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HOUSE BILL NO. 337
INTRODUCED BY E. BERGSAGEL, J. LYNCH, W. MCNUTT, J. QUILICI, F. THOMAS, B. WILSON
AN ACT GENERALLY REVISING UNIVERSAL SYSTEM BENEFITS ELECTRIC LAWS; DEFINING "INTERESTED PERSON", "LARGE CUSTOMER", AND "QUALIFYING LOAD" FOR UNIVERSAL SYSTEM BENEFITS PROGRAMS PURPOSES; ESTABLISHING UNIVERSAL SYSTEM BENEFITS RATES FROM JANUARY 1, 1999, THROUGH JULY 1, 2003; ELIMINATING ACCESS RECIPROCITY BETWEEN DISTRIBUTION SERVICES PROVIDERS; ESTABLISHING UNIVERSAL SYSTEM BENEFITS PROGRAMS FUNDS; ESTABLISHING THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES AS FUND ADMINISTRATORS AND PROVIDING EACH AGENCY WITH RULEMAKING AUTHORITY TO ADMINISTER THE FUNDS; REQUIRING THE DEPARTMENT OF REVENUE TO REVIEW UNIVERSAL SYSTEM BENEFITS PROGRAMS CREDITS IF THE CREDITS ARE CHALLENGED; PROVIDING THE DEPARTMENT OF REVENUE WITH RULEMAKING AUTHORITY; AMENDING SECTIONS 18-4-132, 69-8-103, 69-8-402, AND 69-8-411, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 18-4-132, MCA, is amended to read:
"18-4-132. Application. (1) This chapter applies to expenditure of public funds irrespective of their source, including federal assistance money, by this state acting through a governmental body, as defined in 18-4-123, under any contract. This chapter does not apply to either grants or contracts between the state and its political subdivisions or other governments, except as provided in part 4. This chapter also applies to the disposal of state supplies. This chapter or rules adopted pursuant to this chapter do not prevent any governmental body or political subdivision from complying with the terms and conditions of any grant, gift, bequest, or cooperative agreement.
(2) This chapter does not apply to construction contracts.
(3) This chapter does not apply to expenditures of or the authorized sale or disposal of equipment purchased with money raised by student activity fees designated for use by the student associations of the university system.
(4) This chapter does not apply to contracts entered into by the Montana state lottery that have an aggregate value of less than $250,000.
(5) This chapter does not apply to employment of:
(a) a registered professional engineer, surveyor, real estate appraiser, or registered architect;
(b) a physician, dentist, pharmacist, or other medical, dental, or health care provider;
(c) an expert witness hired for use in litigation, a hearings officer hired in rulemaking and contested case proceedings under the Montana Administrative Procedure Act, or an attorney as specified by executive order of the governor;
(d) consulting actuaries;
(e) a private consultant employed by the student associations of the university system with money raised from student activity fees designated for use by those student associations;
(f) a private consultant employed by the Montana state lottery;
(g) a private investigator licensed by any jurisdiction; or
(h) a claims adjuster.
(6) (a) This chapter does not apply to electric energy purchase contracts by the university of Montana or the Montana state university, as defined in 20-25-201.
(b) Any savings accrued by the university of Montana or Montana state university in the purchase or acquisition of energy must be retained by the board of regents of higher education for university allocation and expenditure."
Section 2. Section 69-8-103, MCA, is amended to read:
"69-8-103. Definitions. As used in this chapter, unless the context requires otherwise, the following definitions apply:
(1) "Aggregator" or "market aggregator" means an entity, licensed by the commission, that aggregates retail customers,
and purchases electric energy, and takes title to electric energy as an intermediary for sale to retail customers.
(2) "Assignee" means any entity, including a corporation, partnership, board, trust, or financing vehicle, to which a utility assigns, sells, or transfers, other than as security, all or a portion of the utility's interest in or right to transition property. The term also includes an entity, corporation, public authority, partnership, trust, or financing vehicle to which an assignee assigns, sells, or transfers, other than as security, the assignee's interest in or right to transition property.
(3) "Board" means the board of investments created by 2-15-1808.
(4) "Broker" or "marketer" means an entity, licensed by the commission, that acts as an agent or intermediary in the sale and purchase of electric energy but that does not take title to electric energy.
(5) "Cooperative utility" means:
(a) a utility qualifying as an electric cooperative pursuant to Title 35, chapter 18; or
(b) an existing municipal electric utility as of May 2, 1997.
(6) "Customer" or "consumer" means a retail electric customer or consumer. The university of Montana, pursuant to 20-25-201(1), and Montana state university, pursuant to 20-25-201(2), are each considered a single retail electric customer or consumer with a single individual load.
(7) "Distribution facilities" means those facilities by and through which electricity is received from a transmission services provider and distributed to the customer and that are controlled or operated by a distribution services provider.
(8) "Distribution services provider" means a
person controlling or operating utility owning distribution facilities for
distribution of electricity to the public.
(9) "Electricity supplier" means any person, including aggregators, market aggregators, brokers, and marketers, offering to sell electricity to retail customers in the state of Montana.
(10) "Financing order" means an order of the commission adopted in accordance with 69-8-503 that authorizes the imposition and collection of fixed transition amounts and the issuance of transition bonds.
(11) (a) "Fixed transition amounts" means those nonbypassable rates or charges, including but not limited to:
(iii) disconnection; and
(iv) termination rates and charges that are authorized by the commission in a financing order to permit recovery of transition costs and the costs of recovering, reimbursing, financing, or refinancing the transition costs and of acquiring transition property through a plan approved by the commission in the financing order, including the costs of issuing, servicing, and retiring transition bonds.
(b) If requested by the utility in the utility's application for a financing order, fixed transition amounts must include nonbypassable rates or charges to recover federal and state taxes in which the transition cost recovery period is modified by the transactions approved in the financing order.
(12) "Functionally separate" means a utility's separation of the utility's electricity supply, transmission, distribution, and unregulated retail energy services assets and operations.
(13) "Interested person" means a retail electricity customer, the consumer counsel established in 5-15-201, the commission or a utility.
(14) "Large customer" means, for universal system benefits programs purposes, a customer with an individual load greater than a monthly average of 1,000 kilowatt demand in the previous calendar year for that individual load.
(13)(15) "Local governing body" means a local board of trustees of a rural electric cooperative. (14)(16) "Low-income customer" means those energy consumer households and families with incomes at or below
industry-recognized levels that qualify those consumers for low-income energy-related assistance. (15)(17) "Nonbypassable rates or charges" means rates or charges that are approved by the commission and imposed on a
customer to pay the customer's share of transition costs or universal system benefits program programs costs even if the
customer has physically bypassed either the utility's transmission or distribution facilities. (16)(18) "Pilot program" means a program using a representative sample of residential and small commercial customers
to assist in developing and offering customer choice of electric electricity supply for all residential and commercial
customers. (17)(19) "Public utility" means any electric utility regulated by the commission pursuant to Title 69, chapter 3, on May 2,
1997, including the public utility's successors or assignees.
(20) "Qualifying load" means, for payments and credits associated with universal system benefits programs, all nonresidential demand-metered accounts of a large customer within the utility's service territory in which the customer qualifies as a large customer.
(18)(21) "Transition bondholder" means a holder of transition bonds, including trustees, collateral agents, and other
entities acting for the benefit of that holder. (19)(22) "Transition bonds" means any bond, debenture, note, interim certificate, collateral, trust certificate, or other
evidence of indebtedness or ownership issued by the board or other transition bonds issuer that is secured by or payable
from fixed transition amounts or transition property. Proceeds from transition bonds must be used to recover, reimburse,
finance, or refinance transition costs and to acquire transition property. (20)(23) "Transition charge" means a nonbypassable rate or charge to be imposed on a customer to pay the customer's
share of transition costs. (21)(24) "Transition cost recovery period" means the period beginning on July 1, 1998, and ending when a utility
customer does not have any liability for payment of transition costs. (22)(25) "Transition costs" means:
(a) a public utility's net verifiable generation-related and electricity supply costs, including costs of capital, that become unrecoverable as a result of the implementation of this chapter or of federal law requiring retail open access or customer choice;
(b) those costs that include but are not limited to:
(i) regulatory assets and deferred charges that exist because of current regulatory practices and can be accounted for up to the effective date of the commission's final order regarding a public utility's transition plan and conservation investments made prior to universal system benefits charge implementation;
(ii) nonutility and utility power purchase contracts, including qualifying facility contracts;
(iii) existing generation investments and supply commitments or other obligations incurred before May 2, 1997, and costs arising from these investments and commitments;
(iv) the costs associated with renegotiation or buyout of the existing nonutility and utility power purchase contracts, including qualifying facilities and all costs, expenses, and reasonable fees related to issuing transition bonds; and
(v) the costs of refinancing and retiring of debt or equity capital of the public utility and associated federal and state tax liabilities or other utility costs for which the use of transition bonds would benefit customers.
(23)(26) "Transition period" means the period beginning on July 1, 1998, and ending on July 1, 2002, unless otherwise
extended pursuant to this chapter, during which utilities may phase in customer choice of electricity supplier. (24)(27) "Transition property" means the property right created by a financing order, including without limitation the
right, title, and interest of a utility, assignee, or other issuer of transition bonds to all revenue, collections, claims, payments,
money, or proceeds of or arising from or constituting fixed transition amounts that are the subject of a financing order,
including those nonbypassable rates and other charges and fixed transition amounts that are authorized by the commission
in the financing order to recover transition costs and the costs of recovering, reimbursing, financing, or refinancing the
transition costs and acquiring transition property, including the costs of issuing, servicing, and retiring transition bonds. Any
right that a utility has in the transition property before the utility's sale or transfer or any other right created under this
section or created in the financing order and assignable under this chapter or assignable pursuant to a financing order is only
a contract right. (25)(28) "Transmission facilities" means those facilities that are used to provide transmission services as determined by
the federal energy regulatory commission and the commission. (26)(29) "Transmission services provider" means a person controlling or operating transmission facilities. (27)(30) "Universal system benefits charge" means a nonbypassable rate or charge to be imposed on a customer to pay
the customer's share of universal system benefits program programs costs. (28)(31) "Universal system benefits programs" means public purpose programs for:
(a) cost-effective local energy conservation;
(b) low-income customer weatherization;
(c) renewable resource projects and applications, including those that capture unique social and energy system benefits or that provide transmission and distribution system benefits;
(d) research and development programs related to energy conservation and renewables;
(e) market transformation designed to encourage competitive markets for public purpose programs; and
(f) low-income energy assistance.
(29)(32) "Utility" means any public utility or cooperative utility."
Section 3. Section 69-8-402, MCA, is amended to read:
"69-8-402. Universal system benefits programs. (1) Universal system benefits programs are established for the state of Montana to ensure continued funding of and new expenditures for energy conservation, renewable resource projects and applications, and low-income energy assistance during the transition period and into the future.
(2) Beginning January 1, 1999, 2.4% of each utility's annual retail sales revenue in Montana for the calendar year ending
December 31, 1995, is established as the
annual initial funding level for universal system benefits programs. To collect this
amount of funds on an annualized basis in 1999, the commission shall establish rates for utilities subject to its jurisdiction
and the governing boards of cooperatives shall establish rates for the cooperatives. Unless modified Except as provided in
subsection (7), this funding level remains these universal system benefits charge rates must remain in effect until July 1,
(a) The recovery of all universal system benefits programs costs imposed pursuant to this section is authorized through the imposition of a universal system benefits charge assessed at the meter for each local utility system customer as provided in this section.
(b) Utilities must receive credit toward annual funding requirements for a utility's internal programs or activities that qualify as universal system benefits programs, including those portions of expenditures for the purchase of power that are for the acquisition or support of renewable energy, conservation-related activities, or low-income energy assistance, and for large customers' programs or activities as provided in subsection (7). The department of revenue shall review claimed credits of the utilities and large customers pursuant to [section 7].
utility utility's distribution services provider at which the sale of power for final end-use end use occurs is the
utility that receives credit for the universal system benefits program programs expenditure.
(d) A customer's distribution services provider shall collect universal system benefits funds less any allowable credits.
(d)(e) For a utility to receive credit for low-income related expenditures, the activity must have taken place in Montana. (e)(f) If a utility's or a large customer's credit for internal activities does not satisfy the annual funding provisions of
subsection (2), then the utility shall make a payment to the universal system benefits fund established in [section 5] for any
(3) Cooperative utilities may collectively pool their statewide credits to satisfy their annual funding requirements for universal system benefits programs and low-income energy assistance.
(4) A utility's transition plan must describe how the utility proposes to provide for universal system benefits programs, including the methodologies, such as cost-effectiveness and need determination, used to measure the utility's level of contribution to each program.
(5) A utility's minimum annual funding requirement for low-income energy and weatherization assistance is established at 17% of the utility's annual universal system benefits funding level and is inclusive within the overall universal system benefits funding level.
(a) A utility must receive credit toward the utility's low-income energy assistance annual funding requirement for the utility's internal low-income energy assistance programs or activities.
(b) If a utility's credit for internal activities does not satisfy its annual funding requirement, then the utility shall make a payment for any difference to the universal low-income energy assistance fund established in [section 5].
(6) An individual customer may not bear a disproportionate share of the local utility's funding requirements, and a sliding scale must be implemented to provide a more equitable distribution of program costs.
(7) (a) A large customer
with loads greater than 1,000 kilowatts shall:
(i) shall pay a universal system benefits
program programs charge with respect to the large customer's qualifying load
equal to the lesser of:
(A) $500,000, less the large customer credits provided for in this subsection (7); or
(B) the product of 0.9 mills per kilowatt hour multiplied by the large customer's total kilowatt hour purchases, less large customer credits with respect to that qualifying load provided for in this subsection (7);
(ii) must receive credit toward that large customer's
annual universal system benefits charge for internal expenditures and
activities that qualify as a universal system benefits program programs expenditure, and these internal expenditures must
include but not be limited to:
(A) expenditures that result in a reduction in the consumption of electrical energy in the large customer's facility; and
(B) those portions of expenditures for the purchase of power at retail or wholesale that are for the acquisition or support of renewable energy or conservation-related activities.
Customers Large customers making these expenditures must receive a credit against the large customer's annual
universal system benefits charge, except that any of those amounts expended in a calendar year that exceed that large
customer's universal system benefits charge for the calendar year must be used as a credit against those charges in future
years until the total amount of those expenditures has been credited against that large customer's universal system benefits
(8) A public utility shall prepare and submit an annual summary report of the public utility's activities relating to all universal system benefits programs to the commission, the department of revenue, and the transition advisory committee provided for in 69-8-501. A cooperative utility shall prepare and submit annual summary reports of activities to the cooperative utility's respective local governing body, the statewide cooperative utility office, and the transition advisory committee. The statewide cooperative utility office shall prepare and submit an annual summary report of the activities of individual cooperative utilities, including a summary of the pooling of statewide credits, as provided in subsection (3), to the department of revenue and to the transition advisory committee. The annual report of a public utility or of the statewide cooperative utility office must include but is not limited to:
(a) the types of internal utility and customer programs being used to satisfy the provisions of this chapter;
(b) the level of funding for those programs relative to the annual funding requirements prescribed in subsection (2); and
(c) any payments made to the statewide funds in the event that internal funding was below the prescribed annual funding requirements.
(9) A utility or large customer filing for a credit shall develop and maintain appropriate documentation to support the utility's or the large customer's claim for the credit.
(10) (a) A large customer claiming credits for a calendar year shall submit an annual summary report of its universal system benefits programs activities and expenditures to the department of revenue and to the large customer's utility. The annual report of a large customer must identify each qualifying project or expenditure for which it has claimed a credit and the amount of the credit. Prior approval by the department of revenue or the utility is not required, except as provided in subsection (10)(b).
(b) If a large customer claims a credit that the department of revenue disallows in whole or in part, the large customer is financially responsible for the disallowance. A large customer and the large customer's utility may mutually agree that credits claimed by the large customer be first approved by the utility. If the utility approves the large customer credit, the utility may be financially responsible for any subsequent disallowance."
Section 4. Section 69-8-411, MCA, is amended to read:
Reciprocity Nondiscriminatory access -- reciprocity. (1) Except as provided in 69-8-311, all electricity
suppliers must be afforded open, fair, and nondiscriminatory access to customers and a comparable opportunity to compete. (2) A distribution services provider or the distribution services provider's affiliates may not use another distribution
services provider's facilities in the state of Montana to sell electricity to customers in the state of Montana unless the first
distribution services provider or the distribution services provider's affiliates offer comparable and nondiscriminatory access
to the distribution services provider's distribution facilities. A distribution services provider or the distribution services
provider's affiliates may not use another distribution services provider's facilities in the state of Montana to sell electricity to
customers in the state of Montana unless the first distribution services provider or the distribution services provider's
affiliates offer comparable and nondiscriminatory access to the distribution services provider's distribution facilities within
the state of Montana."
Section 5. Funds established -- fund administrators designated -- purpose of funds -- department rulemaking authority to administer funds. (1) If, pursuant to 69-8-402(2)(f) or (5)(b), there is any positive difference between credits and the annual funding requirement, the department of revenue shall establish one or both of the following funds:
(a) a fund to provide for universal system benefits programs other than low-income energy assistance. The department of environmental quality shall administer this fund.
(b) a fund to provide universal low-income energy assistance. The department of public health and human services shall administer this fund.
(2) The purpose of these funds is to fund universal system benefits programs.
(3) The department of environmental quality and the department of public health and human services may adopt rules that administer and expend the money in each respective fund based on an annual statewide funding assessment that identifies funding needs in universal system benefits programs. The annual assessment must take into account existing utility and large customer universal system benefits programs expenditures.
Section 6. Department rulemaking authority. (1) The department of revenue shall adopt rules on or before September 1, 1999, specifying acceptable universal system benefits programs credits and expenditures and adopting procedures for challenged credits.
(2) Rules adopted pursuant to this part must be adopted in accordance with the Montana Negotiated Rulemaking Act, Title 2, chapter 5, part 1.
(3) Universal system benefits programs credits claimed or expenditures made prior to the adoption of the rules under subsection (1) must be allowed and are not subject to the requirements of [section 7].
Section 7. Universal system benefits programs credit review process. (1) All annual reports required pursuant to 69-8-402(8) and (10) must be filed with the department of revenue on March 1 of each year.
(2) Except as provided in [section 6], upon a challenge by an interested person, the department of revenue shall ensure that the credit claimed is consistent with this chapter. An interested person may file comments challenging the claim, including supporting documentation, with the department of revenue. A challenge of any claimed credit must be filed within 60 days of the department of revenue's receipt of the credit claimant's annual reports required pursuant to 69-8-402(8) and (10).
(3) Claimed credits are presumed to be correct unless challenged by an interested person. If a challenge is filed by an interested person, the department of revenue shall conduct an initial review of a challenged credit and shall make a determination as to the likelihood that the challenged credit qualifies for universal system benefits programs. If the department of revenue finds that the challenged credit is not likely to qualify for universal system benefits programs, the department of revenue shall formally review the challenge; otherwise, the department of revenue shall dismiss the challenge and provide a statement of the reasons supporting dismissal of the challenge. The department of revenue may request additional information from the credit claimant or interested person. The department of revenue shall complete the initial review within 30 days of the challenge.
(4) If the department of revenue determines that a formal review of a challenged credit is necessary, the department of revenue shall provide public notice of the opportunity to comment to the credit claimant and interested persons. The department of revenue may also schedule an oral hearing. If a hearing is scheduled, the department of revenue shall provide public notice of the hearing to the credit claimant and interested persons.
(5) For a formal credit review challenge, the following procedures apply:
(a) The credit claimant shall provide documentation supporting the credit claimed to the department of revenue and to all interested persons, subject to department of revenue protective orders for confidential or sensitive materials, upon a showing of a privacy interest by the credit claimant.
(b) The department of revenue shall make all materials related to the claim, the challenge, and the submitted comments available to the credit claimant and for public inspection and photocopying, subject to any department of revenue protective orders.
(c) The credit claimant may respond in writing to any comments and other documents filed by an interested person.
(d) The department of revenue may ask for additional detailed information to implement this section.
(6) Upon completing a formal review of a challenged credit, the department of revenue shall make a decision to certify or to deny the credit claimed, providing a statement of the reasons supporting the department of revenue's decision. The formal review of a challenged credit, including the department of revenue's final decision, must be completed within 60 days of the department of revenue's public notice of the opportunity to comment on the challenged credit.
Section 8. Codification instruction. [Sections 5 through 7] are intended to be codified as an integral part of Title 69, chapter 8, part 4, and the provisions of Title 69, chapter 8, part 4, apply to [sections 5 through 7].
Section 9. Effective date. [This act] is effective on passage and approval.
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