection of its rate-year transmission equalization expenses is uncertain and

speculative because it depends on a number of variables, including future transmission

investments, deferred taxes, depreciation reserves, costs of capital, tax rates, operating

expenses, and loads of each of the Entergy operating companies.

91. ETI seeks increased transmission equalization expenses for transmission projects that are

not currently used and useful in providing electric service. ETI's post-test-year

adjustment is based on the assumption that certain planned transmission projects will go

into service after the test-year. At the close of the hearing. none of the planned

transmission projects had been fully completed and some were still in the planning phase.

92. It is not reasonable for ETI to charge its retail ratepayers for transmission equalization

expenses related to projects that are not yet in-service.

93. ETI's request for a post-test-year adjustment of $8,942,785 for rate-year transmission

equalization expenses should be denied because those expenses are not known and

measurable. ETI's post-test-year adjustment does not with reasonable certainty reflect

what ETI's transmission equalization expense will be when rates are in effect.

94 . ETI's transmission equalization expense in this case should be based on the test-year

level of $1,753,797.

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PUC Docket No. 39896 Order Page 21 of 43

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95. P.U.C. SUBST. R. 25.23 l(c)(2)(ii) states that the reserve for depreciation is the

accumulation of recognized allocations of original cost. representing the recovery of

initial investment over the estimated useful life of the asset.

96. Except in the case of the amonization of the general plant deficiency, the use of the

remaining life depreciation method to recover differences between theoretical and actual

depreciation reserves is the most appropriate method and should be continued.

97. It is reasonable for ETI to calculate depreciation reserve allocations on a straight-line

basis over the remaining. expected useful life of the item or facility.

98. Except as described below, the service lives and net salvage rates proposed by the

company are reasonable. and these service lives and net salvage rates should be used in

calculating depreciation rates for the company's production, transmission. distribution,

and general plant assets.

99. A 60-year life for Sabine Units 4 and 5 is reasonable for purposes of establishing

production plant depreciation rates.

100. The retirement (actuarial) rate method, rather than the interim retirement method, should

be used in the development of production plant depreciation rates.

10 t. Production plant net salvage is reasonably based on the negative five percent net salvage

in existing rates.

102. The net salvage rate of negative 10 percent for ETI's transmission structures and

improvements (FERC Account 352) is the most reasonable of those proposed and should

be adopted.

103. The net salvage rate of negative 20 percent for ETI's transmission station equipment

(FERC Account 353) is the most reasonable of those proposed and should be adopted.

104. The net salvage rate of negative five percent for ETr s transmission towers and fixtures

(FERC Account 354) is the most reasonable of those proposed. and should be adopted.

105. The net salvage rate of negative 30 percent for ETI's transmission poles and fixtures

(FERC Account 355) is the most reasonable of those proposed and should be adopted.

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PUC Docket No. 39896 Order Page 22 or43

SOAH Docket No.

106. The net salvage rate of negative 30 percent for ETI's transmission overhead conductors

and devices (FERC Account 356) is the most reasonable of those proposed and should be

adopted.

107. A service life of 65 years and a dispersion curve of R3 for ETI' s distribution structures

and improvements (FERC Account 361) are Lhe most reasonable of those proposed and

should be approved.

108. A service life of 40 years and a dispersion curve of Rl for ETI's distribution poles,

towers, and fixtures (FERC Account 364) are the most reasonable of those proposed and

should be approved.

109. A service life of 39 years and a dispersion curve of R0.5 for ETrs distribution overhead

conductors and devices (FERC Account 365) are the most reasonable of those proposed

and should be approved.

110. A service life of 35 years and a dispersion curve of Rl.5 for ETI' s distribution

underground conductors and devices (FERC Account 367) are the most reasonable of

those proposed and should be approved.

111. A service life of 33 years and a dispersion curve of L0.5 for ETI's distribution line

transformers (FERC Account 368) are the most reasonable of those proposed and should

be approved.

112. A service life of 26 years and a dispersion curve of L4 for ETI's distribution overhead

service (FERC Account 369.1) are the most reasonable of those proposed and should be

approved.

l l3 . The net salvage rate of negative five percent for ETI's distribution structures and

improvements (FERC Account 361) is the most reasonable of those proposed and should

be adopted.

114. The net salvage rate of negative 10 percent for ETI's distribution station equipment

(FERC Account 362) is the most reasonable of those proposed and should be adopted.

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PUC Docket No. 39896 Order Page 2.1 of43

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115. The net salvage rate of negative seven percent for ETI's distribution overhead conductors

and devices (FERC Account 365) is the most reasonable of those proposed and should be

adopted.

116. The net sal,vage rate of positive five. percent for ETI's distribution line transformers

(FERC Account 368) is the most reasonable of those proposed and should be adopted.

117. The net salvage rate of negative lO percent for ETl's distribution overhead services

(FERC Account 369. l) is the most reasonable of those proposed and should be adopted.

118. The net salvage rate of negative LO percent for ETl's distribution underground services

(FERC Account 369.2) is the most reasonable of those proposed and should be adopted.

119. A service life of 45 years and a dispersion curve of R2 for ETJ' s general structures and

improvements (FERC Account 390) are the most reasonable of those proposed and

should be approved.

120. The net salvage rate of negative 10 percent for ETl's general structures and

improvements (FERC Account 390) is the most reasom1ble of those proposed and should

be adopted.

121. lt is reasonable to conven the $21.3 million deficit that has developed over time in the

reserve for general plant accounts to General Plant Amortization.

122. A ten-year amortization of the deficit in the reserve for general plant accounts is

reasonable and should be adopted.

123. FERC pronouncement AR-15 requires amortization over the same life as recommended

based on standard life analysis. A standard lif'e analysis determined that a five-year life

was appropriate for general plant computer equipment (FERC Account 391.2).

Therefore, a five year amortization for this account is reasonable and should be adopted.

124. ETI proposed adjustments to its test-year payroll costs to reflect: (a) changes to employee

headcount levels at ETI and Entergy Services. Inc. (ESI); and (b) approved wage

increases set to go into effect after the end of the test-year.

125. The proposed payroll adjustments are reasonable but should be updated to reflect the

most recent available information on headcount levels as proposed by Commission Staff.

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PUC Docket No. 39896 Order Page 2.a of 43

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ln addition to adjusting payroll expense levels, the more recent headcount numbers

should be used to adjust the level of payroll tax expense, benefits expense, and savings

plan expense.

126. Staff has appropriately updated headcount levels to the most recent available data but

errors made by Staff should be corrected. The corrections related to: (a) a double

cowiting of three ETI and one ESI employee; (h) inadvertent use of the ETI benefits cost

percentage in the calculation of ESI benefits costs; (c) an inappropriate reduction of

savings plan costs when such costs were already included in the benefits percentage

adjustments; and (d) corrections for full-time equivalents calculations. Staffs ETI

headcount adjustment (AG-7) overstated operation and maintenance (O&M) pa.yroll

reduction by $224,217. and ESI headcount adjustment (AG-7) understated O&M payroll

increase by $37,531.

127. ETI included $14,187,744 for incentive compensation expenses in its cost of service.

128. The compensation packages that ETI offers its employees include a base payroll amount.

armual incentive programs, and long-term incentive programs. The majority of the

compensation is for operational measures, but some is for financial measures.

129. Incentive compensation that is based on financial measures is of more immediate and

predominant benefit to shareholders, whereas incentive compensation based on

operational measures is of more immediate and predominnnt benefit to ratepayers.

130. Incentives to achieve operational measures are necessary and reasonable to provide utility

services but those to achieve financial measures are not.

131. The $5,376,975 that was paid for long term incentive programs was tied to financial

measures and. therefore. should not be included in ETI's cost of service.

132. Of the amounts that were paid pursuant to the Executive Annual Incentive Plan, $819,062

was tied to financial measures and, therefore. should be disallowed.

133. In total, the amount of incentive compensation that should be disallowed is $6,196,037

because it was related to financial measures that are not reasonable and necessary for the

provision of electric service. An additional reduction should be made to account for the

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PUC Docket No. 39896 Order Page 25 or 43

SOAH Docket No.

FICA taxes ETI woul<l have pai<l on the disallowed financially based incentive

compensation.

134. The amount of incentive compensation that should be included in the cost of service is

$7,991,707.

135. To attract and retain highly qualified employees, the Enterg y companies provi<le a total

package of compensation and benefits that is equivalent in scope and cost with what other

comparable companies within the utility business and other industries provide for their

employees.

l 36. When using a benchmark analysis to compare companies' levels of compensation, it is

reasonable to view the market level of compensation as a range rather than a precise,

single point.

137. ETI' s base pay levels are at market.

138. Erl's benefits plan levels are within a reasonable rnnge of market levels.

139. ETI's level of compensation and benefits expense is reasonable and necessary.

140. ETI provides non-qualified supplemental executive retirement plans for highly

compensated individuals such as key managerial employees and executives that, because

of limitations imposed tmder the Internal Revenue Code, would otherwise not receive

retirement benefits on their annual compensation over $245,000 per year.

141. ETl's non-qualified supplemental executive retirement plans are discretionary costs

designed to attract, retain. and reward highly compensated employees whose interests are

more closely aligned with those of the shareholders than the customers.

142. ETI' s non-qualified executive retirement benefits in the amount of $2,114,93 1 are not

reasonable or necessary to provide utility service to the public. not in the public interest,

and should not be included in ETl's cost of service.

143. For the employee market in which ETI operates, most peer companies offer moving

assistance. Such assistance is expected by employees, and ETI would be placed at a

competitive disadvantage if it did not offer relocation expenses.

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PUC Docket No. 39896 Order Page 26 of .a3

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L44. ETI's relocation expenses were reasonable and necessary.

145. The company's requested operating expenses should be reduced by $40,620 to reflect the

removal of certain executive prerequisites proposed by Staff.

146. Staff properly adjusted the company's requested interest expense of $68,985 by removing

$25,938 from FERC account 431 (using the interest rate of 0.12 percent for calendar year

2012), leaving a recommended interest expense of $43,047.

147. During the test-year, ETI's property tax expense equaled $23,708,829.

148. ETI requested an upward pro Jonna adjustment of $2,592,420, to account for the property

tax expenses ETI estimates it will pay in the rate-year.

149. ETl's requested pro Jonna adjustment is not reasonable because it is based, in part·, upon

the prediction that ETI's propeny tax rate will be increased in 2012, a change that is

speculative is not known and measurable.

150. Staffs recommendation to increase ETI's test-year property tax expenses by $1,214,688

is based on the historical effective tax rate applied to the known test-year-end plant in

service value, consistent with Commission precedent, and based upon known and

measurable changes.

151. ETl's test-year prope.rty tax burden should be adjusted upward by $1,222,106 for a total

expense of $24,921.022.

152. Staff recommended reducing ETI's advertising, dues, and contributions expenses by

$12,800. The recommendation, which no party contested, should be adopted.

153. The final cost of service should retlect changes to cost of service that affect other

components of the revenue requirement such as the calculation of the Texas state gross

receipts tax, lhe local gross receipts tax, lhe PUC Assessment Tax and the Uncollec;tible

Expenses.

154. The company's requested Federal income tax expense is reasonable and necessary.

155. ETI's request for $2,019,000 to be included in its cost of service to account for the

company' s annual decommissioning expenses associated with River Bend is not

000000026

PUC Docket No. 39896 Order Page 27 of4J

SOAH Docket N o . -

reasonable because it is not based upon "the most current information reasonably

available regarding the cost of decommissioning" as required by P.U.C. SUBST.

R. 25 .23 l (b)( 1)(f)(i).

156. Based on the most current information reasonably available, the appropriate level of

decommissioning costs to be included in ETI' s cost of service is $1, 126,000.

157. ETI's appropriate total annual self-insurance storm damage reserve expense is

$8,270,000, comprised of an annual accrual of $4,400,000 to provide for average annual

expected storm losses, plus an annual accrual of $3,870,000 for 20 years to restore the

reserve from its current deficit.

158. ETI's appropriate target self-insurance storm damage reserve is $17,595,000.

159. ETl should continue recording its annual storm damage reserve accrual until modified by

a Commission order.

160. The operating costs of the Spindletop focili.ty are reasonable and necessary.

16 l. The operating costs of the Spindletop facility paid to PB Energy Storage Services are

eligible fuel expenses.

AfflliaU Traflsaclions

162. ETI affiliates charged ETI $78,998,777 for services during the test-year. The majority of

these O&M expenses-$69,098,041-were charged to ETI by ESI. The remaining

affiliate services were charged (or credited) to ETl by: Entergy Gulf States Louisiana,

L.L.C.; Entergy Arkansas. Inc.; Entergy Louisiana, LLC; Entergy Mississippi. Inc.;

Entergy Operations, Inc.; and non-regulated affiliates.

163. ESl follows a number of processes to ensure that affiliate charges are reasonable and

necessary and that ETI and its affiliates are charged the same rate for similar services.

These processes include: (a) the use of service agreements to define the level of service

required and the cost of those services; (b) direct billing of affiliate expenses where

possible; (c) reasonable allocation methodologies for costs that cannot be directly billed;

(d) budgeting processes and. controls to provide budgeted costs that are reasonable and

000000027

PUC Docket No. 39896 Order Page 28 or43

SOAH Docket N o . -

necessary to ensure appropriate levels of service to its customers; and (e) overs ight

controls by ETl's Affiliate Accounting and Allocations Department.

164. Affiliates charged expenses to ETI through 1292 project codes during the test-year.

164A. The $2,086, 145 in affiliate transactions related to sales and marketing expenses should be

reallocated using direct assignment. The following amounts should be allocated to all

retail classes in proportion to number of customers: (1) $46.490 for Project

ElOPCR56224 - Sales and Marketing - EGSI Texas; (2) $17,013 for Project

F3PCD10049 - Regulated Retail Systems O&M; and (3) $30,167 for Project

F3PPMMALI2 - Middle Market Mkt. Development. The remainder, $1,992,475, should

be assigned to (1) Genernl Service, (2) Large General Service and (3) Large Industrial

Power Service.

165. ETI agreed to remove the following affiliate transactions from its application:

(l) Project F3PPCASHCT (Contractual Altemative/Cashpo) in the amount of $2,553;

(2) Project F3PCSPETEI (Entergy-Tulane Energy Institute) in the amount of $14,288;

and (3) Project F5PPKATRPT (Stonn Cost Processing & Review) in the amount of $929.

166. The $356, 151 (which figure includes the $112,531 agreed to by ETD of costs associated

with Projects F5PCZUBENQ (Non-Qualified Post Retirement) and FSPPZNQBDU (Non

Qual Pension/Benf Dom Utl) are costs that are not reasonable and necessary for the

provision of electric utility service and are not in the public interest.

161. The $10,279 of costs associated with Project F3PPFXERSP (Evaluated Receipts

Settlement) are not normally-recurring costs and should not be recoverable.

168. The $19.714 of costs associated with Project F3PPEASTIN (Willard Eastin et al) are

related to ESI' s operations, it is more immediately related to Entergy Louisiana, Inc. and

Entergy New Orleans, Inc. As such, they are not recoverable from Texas ratepayers.

169. The $171,032 of costs associated with Project F3PPE9981S (Integrated Energy

Management for ESl) are research and development costs related to energy efficiency

programs. As such, they should be recovered through the energy efficiency cost recovery

factor rather than base rates.

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PUC Docket No. 39896 Order Page 29 of43

SOAH Docket No.

170. Except as noted in the above findings of fact Nos. 162-169, all remaining affiliate

transactions were reasonable and necessary, were allowable, were charged to ETI at a

price no higher than was charged by the supplying affiliate to other affiliates. and the rate

charged is a reasonable approximation of the cost of providing service.

Jurisdictional Cost Allocadon

171. ETI has one full or panial requirements wholesale customer - East Texas Electric

Cooperative, Inc.

172. ETI proposes that 150 MW be set as the wholesale load for developing retail rates in this

docket. Using l50 MW to set the wholesale load is reasonable. The 150 MW used to set

the wholesale load results in a retail production demand allocation factor of

95.3838 percent.

173. The 12 Coincident Peak (12 CP) allocation method is consistent with the approach used

by the FERC to allocate between jurisdictions.

174. Using 12CP methodology to allocate production costs between the wholesale and retail

jurisdictions is the best method to reflect cost responsibility and is appropriate based on

ETI's reliance on capacity purchases.

Class Cost AllocalWn and Rate Design

175. There is no express statutory authorization for ETI's proposed Renewable Energy Credits

rider (REC rider).

176. REC rider constitutes improper piecemeal ratemaking and should be rejected.

177. ETI's test-year expense for renewable energy credits, $623,303, is reasonable and

necessary and should be included in base rares.

178. Municipal Franchise Fees (MFF) is a rental expense paid by utilities for the right to use

public rights-of-way to loc:ite its facilities within municipal limits.

179. ETI is an integrated utility system. ETI' s facilities located within municipal limits

benefit all customers. whether the customers are located inside or outside of the

municipal limit~ .

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PUC Docket No. 39896 Order Page JO or43

SOAH Docket N o . -

180. Because all customers benefit from ETI's rental of municipal right-of-way, municipal

franchise fees should be charged to all customers in ETl's service area, regardless of

geographic location.

181. It is reasonable and consistent with the Public Utility Regulatory Act (PURA)

§ 33.008(b) that MFF be allocated to each customer class on the basis of in-city kilowatt

hour (kWh) sales, without an adjustment for the MFF rate in the municipality in which a

given kWh sale occurred.

182. The same reasons for allocating and collecting MFF as set out in Finding of Fact

Nos. 178-181 also apply to the allocation and collection of Miscellaneous Gross Receipts

Ta;ir;es. The company's proposed allocation of these costs to all retail customer classes

based on customer class revenues relative to total revenues is appropriate.

l 82A. ETI's proposed gross plant-based allocator is an appropriate method for allocating the

Texas franchise tax.

183. The Average and Excess (A&E) 4CP method for allocating capacity-related production

costs, including reserve equalization payments, to the retail classes is a standard

methodology and the most reasonable methodology.

184. The A&E 4CP method for allocating transmission costs to the retail classes is standard

and the most reasonable methodology.

185. ETI appropriately followed the rate class revenue requirements from its cost of service

study to allocate costs among customer classes. ETl's revenue allocation properly sets

rates at each class's cost of service.

l 86. It is reasonable for ETI to eliminate the service condition for Rate Groups A and C in

Schedule SHL [Street and Highway Lighting Service] that charges a $50 fee for any

replacement of a functioning light with a lower-wattage bulb.

187. It is appropriate to require ETI to prepare and file. as part of its next base rate case, a

study regarding the feasibility of instituting LED-based rates and, if the study shows that

such rates are feasible, ETI should file, proposals for LED-based lighting and traffic

signal rates in its next rate case.

000000030

PUC Docket No. 39896 Order Page Jl of43

SOAH Docket No-

188. An agreement was reached by the parties and approved by the Commission in Docket

No. 37744 that directed ETI to exclude, in its next rate case, the life-o f-contract demand

ratchet for existing customers in the Large Industrial Power Service (LIPS), Large

Industrial Power Service-Time of Day, General Service, General Service,-Time of Day,

Large General Service, and Large General Service-Time of Day rate schedules.

189. ETI's proposed tariffs in this case did not remove the life-of-contract demand ratchet

from these rate schedules consistent with the parties ' agreement in Docket No. 37744.

190. A perpetual billing obligation based on a life-of-contract demand ratchet, as ETI

proposed, is not reasonable.

191 . ETI' s proposed LIPS and LIPS Time of Day tariffs should be modified to reflect the

agreement that was adopted by the Commission as just and reasonable in Docket

No. 37744. Accordingly, these tariffs should be modified as set out in Findings of Fact

No. 192- 194.

192. ETI's Schedule LIPS and LIPS Time of Day§ VI should be changed to read:

DETERMINATCON OF BILLING LOAD

The kW of Billing Load will be the greatest of the following:

(A) The Customer's maximum measured 30-minute

demand during any 30-minute interval of the current billing

month, subject to § § lll, IV and V above; or

(B) 75% of Contract Power as defined in§ VII: or

(C) 2,500 kW.

193. ETI's Schedule LIPS and LIPS Time of Day§ VU should be changed to read:

DETERMINATION OF CONTRACT POWER

Unless Company gives customer written notice to the contrary,

Contract Power will be defined as below:

Contract Power - the highest load established under§ VI(A) above

during the 12 months ending with the current month. For the

initial 12 months of Customer's service under the currently

effective contra<;t, the Contract Power shall be the kW specified in

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PUC Docket No. J9K96 Order Page32 of4J

SOAH Docket N o . -

the currently effective contract unless exceeded in any month

during the initial 12-month period.

194. The Large General Service. Large General Service-Time of Day. General Service, and

General Service-Time of Day schedules should be similarly revised to eliminate ETl's

life-of-contract demand ratchet.

195. In its proposed rate design for the LIPS class, the company took a conservative approach

and increased the current rates by an equal percentage. This minimized customer bill

impacts while maintaining cost causation principles on a rate class basis.

196. It is a reasonable move towards cost of service to add a customer charge of $630 to the

LIPS rate schedule with subsequent increases to be considered in subsequent base rate

cases.

197. lt is a reasonable move towards cost of service to slightly decrease the LIPS energy

charges and increase the demand charges as proposed by Staff witness

Will iam B. Abbott.

198. DOE proposed a new Schedule LIPS rider-Schedule "Schedulable Intermittent

Pumping Service" (SIPS) for load schedulable at least four weeks in advance, that occurs

in the off-season (November through April), that can be cancelled at any time, and for

load not lasting more than 80 hours in a year. For customers whose loads match these

SIPS characteristics (for example, DOE's Strategic Petroleum Reserve). the 12-month

demand ratchet provision of Schedule LIPS does not apply to demands set under the

provisions of the SIPS rider. The monthly demand set under the SIPS provisions would

be applicable for billing purposes only in the month in which it occurred. ln short, if a

customer set a 12-month ratchet demand in that month, it would be forgiven and not

applicable in the succeeding 12 months.

199. OOE's proposed Schedule SlPS is not restricted solely to the DOE and should be

adopted. It more closely addresses specific customer characteristics and provides for

cost-based rates, as does another ETI rider applicable to Pipeline Pumping Service.

200. Standby Maintenance Service (SMS) is available to customers who have their own

generation equipment and who contract for this service from ETI.

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PUC Docket No. 39896 Order Page 33 of ~3

SOAH Docket No

201. P.U.C. SUBST. R. 25.242(k)(l) provides that rates for sales of standby an<l maintenance

power to qualifying facilities should recognize system wide costing principles and should

not be discriminatory.

202. lt is reasonable to move Schedule SMS toward cost of service by: (a) adding a customer

charge equivalent to that of the LIPS rate schedule only for SMS customers not

purchasing supplementary power under another applicable rate; and (b) revising the tariff

as follows:

Distribution Transmiss ion

Charge

(less than 69KV) (69KV and greater)

Billing Load Charge ($/kW):

Standby $2.46 $0.79

Maintenance $2.27 $0.60

Non-Fuel Enen~v Chante (¢/kWh)

On-Peak 4.245¢ 4.074¢

Off-Peak 0 .575¢ 0.552¢

203. ETI's Additional Facilities Charge rider (Schedule AFC) prescribes the monthly rental

charge paid by a customer when ETI installs facilities for that customer that would not

normally be supplied. such as line extensions, transformers, or dual feeds.

204. ETI ex:isting Schedule AFC provides two pricing options. Option A is a monthly charge.

Option B. which applies when a customer elects to amortize the directly-assigned

facilities over a shorter term ranging from one to ten years, has a variable monthly

charge. There is also a term charge that applies after the facility has been fully

depreciated.

205. It is reasonable and cost-based to reduce the Schedule AFC Option A rate to 1.20 percent

per month of the installed cost of all facilities included in the agreement for additional

facilities.

000000033

PUC Docket No. 39896 Order Page 34 of 43

SOAH Docket No. -

206. It is reasonable and cost-based to reduce the Schedule AFC Option B monthly rnte and

the Post Term Recovery Charge as follows:

Selected Recovery Term Recovery Term Charge Post Recovery Term Charge

l 10.88% 0.35%

2 5.39% 0.35%

3 3.92% 0.35%

4 3.20% 0.35%

5 2.76% 0.35%

6 2.48% 0.35%

7 2.28% 0.35%

8 2.14% 0.35%

9 l .97% 0.35%

10 1.94% 0.35%

207. The revisions in the above findings of fact to Schedule AFC rates reasonably reflect the

costs of running. operating, and maintaining the directly-assigned facilities.

208. It is reasonable to modify the Large General Service rate schedule by increasing the

demand charge from $10.25 to $12.81; decreasing the energy charge from $.01023 to

$.00513; and maintaining the customer charge at $425.05.

209. Staffs proposed change to the General Service (GS) rate schedule to gradually move GS

customers towards their cost of service by recommending a decrease in the customer

charge from the current rate of $41.09 to $39.91 . and a decrease in the energy charges is

reasonable and should be adopted.

210. ETI's Residential Service (RS) rate schedule is composed of two elements: a customer

charge of $5 per month and a consumption-based energy charge. The Energy charge is a

fixed rate of 5.802¢ per kWh from May through October (summer). [n the months

November through April (winter), the rates are structured as a declining block, in which

the price of each unit is reduced after a defined level of usage.

211. ETI' s Schedule RS declining block rate structure is contrary to energy-efficiency efforts

and the Legislature's goal of reducing both energy demand and energy consumption in

Tex.as, as stated in PURA § 39.905.

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PUC Docket No. 39896 Order P:ige 35 of 43

SOAH Docket No

212. Schedule RS winter block rates should be modified consistent with the goal set out in

PURA § 39.905, with the initial ph~e- in of a 20 percent reduction in the block

differential proposed by ETI and subsequent reductions should be reviewed for

consideration at the occurrence of each rate case filing.

2 13. Other elements of Schedule RS are just and reasonable.

Fuel Reconciliation

2 14. ETI incurred $61 6,248,686 in natural-gas expenses during the reconciliation period,

which is from July 2009 through June 2011.

215. ETI purchased natural gas in the monthly and daily markets and pursuant to a long-term

contract with Enbridge Inc. pipeline. ETI also transported gas on its own account and

negotiated operational balancing agreements with various pipeline companies.

216. ETI employed a diversified portfolio of gas supply and transponation agreements to meet

its natural-gas requirements, and ETI prudently managed its gas-supply contracts.

217. ETI's natural gas expenses were reasonable and necessary expenses incurred to provide

reliable electric service to retail customers.

2 18. ETI incurred $90,821,317 in coal eApenses during the reconciliation period .

219. ET[ prudently managed its coal and coal-related contracts during the reconciliation

period.

220 . ETI monitored and audited coal invoices fro m Louisiana Generating, LLC for coal

burned at the Big Cajun II, Unit 3 facility.

221. ETI's coal expenses were reasonable and necessary expenses incurred to provide reliable

ele·ctric service to retail customers.

222. ETI incurred $990.041.434 in purchased-energy expenses during the reconciliation

period.

223. The Entergy System's planning and procurement processes for purchased-power

produced a reasonable mix of purchased resources at a reasonable price.

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PUC Docket No. 39896 Order Page J6 of 43

SOAH Docket No.

224. During the reconciliation period, ETI took advantage of opportunities in the fuel and

purchased-power markets to reduce costs and to mitigate against price volatility.

225. ETI's purchased-energy expenses were reasonable and necessary expenses incurred to

provide reliable electric service to retail customers.

226. ETI provided sufficient contemporaneous documentation to support rhe reasonableness of

ils purchased-power planning and procurement processes and its actual power purchases

<luring the reconciliation period.

227. The Entergy system sold power off system when the revenues were expected to be more

lhan the incremental cost of supplying generation for the sale, subject to maintaining

adequate reserves.

228. The System Agreement is the tariff approved by the FERC that provides the basis for the

operation and planning of the Entergy system, including the six operating companies.

The System Agreement govems the wholesale-power transactions among the operating

companies by providing for joint operation and establishing the bases for equalization

among the operating companies, including the costs associated with the construction,

ownership, and operation of the Entergy system facilities.

229. Under the terms of the Entergy System Agreement, ETI was allocated its share of

revenues and expenses from off-system sales.

230. During the reconciliation period, ETI recorded off-system sales revenue in the amount of

$376,671.969 in FERC Account 447 and credited 100 percent of off-system sales

revenues and margins from off-system sales to eligible fuel expenses.

231. ETI properly recorded revenues from off-system sales and credited those revenues to

eligible fuel costs.

232. The Entergy system consists of six operating companies, including ETI, which are

planned and operated as a single, integrated electric system under the terms of the System

Agreement.

2JJ. Service schedule MSS-1 of the System Agreement determines how the capability and

ownership costs of reserves for the Entergy system are equalized among the operating

000000036

PUC Docket No. 39896 Order Page 37 of 43

SOAR Docket No.-

companies. These inter-system "reserve equalization" payments are the result of a

formula rate related to the Entergy system's reserve capability that is applied on a

monthly basis.

234. Reserve capability under service schedule MSS-1 is capability in excess of the Entergy

system's actual or planned load built or acquired to ensure the reliable, efficient operation

of the electric system.

235. By approving service schedule MSS-1, the FERC has approved the method by which the

operating companies share the cost of maintaining sufficient reserves to provide

reliability for the Entergy system as a whole.

236. Service schedule MSS-3 of the System Agreement determines the pricing and exchange

of energy among the operating companies. By approving service schedule MSS-3, the

FERC has approved the method by which the operating companies are reimbursed for

energy sold to the exchange energy pool and how that energy is purchased.

237. Service schedule MSS-4 of the System Agreement sets forth the method for determining

the payment for unit power purchases between operating companies. By approving

service schedule MSS-4, the FERC has approved the methodology for pricing

inter-operating company unit power purchases.

238. The Entergy system is planned using multi-year. annual, seasonal. monthly. and next-day

horizons. Once the planning process has identified the most economical resources that

can be used to reliably meet the aggregate Entergy system demand, the next step is to

procure the fuel necessary to operate the generating units as planned and acquire

wholesale power from the market.

239. Once resources are procured to meet forecasted load, the Entergy system is operated

during the current day using all the resources available to meet the total Entergy system

demand.

240. After current-day operation, the System Agreement prescribes an accounting protocol to

bill the costs of operating the system to the individual operating companies. This

protocol is implemented via the intra-system bill to each operating company on a

monthly basis.

000000017

PUC Docket No. 39896 Order Page 38 of43

SOAH Docket N o . -

241. ETI purchased power from affiliated operating companies per the terms of service

schedule MSS-3 of the System Agreement. The payments made under Schedule MSS-3

to affiliated operating companies are reasonable and necessary, and the FERC has

approved the pricing formula and the obligation to purchase the energy. ETI pays the

same price per megawatt hour for energy under service schedule MSS-3 as does any

other operating company purchasing energy under service schedule MSS-3 during the

same hour.

242. The Spindletop facility is used primarily to ensure gas-supply reliability and guard

against gas-supply curtailments that can occur as a result of extreme weather or other

unusual events.

243. The Spindletop facility provides a secondary benefit of flexibility in gas supply. ETI can

back down gas-fired generation to take advantage of more economical wholesale power,

or use gas from storage to supplement gas-fired generation when load increases during

the day and thereby avoid more expensive intra-day gas purchases.

244. ETI's customers received benefits from the Spindletop facility during the reconciliation

period through reliable gas supplies and ETI's monthly and daily storage activity.

245. ETI prudently managed the Spindletop facility to provide reliability and flexibility of gas

supply for the benefit of customers.

246. ETI proposed new loss factors. based on a December 2010 line-loss study, to be applied

for the purpose of allocating its costs to its wholesale customers and retail customer

classes.

246A. ETI's 2010 line-loss factors should be used to reconcile ETl's fuel costs. Therefore,

ETI's fuel reconciliation over-recovery should be reduced by $3,981,271.

247. ETI's proposed loss factors are reasonable and shall be implemented on a prospective

basis as a result of this final order.

248. ETI seeks a special-circumstances exception to recover $99,715 resulting from the

FERC' s reallocation of rough production equalization costs in FERC Order No. 720-A,

and to treat such costs as eligible fuel expense.

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PUC Docket No. 39896 Order Page 39 or 43

SOAH Docket N o . -

249. Special circumstances exist and it is appropriate for ETI to_recover the rough production

cost equalization costs reallocated to ETI as a result of the FERC's decision in Order

No. 720-A.

Other Issues

250. A deferred accounting of ETl's Midwest Independent Transmission System Operator

(MISO) transition expenses is not necessary to carry out any requirement of PURA.

251. ETI should include $1.6 million in base rates for MlSO transition expense.

252. Deleted.

253. Transmission Cost Recovery Factor baseline values should be set during the compliance

phase of this docket, after the Commission makes final rulings on the various contested

issues that may affect this calculation.

254. Distribution Cost Recovery Factor baseline values should be set during the compliance

phase of this docket, after the Commission makes final rulings on the various contested

issues that may affect this calculation.

255. The appropriate amount for ETI's purchased-power capacity expense to be included in

base rates is $245,965,886.

256. The amount of ETI's purchased-power capacity expense includes tbird-pany contracts,

legacy affiliate contracts. other affiliate contracts, and reserve equalization. Whether the

amounts for all contracts should be included in the baseline for a purchased-capacity rider

that may be approved in Project No. 39246 is an issue that should be decided in that

project.

III. Conclusions of Law

1. ETI is a "public utility" as that term is defined in PURA § l l.004(1) and an "electric

utility" as that term is defined in PURA § 3 l.002(6).

2. The Commission exercises regulatory authority over ETI and jurisdiction over the subject

matter of this application pursuant to PURA §§ 14.00 1, 32.001, 32.101, 33.002, 33.051,

36.101-.111, and 36.203.

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PUC Docket No. 39896 Order Page 40 of 43

SOAH Docket N o . -

3. SOAH has jurisdiction over matters related to the conduct of the hearing an<l the

preparation of a proposal for decision in this docket, pursuant to PURA § 14.053 and

TEX. GOV'T CODE ANN.§ 2003 .049.

4. This <locket was processed in accordance with the requirements of PURA and the Texas

Administrative Procedure Act. Tex. Gov't Code Ann. Chapter 200 I.

5. ETI provided notice of its application in compliance with PURA§ 36.103, P.U.C. PROC.

R. 22.Sl(a), and P.U.C. SUBST. R. 25.235(b)(l)~(3).

6. Pursuant to PURA§ 33.001, each municipality in ETI's service area that has not ceded

jurisdiction to the Commission has jurisdiction over the company's application, which

seeks to change rates for distribution services within each municipality.

7. Pursuant to PURA § 33.051, the Commission ha~ jurisdiction over an appeal from a

municipality's rate proceeding.

8. ETI has the burden of proving that the rate change it is requesting is just and reasonable

pursuant to PURA§ 36.006.

9. In compliance with PURA § 36.051, ETI' s overall revenues approved in this proceeding

permit ETI a reasonable opportunity to earn a reasonable return on its invested capital

used and useful in providing service to the public in excess of its reasonable and

necessary operating expenses.

10. Consistent with PURA § 36.053, the rates approved in this proceeding are. based on

original cost, less depreciation. of property used and useful to ETI in providing service.

11 . The ADFIT adjustments approved in this proceeding are consistent with PURA § 36.059

and P.U.C. SUBST. R. 25.23l(c)(2)(C)(i).

12. lnduding the cash working capital approved in this proceeding in ETI's rate base is

consistent with P.U.C. SUBST. R. 25.23l(cX2)(B)(iii)(IV), which allows a reasonable

allowance for cash working capital to be included in rate base.

13. The ROE and overall rate of return authorized in this proceeding are consistent with the

requirements of PURA §§ 36.051 and 36.052.

000000040 I

PUC Docket No. 39896 Order Page4l of 43

SOAH Docket N o . -

14. The affiliate expenses approved in this proceeding and included in ETI's rates meet the

affiliate payment standards articulated in PURA §§ 36.051, 36.058, and Railroad

Commission of Texas v. Rio Grcznde Valley Gas Co .. 683 S.W.2d 783 (Tex.. App.-

Austin 1984, no writ).

15. The ADFIT adjustments approved in this proceeding are consistent with PURA§ 36.059

and P.U.C. SUBST. R. 25.23 l(c)(2)(C)(i).

16. Pursuant to P.U.C. Suesr. R. 25.23l(b)(l)(F), the decommissioning expense approved in

this case is based on the most current infonnation reasonably available regarding the cost

of decommissioning, the balance of funds in the decommissioning trust, anticipated

escalation rates, the anticipated return on the funds in the decommissioning trust, and

other relevant factors.

17. ETI has demonstrated that its eligible fuel expenses during the reconciliation period were

reasonable and necessary expenses incurred to provide reliable electric service to retail

customers as required by P.U.C. SUBST. R. 25.236(d)( l)(A). ETI has properly accounted

for the amount of fuel -related revenues collected pursuant to the fuel factor during the

reconciliation period as required by P.U.C. SUBST. R. 25.236(d)(l)(C).

l8. ETI prudently managed the dispatch. operations. and maintenance of its fossi l plants

during the reconciliation period.

19. The reconciliation perio<l level operating and maintenance expenses for the Spindletop

facility are eligible fuel expenses pursuant to P.U.C. S UBST. R. 25.236(a).

19A. Fuel factors under P.U.C. SUBST. R. 25.237(a)(3) are temporary rates subject to revision

in a reconciliation proceeding.

19B. P.U.C. SUBST. R. 25.236(d)(2) defines the scope of a fuel reconciliation proceeding to

include any issue related to the reasonableness of a utility's fuel expenses and whether

the utility has over- or under-recovered its reasonable fuel expenses. It is proper to use

the new line-loss study to calculate Entergy's fuel reconciliation and over-recovery.

20. Special circumstances are warranted pursuant to P.U.C. SUBST. R. 25.236(a)(6) to

recover rough production equalization payments reallocated to ETI by the FERC.

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PUC Docket No. 39896 Order Page 42 or .&3

SOAH Docket N o . -

21. ETI's rates, as approved in this proceeding, are just and reasonable in accordance with

PURA § 36.003.

IV. Ordering Paragraphs

(n accordance with these findings of fact and conclusions of law, the Commission issues

the following orders:

I. The proposal for decision prepared by the SOAH ALls is adopted to the extent consistent

with this Order.

2. ETI's application is granted to the extent consistent with this Order.

3. ETI shall file in Tariff Control No. 40742 Compliance Tariff Pursuant to Final Order in

Docket No. 39896 (Application of Entergy Texas, Inc. for Authority to Change Rates,

Reconcile Fuel Costs, and Obtain Deferred Accounting Treatment) tariffs consistent with

this Order within 20 days of the date of this Order. No later than ten days after the date

of the tariff filings, Staff shall file its comments recommending approval, modification,

or rejection of the individual sheets of the tariff proposal. Responses to the Stnff's

recommendation shall be filed no later than 15 days after the filing of the tariff. The

Commission shall by letter approve, modify, or reject each tariff sheet, effective the date

of the letter.

4. The tariff sheets shall be deemed approved and shall become effective on the expi.ration

of 20 days from the date of filing, in the absence of written notification of modific::ition or

rejection by the Conunission. If any sheets are modified or rejected, Erl shall file

proposed revisions of those sheets in accordance with the Commission's letter within ten

days of the date of that letter, and the review procedure set out above shall apply to the

revised sheets.

5. Copies of all tariff-related filings shall be served on all parties of record.

6. ETI shall prepare and file as pan of its next base rate case a study regarding the

feasibility of instituting LED-based rates and, if I.he study shows I.hat such rates are

feasible. ETI should file proposols for LED-based lighting and traffic signal rates in that

case. If ETI h11s LED lighting customers taking service, the study sha ll include detailed

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PUC Docket No. 39896

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