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REPORT OF THE LEGISLATIVE TRANSITION TASK FORCE ESTABLISHED UNDER THE VIRGINIA ELECTRIC UTILITY RESTRUCTURING ACT TO THE GOVERNOR AND THE GENERAL ASSEMBLY OF VIRGINIA SENATE DOCUMENT NO. COMMONWEALTH OF VIRGINIA RICHMOND 2001 MEMBERS OF THE LEGISLATIVE TRANSITION TASK FORCE Senator Thomas K. Norment, Jr., Chairman Delegate Clifton A. Woodrum, Vice Chairman Delegate Jerrauld C. Jones Delegate Terry G. Kilgore Delegate Harry J. Parrish Delegate Kenneth R. Plum Senator Richard L. Saslaw Senator Kenneth W. Stolle Delegate Robert Tata Senator John Watkins STAFF Division of Legislative Services Franklin D. Munyan, Senior Attorney C. Maureen Stinger, Staff Attorney Brenda C. Dickerson, Operations Staff Assistant Senate of Virginia - Clerk's Office Thomas C. Gilman, Coordinator of Committee Operations ii EXECUTIVE SUMMARY The Virginia Electric Utility Restructuring Act, Chapter 23 (§ 56-576 et seq.) of Title 56 of the Code of Virginia, was enacted by the 1999 Session of the General Assembly. When the Act is fully implemented, consumers in the Commonwealth will be able to purchase electric generation services from the supplier of their choice. The Restructuring Act was the product of a three-year study by the legislative Joint Subcommittee Studying Electric Utility Restructuring. At the joint subcommittee's recommendation, the Restructuring Act established the Legislative Transition Task Force to work collaboratively with the State Corporation Commission in conjunction with the phase-in of retail competition in electric services. The Task Force commenced its work in June 1999. Its report to the 2000 Session of the General Assembly (Senate Document 54 of 2000) acknowledges that the General Assembly's responsibilities with respect to implementing retail choice did not end with the passing of the Restructuring Act in 1999. The restructuring of Virginia's electric utilities is understood to be an ongoing endeavor that will require consistent monitoring. Following the extensive examination of implementation issues during its first year, the Task Force expected its second year of existence to be comparatively uneventful. However, two developments required the Task Force's work this year to match, and in some regards to surpass, the intensity of its 1999 efforts. First, the State Corporation Commission's Order of October 19, 2000, regarding the functional separation of the generation, distribution, and transmission services of incumbent electric utilities focused the attention of all interested parties on the issue of rates for default service after capped rates expire in July 2007. The second development has been the heightened scrutiny of electric utility restructuring efforts in light of the price spikes, power shortages, and other problems facing California. While some of the Golden State's misfortunes are attributable to factors unrelated to its restructuring legislation (including the absence of construction of new electricity generation facilities and inclement weather), a large part of California's misfortune is attributable to aspects of that state's restructuring law. For example, prohibitions on long-term power contracts and requirements that power be purchased on the daily spot market conducted by the state's independent system operator are blamed for surging prices of wholesale power. Meanwhile, retail price caps prevent distribution companies from passing along the increase in wholesale electricity costs, which in turn has left two investor-owned utilities teetering at the brink of insolvency. The Task Force has acknowledged that the 1999 Restructuring Act should not be viewed as engraving in stone every aspect of the deregulation of retail electricity generation services. Instead, it views the Act as a dynamic template that can be fine-tuned to address evolving circumstances and issues raised during the course of the transition to competition. In each of its two years of existence, the Task Force has proposed numerous amendments to the Act, both substantive and technical. Virginia's measured march toward the deregulation of electric iii generation has allowed power providers, regulators and other interested parties to alert the Task Force regarding issues in advance of the advent of restructuring, which in turn is expected to allow the Commonwealth to avoid the problems that would have resulted from a hurried rush into deregulation, such as are being observed from California's experience. The Task Force received testimony advocating more than a dozen legislative amendments affecting Virginia's electric utilities. Of these, eight received the Task Force's endorsement: Senate Bill 1420: Omnibus Legislation Addressing Default Service Rates, Functional Separation Issues, Competition for Metering and Billing Services, and Related Matters The Task Force endorsed legislation that establishes a mechanism for establishing the rates for default service after the capped rate period. The SCC is required to attempt to identify default service providers through competitive bidding. If that process does not produce willing and suitable default service providers, it may require a distributor to provide default service. The SCC is prohibited from regulating, on a cost plus or other basis, the price at which generation assets or their equivalent are made available for default service; however, a distributor may bid to provide default service on such basis. A distributor's default service plan must provide that the procurement of generation capacity and energy will be based on the prices in competitive regional electricity markets. If a plan is not approved, the SCC will establish rates for default services based on prices in competitive regional electricity markets. A "competitive regional electricity market" is defined as a market where competition, not statutory or regulatory price constraints, effectively regulates the price of electricity. In considering functional separation plans, the SCC will consider the potential effects of transfers of generation assets on the rates and reliability of capped rate service and on default service and the development of a competitive market for retail generation services in Virginia. The omnibus bill contains provisions restricting the ability of an incumbent utility to make further transfers of generation assets without SCC approval. In order to facilitate the development of a competitive electricity market in Virginia, and thereby avoid the need for default service, the omnibus bill includes provisions requiring the SCC to consider the goals of advancement of competition and economic development in all relevant proceedings. It also requires the SCC to report annually on the status of competition in the Commonwealth and the status of the development of regional competitive markets, and to make its recommendations to facilitate effective competition in the Commonwealth as soon as practical. The omnibus bill also establishes timetables for the introduction of competitive retail billing and metering services. Providers of electricity distribution services will be allowed to recover their costs directly associated with the implementation of billing or metering competition through a tariff for all licensed suppliers, in a manner approved by the SCC. The rates for any non-competitive services provided by a distributor will be adjusted to ensure that they do not reflect costs properly allocable to competitive metering or billing service. The bill includes amendments to consumption tax provisions to address the fact that billing services may be iv provided by competitive providers who are not the same as the company delivering electricity to a consumer. At the SCC's suggestion, the omnibus bill includes provisions that authorize the SCC to establish competition phase-in plans on a utility-by-utility basis, establish that the provisions of the Act will be applied to any municipal electric utility that is made subject to the Act to the same extent that such provisions apply to incumbent utilities, provide that rates for new services applied for after January 1, 2001, will be treated as capped rates, and clarify that default service will be made available after consumer choice is available to all customers in Virginia. Other provisions of the omnibus bill require the SCC to establish minimum periods, if any, that customers must receive service from their incumbent electric utilities or from default service providers after having obtained service from other suppliers. Senate Joint Resolution 467: Study of Generation Siting Procedures The Task Force endorsed a proposal directing the Task Force to study procedures applicable to the construction of new electricity generation facilities in the Commonwealth. The Task Force is directed to recommend amendments to the Commonwealth's administrative and regulatory procedures as may be appropriate to facilitate the approval of construction of sufficient electricity generation capacity to provide a competitive market for electricity in the Commonwealth as soon as practical, without lessening necessary environmental considerations including siting and air quality impacts. House Bill 2469: Income Tax Deduction for Contributions to Energy Assistance Programs The Task Force endorsed a recommendation of the Consumer Advisory Board calling for the establishment of an individual income tax deduction for contributions to a utility company emergency energy program. The deductions would apply where the utility company is an agent for a charitable organization that assists individuals with emergency energy needs. To be eligible, the contributions must be to an organization that qualifies for charitable contributions under the Internal Revenue Code. The deduction would be available only for taxpayers who do not take a deduction for such contributions on their federal tax return. House Bill 2473: Low Income Energy Assistance Program The Consumer Advisory Board recommended the establishment of a Home Energy Assistance Program. The Task Force endorsed the proposal. The proposal designates the Department of Social Services as the state agency responsible for coordinating state efforts regarding a policy to support the efforts of public agencies, private utility service providers, and charitable and community groups seeking to assist low-income Virginians in meeting their seasonal residential energy needs. The measure also created the Home Energy Assistance Fund to be used to supplement DSS's administration of the Low Income Home Energy Assistance Program (LIHEAP) block grant and to assist in maximizing the amount of federal funds available under LIHEAP and the Weatherization Assistance Program by providing funds to comply with fund matching requirements. It would be funded through contributions under the Neighborhood Assistance Act, donations from individuals, and general fund appropriations. The v Department would be required to coordinate the activities of appropriate state agencies, as well as any non-state programs that elect to participate; provide a clearinghouse for information exchange regarding residential energy needs of low-income Virginians; collect and analyze data regarding the amounts of energy assistance provided, and the extent to which there is unmet need for energy assistance in the Commonwealth; track recipients of low-income energy assistance; develop and maintain a statewide list of available private and governmental resources for low- income persons in need of energy assistance; and report annually on the effectiveness of low- income energy assistance programs in meeting the needs of low-income Virginians, including the effect of utility restructuring on low-income energy assistance needs and programs. The legislation as introduced included two related recommendations of the Consumer Advisory Board for funding of the Low Income Energy Assistance Program. First, the Board recommended that the Program be funded in part through contributions from business firms, who would be eligible for $1 million in tax credits under the Neighborhood Assistance Act. Second, the Program would be funded in part through voluntary contributions from individuals under an income tax refund check-off. House Bill 2472: Definition of Renewable Energy The Task Force endorsed a Consumer Advisory Board recommendation that a definition of renewable energy be added to the Restructuring Act. The proposal defined renewable energy as energy that is derived from the sun or other natural processes and is replenishable by natural processes over relatively short time periods. The proposal also identified specific forms of energy as being included within the term "renewable energy." The Task Force amended the proposal to specify that the term includes energy from waste. House Bill 2470: Marketing of "Green Power" At the Consumer Advisory Board's request, the Task Force endorsed a proposal to authorize the SCC to establish criteria pursuant to which providers of electricity may designate certain electricity as "green power." Suppliers of electricity who do not obtain the SCC's designation would be prohibited from labeling their power as "green." Senate Bill 896 and House Bill 1935: Expansion of Municipal Utility Service Area The Task Force unanimously agreed to support a proposal offered by Senator W. Roscoe Reynolds addressing an issue in the City of Martinsville. The amendment to subsection F of § 56-580 clarifies that a municipal electric utility may expand its service territory without becoming subject to the Restructuring Act if the new service area is within the municipality's borders. Senate Bill 1257: Eminent Domain Authority Of Public Service Corporations The Task Force agreed to support a proposed amendment to § 56-579 D in order to clarify that on and after January 1, 2002, public service corporations may no longer file petitions to exercise the right of eminent domain in conjunction with the construction or enlargement of any electric energy generation facility. vi TABLE OF CONTENTS I. INTRODUCTION ...................................................................................................................... 1 II. ISSUES EXAMINED BY THE TASK FORCE ........................................................................ 3 A. Functional Separation Order ................................................................................................. 3 B. Consumer Advisory Board Activities ................................................................................... 5 C. Status of Restructuring Nationally ........................................................................................ 7 1. Federal Legislation........................................................................................................... 7 2. Developments in Other States ........................................................................................ 10 3. Virginia Electricity Reliability Summit ......................................................................... 14 D. Competition for Metering and Billing Services .................................................................. 15 E. Other Restructuring Activities ............................................................................................. 16 1. Pilot Program Proceedings ............................................................................................. 16 2. Net Metering .................................................................................................................. 18 3. Electric Cooperative Affiliates Furnishing Non-Utility Services .................................. 18 4. Functional Separation Plans ........................................................................................... 18 5. Regional Transmission Entities ..................................................................................... 19 6. Consumer Education Program Activities....................................................................... 21 7. Electric Utility Merger Activity ..................................................................................... 21 8. Future SCC Proceedings ................................................................................................ 22 III. DELIBERATIONS AND RECOMMENDATIONS................................................................ 23 A. Omnibus Bill - Senate Bill 1420 ......................................................................................... 23 1. Development of Omnibus Bill ....................................................................................... 24 2. Default Service Rates ..................................................................................................... 26 3. Functional Separation .................................................................................................... 27 4. Gaming the System ........................................................................................................ 28 5. Competition for Metering and Billing ........................................................................... 29 6. SCC Recommendations ................................................................................................. 30 7. Other Provisions............................................................................................................. 31 B. Study of Generation Siting Procedures - Senate Joint Resolution 467 ............................... 32 C. Consumer Advisory Board Legislative Package ................................................................. 33 1. Income Tax Deduction for Contributions to Energy Assistance Programs ................... 33 2. Establishment of Low Income Energy Assistance Program .......................................... 33 3. Neighborhood Assistance Act Tax Credits for Business Contributions to Program ..... 35 4. Income Tax Refund Check-Off for Voluntary Contributions to Home Energy Assistance Fund .............................................................................................................. 35 vii 5. Definition of Renewable Energy ................................................................................... 35 6. Marketing of "Green Power" ......................................................................................... 36 7. Tax Credit for Investments in Solar Equipment ............................................................ 36 D. Clean and Efficient Energy Tax Incentives ........................................................................ 37 E. Self-Regulation by Distribution Cooperatives .................................................................... 38 F. Capped Rates for Local Governments ................................................................................. 38 G. Expansion of Municipal Utility Service Area Within its City ............................................ 39 H. Interconnection of Certificated Service Territories ............................................................ 39 I. Adjustments to Projected Market Price for Generation........................................................ 40 J. Eminent Domain Authority of Public Service Corporations................................................ 40 K. Other Proposals Offered by SCC ........................................................................................ 40 IV. CONCLUSION ......................................................................................................................... 42 viii APPENDICES A. Report of the Consumer Advisory Board ............................................................................. A-1 B. Letter of Senator Thomas K. Norment Regarding S. 2098 ................................................. A-14 C. Comparison of Federal Electric Utility Restructuring Bills ................................................ A-15 D. Remarks of Rep. Bliley at the Virginia Electricity Reliability Summit .............................. A-19 E. Virginia Power Pilot Program "Price to Compare" Fact Sheet ........................................... A-27 F. Competitive Service Providers/Aggregators -- Applications for Licensure (Updated July 26, 2000) .................................................................................................. A-28 G. Remarks of William G. Thomas Regarding Dominion Virginia Power's Functional Separation Plan, December 13, 2000 .................................................................................. A-30 H. Service Territories of Current and Expected Members of the Alliance RTO ..................... A-34 I. Virginia Energy Choice Education Advisory Committee ................................................... A-35 J. Memorandum of SCC Staff Regarding Proposed Draft Legislation, January 11, 2001 ..... A-36 K. Memorandum dated January 18, 2001, from Stakeholder Group to Task Force ................ A-43 L. Memorandum of SCC Staff Regarding Proposed Draft Legislation, January 18, 2001 ..... A-47 M. Senate Bill 1420 (2001) ...................................................................................................... A-51 N. "Gaming System" Proposed Legislation ............................................................................. A-64 O. Proposal of SCC Regarding Competition for Metering and Billing Services .................... A-66 P. Senate Joint Resolution 467 (2001) .................................................................................... A-73 Q. Proposal of Consumer Advisory Board for Income Tax Deductions for Contributions to Energy Assistance Programs ....................................................................................... A-74 R. Senate Joint Resolution 154 (2000) .................................................................................... A-75 S. Proposal of Consumer Advisory Board for Low Income Energy Assistance Program ...... A-77 T. Proposal of Consumer Advisory Board for Neighborhood Assistance Act Tax Credits for Business Contributions to Program .............................................................. A-80 U. Proposal of Consumer Advisory Board for Income Tax Refund Check-Off for Voluntary Contributions for Home Energy Assistance Fund ......................................... A-82 V. Proposal of Consumer Advisory Board for a Definition of Renewable Energy ................. A-83 W. Proposal of Consumer Advisory Board Regarding Marketing of "Green Power" ............. A-84 X. Proposal of Consumer Advisory Board for Tax Credits for Investments in Solar Equipment .............................................................................................................. A-85 Y. Proposal for Clean and Efficient Energy Tax Incentives (Senator Whipple) ..................... A-86 Z. State Tax Credit for Investments in Solar Equipment (MD-DC-VA Solar Energy Industries Association) ....................................................................................... A-91 AA. Recommendation of Electric Cooperatives for Distribution Cooperatives Self-Regulation ............................................................................................................... A-93 BB. State Regulation of Electric Cooperatives Survey Compilations ..................................... A-108 CC. Proposal for Capped Rates for Local Government Customers ......................................... A-111 DD. City of Martinsville -- Proposed Amendment to the Virginia Electric Utility Restructuring Act .......................................................................................................... A-114 EE. Recommendations of Electric Cooperatives - Interconnection Issue ............................... A-115 FF. Proposal Submitted by the Virginia Renewable Energy Industry Association................. A-119 GG. Recommendation of Tenaska Virginia Partners Regarding Eminent Domain Authority of Public Service Corporations. .................................................................... A-120 HH. Line Extension Credit Comparisons ................................................................................. A-121 II. Proposal by SCC with Options Addressing Line Extension Credits ................................ A-122 JJ. Proposal by SCC Regarding Cooperative Rate Discounts During the Capped Rate Period .................................................................................................................... A-123 ix REPORT OF THE LEGISLATIVE TRANSITION TASK FORCE ESTABLISHED PURSUANT TO THE VIRGINA ELECTRIC UTILITY RESTRUCTURING ACT To: The Honorable James S. Gilmore, III, Governor of Virginia and The General Assembly of Virginia Richmond, Virginia April, 2001 I. INTRODUCTION The Virginia Electric Utility Restructuring Act establishes the framework through which sales of retail electric generation services will be deregulated. Instead of buying power from regulated regional monopolies, Virginia's consumers will be able to purchase electric generation and related services from the licensed supplier of their choice. The Restructuring Act was the product of three years of effort by the Joint Subcommittee Studying Restructuring of the Electric Utility Industry, established by Senate Joint Resolution 118 (1996) and chaired by former Senator Jackson Reasor. The joint subcommittee was charged with determining whether restructuring the retail electricity market in Virginia is feasible and in the public interest. The 1996 study was continued under Senate Joint Resolution 259 of 1997 and Senate Joint Resolution 91 of 1998. House Bill 1172, enacted in 1998, established a framework and schedule for the restructuring of the Commonwealth's electric utilities, and directed that future sessions of the General Assembly would address the details required to implement the deregulation of the industry. The task of providing the details needed to effect electric utility restructuring was accomplished in the joint subcommittee's third year with its crafting of comprehensive restructuring legislation. The joint subcommittee's proposal was introduced as Senate Bill 1269. The Restructuring Act was enacted as Chapter 411 of the 1999 Acts of Assembly, and is codified as Chapter 23 (§ 56-576 et seq.) of Title 56 of the Code of Virginia. The Restructuring Act creates the Legislative Transition Task Force for the purpose of working collaboratively with the State Corporation Commission in conjunction with the phase-in of retail competition in electric services within the Commonwealth. The members of the Task Force are directed by § 56-595 of the Restructuring Act to monitor the work of the Commission in implementing the Act, as well as to (i) determine whether, and on what basis, incumbent electric utilities should be permitted to discount capped generation rates; (ii) monitor the recovery of stranded costs by incumbent electric utilities; (iii) examine utility worker protection during the transition to retail competition; (iv) examine generation, transmission and distribution systems reliability concerns; (v) examine energy assistance programs for low-income 1 households; (vi) examine renewable energy programs; and (vii) examine energy efficiency programs. The Task Force is further directed to make annual reports concerning the progress of each stage of the phase-in of retail competition, offering such recommendations as may be appropriate in order to maintain the Commonwealth's position as a low-cost electricity market and ensure that residential customers and small business customers benefit from competition. The members of the Task Force have been appointed to serve until July 1, 2005. The term of the Task Force's existence overlaps the period of phasing in customer choice, which is scheduled from January 1, 2002, through January 1, 2004, with the possibility that competition for generation may be delayed based on considerations of reliability, safety, communications or market power. The Act provides that in no event shall any delay in the implementation of customer choice for all customers extend beyond January 1, 2005. The Task Force consists of 10 members, of whom six are members of the House of Delegates and four are members of the Senate. The members of the Task Force who had previously served on the joint subcommittee that authored the Restructuring Act are Senator Norment of James City County, chairman; Delegate Woodrum of Roanoke, vice chairman; Senator Stolle of Virginia Beach; Senator Watkins of Chesterfield County; Delegate J. C. Jones of Norfolk; Delegate Kilgore of Scott County; Delegate Parrish of Manassas; and Delegate Plum of Fairfax County. During 2000, two new members joined the Task Force. Senator Saslaw of Fairfax County was appointed to fill the vacancy created by the passing of Senator Holland of Isle of Wight County. Following Eric Cantor's election to the House of Representatives and subsequent resignation from the House of Delegates, Delegate Tata of Virginia Beach was appointed to the Task Force. The first report of the Task Force, detailing its activities and the recommendations developed during the 1999 interim, was submitted as Senate Document 54 of 2000. While printed copies are available through the General Assembly's bill room (telephone 804-786-6984), the report may be viewed at the Task Force's Internet web site (http://dls.state.va.us/elecutil.htm). The web site also provides access to many of the materials submitted at the Task Force's meetings, as well as links to the text of the Restructuring Act and the annual reports of the Joint Subcommittee Studying Restructuring of the Electric Utility Industry that created the Restructuring Act. The annual report of the joint subcommittee pursuant to Senate Joint Resolution 118 (1996) is Senate Document 28 (1997); the report pursuant to Senate Joint Resolution 259 (1997) is Senate Document 40 (1998); and the report pursuant to Senate Joint Resolution 91 (1998) is Senate Document 34 (1999). This second report of the Task Force summarizes its work between its meeting on June 13, 2000, and its fifth meeting on January 19, 2001. The report consists of two major parts. The first is an overview of the issues that the Task Force examined during the 2000 interim. The second summarizes the deliberations of the Task Force with respect to proposals for legislation amending the Restructuring Act or affecting related provisions of the Virginia Code. 2 II. ISSUES EXAMINED BY THE TASK FORCE A. FUNCTIONAL SEPARATION ORDER Section 56-590 of the Restructuring Act requires each incumbent electric utility to submit a functional separation plan by January 1, 2001. Plans must be implemented by January 1, 2002. Subdivision B 3 of § 56-590 authorizes the SCC to "impose conditions, as the public interest requires, upon its approval of any incumbent electric utility's plan for functional separation, including requirements that (i) the incumbent electric utility's generation assets or their equivalent remain available for electric service during the capped rate period . . . and, if applicable, during any period the incumbent electric utility serves as a default provider." In general, the Restructuring Act requires functional separation in order to encourage competitors to enter the new market by preventing incumbent utilities, who may continue to provide regulated distribution and transmission services, from favoring their own generation operations. On October 19, 2000, the State Corporation Commission entered its final order in the matter of the functional separation of the generation, distribution, and transmission services of incumbent electric utilities. The Commissioners split two-to-one on the issue of how incumbent utilities' functional separation plans must address the provision of "generation assets or their equivalent" during any period that they are default service providers. Commissioners Moore and Morrison concluded that the Act obligates the SCC to regulate rates for default service "until the market can provide what default service must provide under this statute: reliable and economic service." Commissioner Miller disagreed, concluding that the Act requires the costs of generation, after rate cap protections have expired, to be set by the market rather than by regulators. In his view, the majority's order is inconsistent with the primary goal of the Act: the development of a competitive market. The majority noted that this issue is one of the most controversial issues faced in the course of its rulemaking associated with the Restructuring Act. "Sweeping, complex legislation borne of such circumstances is seldom, when first enacted, the model of precision; the Restructuring Act is no exception." The majority would require that, if an incumbent utility does not divest generation assets, the rates for default service may be determined based on traditional ratemaking rules. If the utility's plan provides for the divestment of generation assets, the rates, reliability and capacity from equivalent generation must be comparable to that provided by current generation assets. The majority interpreted the phrase "the incumbent electric utility's generation assets or their equivalent" to mean that the Commission may require that incumbents' generation assets remain available, or that equivalent assets remain available, to support regulated capped rate service and regulated default service. In addressing the "equivalent generation" issue, the Commission tried to interconnect and harmonize statutory provisions, none of which state specifically that "generation or its equivalent" does or does not encompass price as well as capacity. "The absence of express language has given rise to this controversy," they observed. The majority rejected the assertion that in the context of default service, "equivalency" pertains only to an amount of capacity and not to the price of that capacity. The requirement in subsection B 3 of 56-585 that rates be "fairly compensatory" was characterized by the majority as a reaffirmation of the basics of 3 regulated rates found in Chapter 10 of Title 56. "Fairly compensatory" is deemed to refer to the requirement of § 56-235.2 that public utilities recover their actual cost of service and a fair rate of return on their rate base used to service jurisdictional customers. Under § 56-249.6, utilities may recover prudently-incurred purchased power costs. The Commission cannot fulfill its statutory obligation under § 56-585 to determine rates and promote "reliable and economic" default service, according to these two Commissioners, unless it also requires incumbent electric utilities filing functional separation plans to have in place generation assets, or their equivalent, sufficient to fulfill the incumbents' price and capacity obligations established under § 56-585. Commissioner Miller dissented from adoption of the portions of the functional separation regulations designated as 20 VAC 5-202-40 B 6 g, h, and i, noting that "there is no ambiguity in the Restructuring Act with respect to the pricing of electric energy beyond July 1, 2007. One of the central tenets of the Act is that the open marketplace is to be, in the future, the 'regulator' of prices paid by consumers for electric energy." He disagreed that §§ 56-585 and 56-590 give the Commission the authority to control the costs of incumbent utilities' generation assets used to support default service. If the language of § 56-590 justifies the imposition of cost controls on generation assets, it "was truly a strange way to phrase that principle." He acknowledged that the Commission has limited authority to regulate the retail rates charged for default service under §§ 56-585 B 3 and C. As under traditional retail rate regulation, the Commission may disallow costs of power under a contract that had been imprudently procured. But in the absence of a finding of imprudence, the SCC has no power to control the costs of the basic goods and services that were purchased for the public service. The Act does not, in his view, give the Commission the power to regulate the costs of resources that make up part of the expense of serving default customers. The dissenting Commissioner reached his conclusion on grounds that the Act's emphasis on deregulation is controlling: "Given the clear dependence placed on the competitive market by the Act, a cost component cannot reasonably be grafted onto the 'assets remain available' concept in the absence of some clear indication that the General Assembly intended this reading, of which I find none." Continuing cost of service regulation of generation assets, the dissenting Commissioner asserted, would be contrary to public policy for three reasons: potential competitors will not enter Virginia because their rates are effectively "capped" by lower-than- market default rates; the dearth of competitive suppliers will self-perpetuate the need for the default option, long past the end of the capped rate period; and a competitive market would not develop in Virginia, thereby frustrating the overall goal of the Act -- competition. While the Commissioners disagreed on the question of whether price and capacity are contained within the meaning of "generation or its equivalent," all agreed to give the General Assembly the opportunity in the 2001 legislative session to undertake a direct and thorough review of this controversial issue and to address whether, and to what extent, default service customers should have generation price protection following the termination or expiration of capped rates under the Act. As noted in Part III of this report, the Task Force examined this issue in detail and recommended amendments to the Restructuring Act that rejected both the majority's and minority's opinions. 4 Though almost all of the attention paid to the functional separation order focused on rate regulation of default service, it addressed other relevant issues. One issue relevant to the Task Force involves the collection by the SCC of information for its use in monitoring utilities' recovery of stranded costs. As originally proposed, 20 VAC 5-202-40 B 6 would have required that incumbent electric utilities provide the fair market value of generation assets, even if they intend to transfer these assets at book value. Incumbent utilities opposed the requirement on grounds that, to the extent that transfers to functionally separate units will be made at book value, a market valuation is unnecessary. Some incumbents and independent power producers opposed a related requirement in proposed 20 VAC 5-202-40 B 6 that would have required incumbent electric utilities to provide a year-by-year fair market valuation of long-term power contracts. The Task Force is required by § 56-595 to monitor whether the recovery of stranded costs under § 56-584 has resulted in or is likely to result in the over-recovery or under-recovery of just and reasonable net stranded costs. The Commission concluded that information regarding (i) the fair market value of generation assets at the time of their sale or transfer and (ii) the fair market value of long-term power contracts on a year-to-year basis, is critical to the Task Force's duty to assess stranded cost recovery. The Commission concluded that while it is required to assist the Task Force in monitoring stranded cost recovery, it "will defer to the Task Force to determine as soon as possible, by resolution or some other specific directive to the Commission, whether it will want this information for its use in monitoring utilities' recovery of stranded costs." Final rule 20 VAC 5-202-40 B 6 c provides that information regarding the fair market valuation of generation assets and purchase power contracts will be required by the Commission "if and when the Task Force directs the Commission to obtain that information for its use pursuant to the Task Force's obligations under § 56-595 of the Act." Though a quorum of Task Force members were not present when the issue was raised, the members in attendance at its January 5, 2001, meeting concurred that the Task Force will want information regarding the fair market valuation of generation assets and power contracts for use in monitoring utilities' recovery of stranded costs. B. CONSUMER ADVISORY BOARD ACTIVITIES The Act directs the establishment of a Consumer Advisory Board. The Board is directed to assist the Legislative Transition Task Force in its work under § 56-595, and in other issues as may be directed by the Task Force. The 17-member Board is required to be appointed from all classes of consumers and with geographical representation. In its first year, William Lukhard was elected chairman and Otis Brown was elected vice chairman. The Board was requested by the Task Force at its August 16, 1999, meeting to examine and make recommendations regarding programs for low-income energy assistance, energy efficiency, and renewable energy. Delegate Plum serves as liaison between the Task Force and the Consumer Advisory Board. At the Task Force's December 13 meeting, the Consumer Advisory Board presented its report to the Task Force. The Board's report is attached as Appendix A. 5 In its 12 meetings over the past two years, the Consumer Advisory Board has developed recommendations in areas of assisting low-income consumers in meeting their energy needs, energy efficiency, and renewable energy. The Board understands that the major thrust of deregulation is to establish a competitive market in which residential and small business consumers will benefit. The Board also recognizes that the General Assembly would be reluctant to enact legislation generating revenue through mechanisms that would increase the cost of electricity, and that current information indicates a potential lack of general fund revenues to fund new programs. Pursuant to Senate Joint Resolution 154 (2000), the Board has examined low-income energy assistance for all sources of energy. The Board recommended that the Task Force endorse the following actions addressing energy assistance needs for low-income Virginians: Codifying a state policy supporting the efforts of public agencies, private utility service providers, and charitable and community groups seeking to assist low-income Virginians in meeting their seasonal residential energy needs and designating the Department of Social Services (DSS) as the state agency responsible for coordinating these efforts. Establishing an office within DSS to be responsible for statewide coordination of all state and federally funded energy assistance programs, as well as any non-state programs that wish to participate. Establishing a dedicated special fund as a repository for funds from various sources to enhance existing sources of funds for low-income energy assistance efforts. Creating an income tax refund check-off for donations to the energy assistance program. Providing a special incentive for donations by business firms to the fund through an expansion of the Neighborhood Assistance Act, with the $1,000,000 in tax credits earmarked for contributions to the special fund. Making contributions to energy assistance programs tax deductible for non-itemizers. Much of the debate over programs to encourage the development of renewable energy sources and improvements in energy efficiency involved their costs. Board members generally endorsed the goals such programs seek to advance. However, members questioned whether utility customers should bear the costs through their bills, or whether all taxpayers should bear these costs through the general fund. The goal of preserving Virginia's status as a state with inexpensive electricity was consistently recognized. The Board adopted the following recommendations dealing with energy efficiency and renewables: Adopting a definition of renewable energy sources that includes those that are derived from the sun or other natural processes and are replenishable by those sources over relatively short time periods. 6 Requiring the SCC to establish guidelines for competitive service providers marketing their energy as "green." Non-qualifying electricity providers will be barred from using the "Green Power" label. Adopting a tax credit for the purchase and installation of equipment that generates electricity from solar energy or uses solar energy to heat or cool a structure or provide hot water. Designating the Department of Mines, Minerals and Energy to develop consumer education programs about energy efficiency, including usage-reduction techniques, energy-efficient equipment available, and weatherization services. The Board also asked the Task Force to study, or to direct the Board to study, how the development of aggregation in Virginia and other states is, or is not, facilitating market power for the consumer and small business classes of electricity users. C. STATUS OF RESTRUCTURING NATIONALLY 1. Federal Legislation At the Task Force's June 13, 2000, meeting Senator Watkins observed that legislation under consideration by Congress can potentially undo much of Virginia's Restructuring Act. At that meeting, concerns were expressed that the pending S. 2098, known as the Electric Power Market Competition and Reliability Act, could be amended to preempt the current authority of states with respect to a number of restructuring issues. The Task Force agreed that its chair should request Senator Murkowski of Alaska, Chairman of the Senate Committee on Energy and Natural Resources, to ensure that S. 2098 does not abrogate any of the provisions of Virginia's Restructuring Act or otherwise preempt the existing powers of the Commonwealth with respect to the provision of electric utility service. A copy of Senator Norment's letter to Senator Murkowski is attached as Appendix B. Senator Murkowski's S. 2098 was but one of many items of legislation introduced in Congress in recent years addressing the deregulation of the electric utility industry. Comprehensive electric restructuring legislation was introduced in the 106th Congress by, among others, Representative Barton of Texas (H.R. 2944), the Clinton administration (S. 1047 and H.R. 1828), and Senators Gramm and Schumer (S. 2886) as well as by Senator Murkowski. A chart summarizing these bills is attached as Appendix C. In the Senate, Senator Murkowski's S. 2098 failed when members of the Senate Energy and Natural Resources Committee were unable to break a deadlock on two issues: extending Federal Energy Regulatory Commission (FERC) jurisdiction to include transmission bundled with retail sale, and a federal mandate on the use of renewable energy sources in generation. Opponents of expanding FERC jurisdiction to the transmission component of "bundled" retail services involved related questions of whether federal law should require transmission to be unbundled, and whether states should have jurisdiction over retail bundled or unbundled 7 deliveries of electricity over transmission lines with FERC maintaining jurisdiction over wholesale sales. Faced with a stalemate over these issues in Senator Murkowski's comprehensive restructuring bill, the Senate Committee reported Senator Slade Gorton's Electric Reliability 2000 Act (S. 2071) on June 21, 2000. This bill passed the full Senate on June 30, 2000. However, the House of Representatives took no action on the bill. The bill was aimed at providing relief to bulk power markets, which were shaken by price spikes in western states. It would create an industry self-regulatory organization to develop and enforce mandatory reliability standards, with FERC oversight. The standards only concern the operational security of the bulk power system. It provides for the establishment of a single national electric reliability organization (ERO), subject to FERC approval and oversight, to make sure the ERO and its affiliated regional reliability entities operate effectively and fairly. The ERO would have authority to develop, implement, and enforce compliance with standards for the reliable operation of only the interstate bulk power system. The reliability standards established by the ERO would be mandatory on all owners, users and operators of the interstate bulk power system. FERC would have been authorized to immediately adopt interim mandatory reliability standards. North American Electric Reliability Council and its individual regional reliability councils may file with FERC those existing reliability standards they propose to be mandatory in the interim before the new ERO is approved by FERC and it establishes reliability standards. The federal government will not preempt state enforcement action, provided that the state rules are consistent with ERO standards. The ERO may delegate authority to implement and enforce standards to an affiliated regional reliability entity, similar to the current regional reliability councils. The legislation was modeled on the Securities and Exchange Commission's oversight of self-regulatory organizations in the securities industry (the stock exchanges and the NASD). The wholesale power system has operated for 35 years under various voluntary agreements with utilities. The bill's advocates allege that fundamental changes in the electric power industry are making this voluntary system inadequate. Firms that once cooperated are now competitors, and violations of voluntary reliability rules are alleged to have increased. In the House of Representatives, H.R. 2944 was reported by the Commerce Committee's Subcommittee on Energy and Power in November 1999. In June 2000, Committee Chairman Tom Bliley released a discussion draft that would give FERC a stronger regulatory role in transmission issues. It would also put the interstate transmission grid under uniform national rules, in order to address concerns that the respective jurisdiction of federal and state regulations over the interstate transmission system is unclear and that one-third of the transmission system operated by state and municipal utilities, coops, and federal utilities is unregulated. The discussion draft called for a requirement that all transmission utilities unbundle transmission from other components in the retail sale of electricity. When the House Commerce Committee convened its scheduled mark-up session on H.R. 2944 on July 13, 2000, Congressman Bliley announced that he was still working to reach a 8 consensus. By late July, it was reported that final attempts to pass comprehensive restructuring legislation had died. Though the question of FERC jurisdiction in transmission regulation was a major stumbling block to the development of a consensus, it was not the only critical difference among approaches to comprehensive restructuring legislation. Other major areas of disagreement included: Allowing states to require reciprocity as a condition of access to another state's electric markets. Inclusion of environmental provisions. Public benefits funds, funded by wires charges, for matches with state programs. Setting a date certain for national implementation of electric restructuring. The role FERC and regional bodies are to play in siting transmission expansions, and the extent to which they may exercise the power of eminent domain. Grandfathering state programs; for example, H.R. 2944 would grandfather state restructuring laws, provided they address consumer protection, interconnection, aggregation, and net metering issues. In addition to the federal proposals discussed above, numerous other restructuring bills were introduced in the 106th Congress. They include: H.R. 2734 (Rep. Brown) Community Choice for Electricity Act of 1999 H.R. 971 (Rep. Walsh) Electric Power Consumer Rate Relief Act of 1999 H.R. 1138 (Rep. Stearns) Ratepayer Protection Act H. R. 2645 (Rep. Kucinich) Electricity Consumer, Worker and Environmental Protection Act H.R. 2569 (Rep. Pallone) Fair Energy Competition Act of 1999 H.R. 1587 (Rep. Stearns) Electric Energy Empowerment Act of 1999 H.R. 2050 (Rep. Largent) Ratepayer Protection Act/Electric Consumers' Power to Choose Act H.R. 667 (Rep. Burr) The Power Bill S. 1284 (Sen. Nickles) Electric Consumer Choice Act 9 S. 282 (Sen. Mack) Transition to Competition in the Electric Industry Act S. 1047 (Sen. Murkowski) Public Utility Holding Company Act of 1999/Comprehensive Electricity Competition Act S. 516 (Sen. Craig) Electric Utility Restructuring Empowerment and Competitiveness Act of 1999 2. Developments in Other States The inability of Congress to enact comprehensive restructuring legislation may have been due in part to concerns with electricity markets in California and other states that enacted consumer choice legislation. Media coverage of the retail price surges in San Diego in the summer of 2000 brought the public's attention to the potential pitfalls of imprudent approaches to restructuring. Though they did not receive as much attention, Wyoming and New York also identified potential restructuring problems during that summer. The media have focused attention on two separate but related aspects of California's problems with deregulation. Last summer, the doubling or trebling of the retail prices of electricity in the service territory of San Diego Gas & Electric gained news coverage. The retail price surges were the result of the fact that SDG&E was the first incumbent utility that was found to have recovered its stranded costs. As a result, price caps on the utility as a provider of last resort service were lifted. California's deregulation law capped standard-offer power rates for five years or until the utility recovered its stranded costs. When the price caps were lifted in SDG&E's territory, the retail prices rose as surging wholesale prices were passed through to consumers. The other, more recently-arising, problem with California's deregulation results from the financial burden on distribution utilities forced to sell power to consumers at capped rates that are far below the wholesale market price paid by such utilities. The wholesale price at which electricity can be purchased by distribution utilities is often set daily by the regional power exchange. When the five-year rate cap period expires or when their stranded costs are recovered, the utilities can pass on to consumers the market price for wholesale power. The National Conference of State Legislatures reported that from May 2000 through January 2001, California's major utilities had incurred nearly $12 billion in losses. (State Legislature, March 2001, p. 15). Though California has built only about 600 MW of new power plants over the past decade, demand for new power has grown by more than 6,000 MW. The NCSL's Matthew Brown attributed the dearth of new construction to uncertainties in the market brought about by the debate over restructuring: "The 1994 announcement that major charges were afoot in the way that companies bought and sold electricity put a stop to much of the financial capital flowing in the electric industry to build power plants. Even some of the new generation that the state commission had said was needed to be built in the early 1990s was stopped dead in its tracks when the debate about restructuring got serious." Id. at p. 17. Howard Spinner of the SCC has provided information indicating that California is not the only restructuring state that experienced price increases in 2000. In New York, residential customers of Consolidated Edison who had not switched power providers experienced a 40 10 percent increase in their bills in July 2000 compared to July 1999, for the same amount of consumption. In Montana, price caps remain in effect for small customers until at least mid- 2002. However, larger customers who have switched to competing suppliers experienced marked price increases that created economic dislocations. The effect of these developments on states that had not enacted restructuring legislation has been to slow the push for deregulation. In November 2000, the North Carolina Public Utilities Commission staff recommended that the state pursue a limited deregulation plan under which large industrial customers could chose their electricity provider while the market for power sales to small business or residential consumers would remain regulated. The PUC staff's recommendation that the legislative panel move slowly with restructuring was prompted by concerns with California's experience. Oregon had adopted a similar approval where deregulation is being phased in for residential and small business customers. In January 2001, the Study Commission on the Future of Electric Services in North Carolina decided to defer making a recommendation on deregulation to the state's legislature. The panel had intended to recommend that competition begin in 2006. Instead, it asked for studies, to be completed in the summer of 2001, on how consumers would be protected in a competitive market. (Raleigh News-Observer, January 25, 2001) According to David K. Owens of the Edison Electric Institute, California's experience is slowing the pace of state restructuring activity: Alabama is no longer considering restructuring; Nevada has delayed restructuring; and Arkansas, New Mexico and Oklahoma are considering delays. The state cited as most successfully managing the transition to competition is Pennsylvania. Dominion Virginia Power spokesperson Eva Teig Hardy informed the Task Force at its January 19, 2001, meeting that annual savings for consumers resulting from deregulation would be $3 billion annually. The Task Force's meeting of December 13, 2000, featured two presentations from outside experts focusing on many of the issues affecting the restructuring of the electric utility industry nationwide. Craig McDonald of Navigant Consulting, Inc., of Bala Cynwyd, Pennsylvania, briefed the Task Force on the status of active retail electric competition, pricing issues in California, and the status of current wholesale and retail electricity prices. Five states -- California, Pennsylvania, Rhode Island, Massachusetts, and New York -- have provided a significant number of retail customers access to competitive supply for longer than one year. In California, 2.2 percent of customers with 14.1 percent of usage have switched suppliers. In Pennsylvania, 10 percent of customers (9.5 percent of residential customers), with 21.2 percent of load have switched suppliers. However, the load served by competitive suppliers in Pennsylvania decreased from 8,321 MW in April 2000 to 5,509 by July 2000. To most observers, California's restructuring approach appeared to be working well prior to last summer. However, retail markets were not successful in obtaining new customers, as evidenced by the fact that fewer than three percent of all customers changed suppliers. In 11 addition, no new plants were coming on line, though significant new plants were being proposed. From February through July 2000, wholesale market prices rose more than six-fold. The monthly average unconstrained power exchange price rose from approximately $25 in April 2000 to almost $170 in July 2000. Mr. McDonald noted that in response to California's trouble last summer, an aggressive push is underway to streamline the power plant siting process from a year to six months. In addition, the state adopted a 6.5 cent/kWh maximum supply cost for SDG&E customers rolled back to June 1, 2000, which has prompted the utility to file to recover the cost of $390 million in refunds to customers. As of early December, Southern California Edison and Pacific Gas & Electric faced $6 billion of unrecovered power costs not passed on to customers. Southern California Edison filed for relief that would end the rate freeze and authorize rate increases. As the year ended, the utilities were threatened with bankruptcy, the legislature was reviewing the restructuring laws, and consumers were facing ongoing stage 2 emergencies and rolling blackouts. Mr. McDonald attributed the high prices in California to competitive market forces, market design problems, and sellers of power with market power acting in a manner that raised market-clearing prices. Market forces affecting power production costs in California include rises in natural gas prices and NOx credits, lower-than-expected hydroelectric production in Northwestern states due to low rainfall, and unusual weather. While reserve margins were forecast to be 13.5 percent for the summer of 2000, the industry faced unusually high temperatures and increased demand, up 13 percent in California over 1999. New generation (672 MW) had failed to match the growth in demand (5,522 MW) over the past five years. Market design problems with California's stab at restructuring are numerous. Utilities were required to produce and sell all of the power through the power exchange, which created an impediment to the use of forward contracts and other risk management strategies. Some sellers are alleged to have "gamed" the system by exporting power to the Pacific Northwest in response to low hydroelectric output. Utilities were strongly encouraged to divest their generation assets. Finally, the price paid to all sellers for electric power was set at the highest market-clearing price. While the abusive exercise of market power has been alleged, Mr. McDonald noted that it is difficult to prove that suppliers withheld power from the market in order to drive up prices for available electricity. Unplanned power plant outages were higher that expected. Studies of bidding behavior have thus far not provided conclusive evidence than high prices were due more to exercises of market power than from the influence of higher production costs. On November 1, 2000, FERC issued an order to help California by removing the requirement that investor-owned utilities buy and sell into the power exchange, redesigning the bidding process for the power exchange, and changing the governance of the independent system operation and the power exchange. 12 With respect to the relationship of wholesale and retail prices, Mr. McDonald noted that several factors have recently produced markets where the wholesale price exceeds the retail price. The resulting negative retail margin has led many competitors to withdraw from markets and caused many of their customers to return to the provider of last resort. He expressed confidence that, over time, the introduction of new generation capacity will lower wholesale prices. Commodities markets tend to experience volatility and cyclical pricing, and electricity is not expected to be any different. Electricity's unique attributes, including the inability to store supply, instantaneous demand for customers' seasonal spikes in demand, and the frequent need for short-notice shut-downs lead to a delicate supply-demand balance. The electricity market is complicated by local opposition to power plant siting, which may impair the market's ability to increase supply to keep pace with growth in demand. The ability of electricity generators to build anywhere will tend to foster the direction of capital to locales where plant construction is comparatively inexpensive and faces less opposition. Mr. McDonald predicts that, notwithstanding the California conundrum, the restructuring of the electric industry is likely to continue across the nation. New generation may be needed to reduce wholesale prices. Based on the experience of other industries, retail competition for electricity should be viable. He acknowledged the tension between wishing to dampen dramatic swings in standard offer residential prices and the fact that allowing the market to set the price for power is the best way to foster the development of a competitive market. At the December 13, 2000, meeting David K. Owens, Executive Vice President of the Edison Electric Institute, addressed the prospects for federal restructuring legislation. The most significant issues to be addressed are market power, transmission, consumer protection, and reliability. Mr. Owens agreed that much of the problem with California's power prices is attributable to rules that banned long-term fixed cost contracts. This facet of California's restructuring law prevented utilities from hedging costs and has restricted them to purchasing load on the volatile short-term spot market. Environmental constraints were also allotted some responsibility. Utilities were required by California's restructuring law to sell into and buy from the power exchange for a period of five years. He also cited the fact that utilities were encouraged, if not required, to divest ownership of generation facilities. California's actual rate of growth in demand of between 5.3 percent and 21 percent far outstripped the forecasted rate of 2.3 percent. The capability of California to import power from other states was limited, totaling only 12,000 MW out of peak demand of 45,000 MW. Rises in the cost of natural gas have added 1.5 cents per kilowatt-hour to electric power costs. In addition, the state law requiring certain generators to purchase pollution allowances has added to electricity prices, as soaring costs of NOx allowances added 3.6 cents per kilowatt hour to electric power costs. Echoing Mr. McDonald's analysis of the causes of California's problems, Mr. Owens cited a FERC staff report on market conditions in California identified three factors contributing to high prices: (i) competitive market forces, including a scarcity of power relative to demand and increased power production costs; (ii) market rules, including a lack of forward contracting, significant underscheduling, the single-price auction system, and limited demand responsiveness; and (iii) the opportunity for, and possible exercise of, market power. 13 FERC's recent actions in response to California's problems focus on bringing temporary price stability through modifying wholesale power purchase rules, while addressing longer-term reforms such as managing transmission congestion and ensuring adequate reserve margins. Differences both in the restructuring laws of Virginia and California and in such factors as reliance on natural gas, environmental policies, and plans to build generation and transmission capacity led Mr. Owens to the conclusion that the Commonwealth may avoid the problems facing California. Mr. Owens cautioned that the reliability of the nation's power transmission system is being tested. Transmission capacity is declining relating to its load. Investments in transmission have declined by an average of $115 million per year since 1975. As a result, transmission congestion is up 140 percent in 1999-2000. The biggest barrier to transmission expansion is siting issues, especially local opposition. Uncertainty in the regulatory environment, especially as to industry structure and regulatory rules in areas such as FERC jurisdiction and the role of independent system operators (ISOs) in setting rates, also pose barriers. Mr. Owens concluded that proper electric power market design will lead to lower electric prices, new technology developments, and more options for consumers. 3. Virginia Electricity Reliability Summit Shortly after the Task Force's June 13 meeting, Energy Secretary Bill Richardson and Richmond Mayor Timothy M. Kaine hosted the Virginia Electricity Reliability Summit at Virginia Commonwealth University's School of Engineering. The June 19, 2000, meeting was moderated by Edward L. Flippen of McGuire Woods. Panelists included representatives of an investor-owned utility, a corporation, labor interests, a large consumer, and an energy conservation organization. Congressman Tom Bliley of Richmond presented the Summit's keynote address. He noted that the House Commerce Committee held 34 hearings and heard from more than 350 witnesses on issues related to electric utility restructuring since 1995. The enactment of federal restructuring legislation is necessary to keep pace with the changes occurring in Virginia and elsewhere. He stressed the need for greater reliability and competition on the interstate transmission grid. Only Congress can eliminate the regulatory uncertainty that is currently stifling investment in electricity markets. He observed that in the preceding week, Detroit experienced a major blackout when distribution lines serving portions of that city went down. In California, a heat wave caused a utility to call for rolling blackouts affecting 35,000 customers. The theme of his remarks was that the elimination of regulatory uncertainty and unleashing competition will spur the expensive investments in power plans and transmission lines that are need to improve system reliability. Congressman Bliley's remarks are attached as Appendix D. Federal Energy Secretary Richardson remarked that Virginia "seems to be in good shape," but is at risk if neighboring states have problems. He echoed the concern that few companies are investing in power plants because of uncertainty as to the future of electric power markets. SCC Chairman Hullihan Moore observed that while the reserve margins of investor- owned utilities have declined from 25 percent to 13 percent over the past five years, Virginia still 14 compares favorably to its neighbors. One area of concern is the Eastern Shore, which faced problems last year. However, new units scheduled to come on line by July 1, 2000, were expected to alleviate the shortages faced in previous years. D. COMPETITION FOR METERING AND BILLING SERVICES Electricity bills and meters often are an electric service provider's most direct contact with customers. Advocates of competition for metering and billing services assert that competition for these services will lead to diverse pricing and billing options that can help stimulate competition in the retail electricity market. The 2000 Session of the General Assembly amended the Restructuring Act to require the SCC to recommend to the Task Force whether competitive metering services, billing services, or both, should be provided by licensed providers. Section 56-581.1 further directed the SCC to address the appropriateness of, and commencement date for, the competitive provision of these services. The SCC's recommendations were required to include a draft plan for the implementation of competition. The recommendations and draft plan, which were due by January 1, 2001, were to be developed consistent with eight criteria enumerated in subsection A of § 56-581.1. The SCC filed its recommendations and draft plan on October 10, 2000, and held a public hearing on its cases (PUE000346) on November 1, 2000. SCC staff presented the recommendations and draft plan on retail electric billing and metering services to the Task Force at its meeting on January 5, 2001. The full report, dated December 12, 2000, may be viewed at the SCC's Internet web site at www.state.va.us/scc/caseinfo/reports.htm. The SCC's report proposes authorizing licensed competitive suppliers of electric energy, or competitive service providers ("CSPs"), to offer and coordinate the provision of billing service to retail customers under three options: (i) separate billing by each retail service provider; (ii) consolidated billing by the consumer's incumbent electric utility, or local distribution company ("LDC"); and (iii) consolidated billing by the consumer's CSP. The SCC recommended that options (i) or (ii) be implemented January 1, 2002, and that option (iii) be implemented no later than January 1, 2003. Municipal electric utilities and electric cooperatives shall be exempt from requirements that they support the CSP consolidated billing option, as long as they do not offer competitive electric energy supply to customers in the service territory of other incumbent electric utilities. Under this proposal, the electricity consumption tax sections of the Virginia Code (§ 58.1-2901 et seq. and 58.1-3814) would need to be amended due to the fact that a CSP, rather than the LDC, may be authorized or required to issue consolidated bills to assess, collect and remit state and local consumption taxes. The SCC also recommended (i) that the General Assembly clarify which costs related to competitive billing services should be recovered by incumbent utilities, and (ii) that incumbent utilities coordinate with licensed service providers, provided that the reasonable costs of such coordination are recovered by the utility. The SCC noted that this provision has generated questions. For example, a utility asserted that the costs of enrolling and switching customers, load profiling, and transferring consumption data to CSPs are reasonable costs of coordination. The SCC noted that, as such costs would be incurred by utilities in the course of interaction with CSPs regardless of whether billing services are made 15 competitive, they may be beyond the scope of the intent of the cost recovery provision of subsection D of § 56-581.1. Section 56-581.1 requires the SCC to "adjust the rates for noncompetitive services provided by each utility so that such rates do not reflect costs associated with or properly allocable to the services made subject to competition." The SCC asked that the General Assembly further clarify the SCC's authority to calculate competitive billing service costs and to determine the appropriate method of cost recovery. The SCC did not recommend immediate action regarding competition for metering services. Legislative action should be deferred pending further study. Comments indicate that the issue is complex and controversial, and positions advanced by interested parties varied widely. In those states that have adopted competitive metering, there is very little market development. The SCC noted, however, that if the General Assembly presently desires to enable transition to competition for metering services, it could authorize the SCC to approve incumbent utility competitive metering service plans upon findings that such plans satisfy the eight criteria enumerated in subsection A of § 56-581.1. E. OTHER RESTRUCTURING ACTIVITIES Section 56-595 of the Restructuring Act directs the Task Force to monitor the work of the SCC in implementing the Act, receiving such reports as the SCC may be required to make pursuant to the Act, including reviews, analysis, and impact on consumers of electric utility restructuring programs of other states. The Task Force received reports on the status of implementation of the Act from the SCC at its June 13 and December 13 meetings. Rather than decreasing the SCC's workload, the deregulation of the electric utility industry has increased the burden on the Commission and its staff. The number and complexity of proceedings conducted by the Commission in 2000 reflects the agency's commitment to transitioning the electric generation sector from regulated monopolies to market competitors, in accordance with the template provided by the 1999 Restructuring Act. 1. Pilot Program Proceedings The SCC issued an order approving Dominion Virginia Power's retail access pilot program, named Project Current Choice, on April 28, 2000. Phase I of the pilot involved up to 35,580 residential and commercial participants, and 255,000 kW of load for commercial and industrial customers, in the Richmond area. Phase II, implemented in Northern Virginia in the last quarter of 2000, added another 35,500 residential and commercial participants. The order also established the method by which a projected market price for generation, for use in setting wires charges, is to be calculated. Historical price data from the PJM Interconnect will be used in determining the projected market price. The "price to compare" reflects the price customers currently pay a utility, so pilot participants can effectively compare offers from competitive suppliers. The price to compare includes the projected market price for generation and transmission costs. Using their usage history and the price to compare, customers can calculate the savings that might be achieved by switching to a competitive service provider. 16 The SCC issued an order setting the price to compare for participants in Dominion Virginia Power's Project Current Choice on June 9, 2000. The price to compare differs among different classes of customers. For an average residential customer in the Richmond area, the price to compare is 5.117 cents/kWh. For other classes of customers, the average annual prices to compare are 3.688 cents/kWh for industrial, 4.159 cents/kWh for large commercial, 4.574 cents/kWh for medium commercial, and 4.714 cents/kWh for small commercial services. However, each customer's price to compare varies based on usage patterns. Each volunteer participating in the pilot program is sent its particular "price-to-compare" data. In addition to a competitive supplier's offered price, customers must also pay a regulated distribution charge, a wires charge, and taxes. The annualized average price to compare for various rate schedules under the Dominion Virginia Power pilot program is attached as Appendix E. David Koogler, Project Manager with Dominion Virginia Power, described the incumbent utility's rollout of Project Current Choice at the Task Force's June 13 meeting. The pilot program will cease upon the implementation of retail choice under the Restructuring Act in January 2002. As the sponsor of the pilot program, the utility is responsible for consumer education associated with the pilot program. However, upon the start of statewide competition in 2002, the SCC will assume responsibility for consumer education efforts. Project Current Choice has two goals: to test procedures and systems, and to create consumer awareness and interest. Mr. Koogler stressed that expectations for the pilot need to be realistic and that the success of the pilot will not be measured by the number of customers who switch to competitor suppliers. An update on Virginia's electric pilot programs at the Task Force's December 13 meeting noted that 18,276 of the 38,108 volunteers for Phase I (Richmond Area) of Dominion Virginia Power's Project Current Choice had switched to a competitive service provider. Of the 24 large commercial customers selected by lottery to participate in the pilot, four (with 25.3 percent of available kWh) switched providers, and two of the four large industrial customers (with 41.4 percent of available kWh) switched providers. Separate proceedings were undertaken by the SCC with respect to AEP-Virginia's pilot program. Projected market prices are to be determined using TVA and Cinergy hub prices. Rather than focusing on specific regions, AEP's pilot is offered throughout their service territory. The pilot program was to be open to as many as 22,000 customers at its inception, and to another 22,000 customers on March 1, 2001. The SCC's order approving AEP-Virginia's pilot program (Case No. PUE980814) was issued on June 15, 2000. On August 17, 2000, the SCC released information on the market price for generation for AEP-Virginia's pilot program. For eligible residential customers, the projected market price is 4.45 cents/kWh. The projected average market price is higher than the Company's current average cost of generating electricity for its own customers of 3.67 cents/kWh. Rappahannock Electric Cooperative's application for approval of an electricity retail access pilot program was approved by the SCC on July 28, 2000 (Case No. PUE000088). 17 Participation in REC's pilot is limited to approximately 900 customers to be selected from volunteers among 2,000 randomly selected residential customers. The SCC has established the projected market price for generation for REC's pilot: for residential customers, the annual average price is 4.766 cents/kWh; for small commercial customers, it is 4.363 cents/kWh; and for large industrial customers, it is 3.684 cents/kWh. The SCC, by order entered May 26, 2000, established rules governing the operation of both electric and natural gas pilot programs, applicable to competitive service providers, local distribution companies, and aggregators. The rules impose internal controls governing relationships between competitive service providers and affiliated local distribution companies. The rules allow a 10-day rescission period for contacts with competitive service providers, and address partial payments by customers. The success of any of the pilot programs, as well as for electric utility restructuring, will hinge on the ability to attract competitive service providers to the fledgling markets. Appendix F shows the status of CSPs and aggregators who had applied for licensure as of July 26, 2000, for both the electricity and natural gas pilot programs. The SCC maintains a current list of alternative energy suppliers at the Energy Choice web site (www.yesvachoice.com/ supplierlist.htm). 2. Net Metering Section 56-594 of the Restructuring Act required the SCC to establish, by regulation, a program to begin no later than July 1, 2001, that affords eligible customer-generators the opportunity to participate in net energy metering. The SCC's net metering rules became effective May 25, 2000. The rules provide for a single meter for customer-generators and a single rate for energy added to or withdrawn from the power grid. They also require net metering customers to notify their local distribution company and energy service provider before interconnecting. 3. Electric Cooperative Affiliates Furnishing Non-Utility Services The SCC, by order issued June 29, 2000, in Case No. PUA000028, promulgated rules pursuant to Virginia Code §§ 56-231.34:1 and 56-231.50:1. These rules govern the conduct of utility consumer service cooperatives and utility aggregation cooperatives, in order to promote effective and fair competition between their affiliates and other entities engaged in the same or similar unregulated businesses. The regulations prohibit cost-shifting and subsidies between a cooperative and its affiliate, establish codes of conduct detailing permissible relations between a cooperative and its affiliates, and prohibit cooperatives from discriminating against nonaffiliated entities. 4. Functional Separation Plans As discussed above, the SCC issued its order establishing rules for the functional separation of incumbent electric utilities (Case No. PUA000029) on October 19, 2000. Delmarva Power & Light Company (Case PUE000086) and Allegheny Power (Case No. PUE000280) filed cases for approval of plans to functionally separate, by divesting their 18 generation facilities, prior to the adoption of SCC's regulations in October. The SCC's final order approving the Delmarva Power & Light Company functional separation plan was issued on June 29, 2000. An order approving Allegheny Power's transfer of its generation assets to an affiliate was entered by the SCC on July 11, 2000. Virginia's other investor-owned utilities filed functional separation plans in accordance with the Restructuring Act's deadline of January 1, 2001. The remarks of William G. Thomas on behalf of Dominion Virginia Power dated December 13, 2000, relating to the utility's functional separation plan, are attached as Appendix G. Under this plan, the utility's generation assets would be transferred to Dominion Generation Company. Dominion Virginia Power would then become only a distribution company that would purchase all the power used by its customers in Virginia. Under the plan, the electricity from its plants will be sold into the wholesale market rather than to Virginia Power's present retail electricity customers. A public hearing on the plan has been scheduled for October 10, 2001. 5. Regional Transmission Entities In Case No. PUE990349, the SCC addressed participation of incumbent electric utilities in regional transmission entities (RTEs). A final order adopting rules for RTE participation was entered on July 19, 2000. The rules are precipitated by §§ 56-577 and 56-579 of the Restructuring Act, which require incumbent electric utilities to join or establish RTEs by January 1, 2001. Such utilities are also required to seek SCC authorization for transfers of their transmission assets to the RTEs. In promulgating the rules, the SCC noted that incumbent electric utilities are required by FERC Order 2000 to file information with FERC concerning plans to join a regional transmission organization (RTO) by January 1, 2001 (or January 15, 2001, for utilities who are members of a RTO that complies with FERC Order 888's Independent System Operator principles). The SCC concluded that the Commonwealth's actions pertaining to RTEs are not preempted by federal law. The SCC's regulations establish elements of RTE structures be applied in determining whether to authorize transfer of ownership or control of transmission assets to an RTE. The SCC's order required Virginia's five investor-owned electric utility companies to submit applications by October 16, 2000, for transferring ownership or control of transmission assets to an independent operator. The date coincided with the October 15, 2000, date established by FERC for utilities to announce their plans for joining an RTO. The Task Force received testimony last year that Virginia's largest electric utilities would belong to the Alliance Regional Transmission Organization. The Alliance RTO is comprised of American Electric Power Service Corporation, Consumers Energy Company, Detroit Edison Company, First Energy Corp., Dominion Virginia Power, and Commonwealth Edison. Ameren Corp., Illinois Power, Northern Indiana Public Service, and Dayton Power are expected to join the Alliance RTO. A map of the service territories of these utilities is attached as Appendix H. On June 3, 1999, the Alliance companies filed an application to FERC for approval of the Alliance RTO. This proposal would permit transmission owners to either divest their transmission assets to the RTO or to transfer control of such facilities to the RTO. This concept 19 would enable transmission owners (and any transmission user) to individually own up to five percent of the voting stock of Alliance RTO. Such transmission owners could potentially control 25 percent of the voting stock. This voting block could be increased if other divesting utilities join the RTO. Additionally, divesting owners could obtain a non-voting ownership interest in the entity that would manage the day-to-day operations of the RTO. The SCC, the Virginia Committee for Fair Utility Rates, the Attorney General's Office, and others intervened in the Alliance's FERC filing in July, 1999. The parties raised significant concerns regarding whether the proposed ownership interests of transmission owning utilities would prevent independent and non-discriminatory operation of the RTO. They questioned whether the Alliance's proposed pricing policies were consistent with the FERC's prohibition regarding the "pancaking" of transmission rates. They also questioned whether the geographic configuration of the RTO would serve as a detriment to effective competition, noting that the Alliance RTO has been described as a "toll-gate" between mid-western and eastern power markets. Glen B. Ross of Dominion Virginia Power briefed the Task Force on the status of the Alliance RTO on January 5, 2001. He reported that on December 20, 1999, FERC issued an order conditionally approving the Alliance RTO and directing that certain proposals be modified. The FERC found that the Alliance did not meet Order No. 888's independence standard since, among other things, the Alliance members' ownership of up to 25 percent of the RTO's stock at formation could give members effective control of the RTO. FERC also found that the proposed pricing proposal violated a fundamental tenet of its Order 2000. FERC noted concerns regarding the configuration of the RTO. Rather than supporting a regional market based on historical trading patterns, the Alliance would perpetuate the existing situation where the Alliance members separate the buyers and sellers that constitute the predominant west-east trading patterns. On February 17, 2000, Alliance members made a partial compliance filing in response to the FERC's conditional approval order. In this filing, the Alliance members attempted to provide further support for its original proposal to allow divesting transmission owners to have a five percent voting interest in the RTO. They also modified a number of other proposals in response to FERC's directives. On May 18, 2000, FERC issued an order finding that the Alliance members had not adequately addressed the independence issues. FERC specified that the aggregate voting interest of divesting transmission owners could not exceed 15 percent. The compliance order reserved judgement with regard to the configuration issue. The Alliance members then developed a revised pricing proposal and made an additional compliance filing in September, 2000. Mr. Ross reported that the Alliance RTO is on track to meet the December 15, 2001, deadline under Order No. 2000 that RTOs be up and running. 6. Consumer Education Program Activities Virginia Code § 56-592.1, added to the Restructuring Act in 2000, directs the SCC to establish and maintain a consumer education program in conjunction with implementation of the 20 Act. The SCC has established an Internet web site (www.yesvachoice.com) to furnish information about energy choice for both electricity and natural gas. The web site contains links to utility-maintained customer choice programs, and provides information to suppliers interested in providing services in Virginia. The SCC also maintains a toll-free telephone number (1-800- YES-2004) to provide information regarding utility restructuring. At the December 13, 2000, meeting of the Task Force, the SCC reported the establishment of the Virginia Energy Choice Education Advisory Committee, consisting of 15 representatives of consumers, utilities, and an energy marketer. The members of the Advisory Committee are listed in Appendix I. 7. Electric Utility Merger Activity The SCC has also been reviewing merger activity involving electric utilities. Recent utility merger activities in the Commonwealth include: The merger of Dominion Resources and Consolidated Natural Gas Company, which was approved by SCC December 22, 1999. The merged entity was required to divest CNG's Virginia-based local distribution company, Virginia Natural Gas. AGL Resources received SCC approval on July 28, 2000, to purchase Virginia Natural Gas from Dominion Resources. VNG will function as a separate subsidiary of AGL. PowerGen and LG&E received SCC approval in July 2000 to merge. LG&E subsidiary Kentucky Utilities Corp. operates as Old Dominion Power Company in Virginia. NiSource (based in Indiana) and Columbia Energy Group received SCC approval in July 2000 to merge. NiSource will acquire control of subsidiary Columbia Natural Gas of Virginia. American Electric Power merged with Central and South West Corp. FERC approved the merger in March 2000. The merger activity in Virginia tracks events occurring nationally. Since the passage of the Energy Policy Act of 1992, which opened the U.S. electric power industry to the start of competition, corporate combinations have become widespread. Investor-owned electric utilities have sought to improve their position in the increasingly competitive electric power industry. Since 1992, investor-owned utilities have been involved in 26 mergers. As of December 1999, an additional 16 mergers were pending approval. By 2000, the 10 largest investor-owned electric utilities will own an estimated 51 percent of investor-owned electric utility-held generation capacity, and the 20 largest will own an estimated 73 percent. In addition to mergers within the electricity industry, investor-owned electric utilities are merging with or acquiring natural gas companies, contributing to convergence of the two 21 industries. Combining energy marketing expertise, improving access to natural gas supply, and expanding products and services are reasons most often mentioned for mergers with gas companies. Influenced predominantly by state-level electricity industry restructuring programs that emphasize the unbundling of generation from transmission and distribution services, and in some cases by a desire to exit the competitive power generation business, investor-owned electric utilities are divesting power generation assets in unprecedented numbers. From late 1997 through September 1999, investor-owned electric utilities have divested about 17 percent of total U.S. electric utility generation capacity. Most of the sold capacity has been acquired by nonutility power producers that are subsidiaries of utility holding companies. As a result of mergers and divestitures over the past few years, the organizational structure of the electric power industry is changing. The traditional role of the electric utility as a provider of electric power is giving way to the expanding role of nonutilities as providers of electric power. Additions to capacity by utilities are decreasing while additions by nonutilities are increasing. In the period 1985-1991, utilities were responsible for 62 percent of the industry's additions to capacity. That figure dropped to 48 percent in the period 1992-1998. The nonutility share of net generation rose from nine percent (286 million MWH) in 1992 to 11 percent (406 MWH) in 1998. (U.S. DOE, Energy Information Administration, "The Changing Structure of the Electric Power Industry 1999: Mergers and Other Corporate Combinations," December 1999) 8. Future SCC Proceedings The SCC reported to the Task Force that, in addition to continuing its involvement with the aforementioned activities, it envisions several major new proceedings in 2002. Working groups have been established to assist in the development of permanent rules for competition and the development of rules for competitive billing, metering, or both. As the January 1, 2002, commencement date for consumer choice approaches, the SCC will develop a plan for the phase- in of competition. The SCC will also address the implementation of its rules regarding regional transmission entities and functional separation of investor-owned utilities in cases to be heard during 2002. 22 III. DELIBERATIONS AND RECOMMENDATIONS When the General Assembly enacted the Restructuring Act in 1999, it acknowledged that its work was not complete. Its creation of the Task Force and the Consumer Advisory Board illustrate the recognition that as the Act is implemented, the legislation would need occasional fine-tuning to address unanticipated issues. As in the previous year, the Task Force assumed the role of gatekeeper for any legislation affecting utility industry restructuring. Commencing with its December 5, 2000 meeting, the Task Force reviewed proposals for amendments to the Restructuring Act. Several of the proposals were incorporated into omnibus legislation backed by the Task Force. Of the other proposals brought before the Task Force, some proceeded as stand-alone bills, with or without the support of the Task Force. A. OMNIBUS BILL -- SENATE BILL 1420 Senate Bill 1420 incorporates the major policy initiative of the Task Force in the 2000 interim. The major focus of this omnibus legislation is to address the SCC's order establishing functional separation rules, with particular emphasis on the rules addressing pricing for default service after the capped rate period. Though the catalyst for Senate Bill 1420 was the SCC's decision affecting default service and functional separation, amendments to the Act were also recommended that were intended to improve the likelihood that by July 1, 2007, the market for electric generation service in Virginia will be sufficiently competitive that there will be no need for default services when the capped rate period expires. Under the Task Force's recommended omnibus bill, the SCC is required to attempt to identify default service providers through competitive bidding. If that process does not produce willing and suitable default service providers, it may require a distributor to provide default service. The SCC is prohibited from regulating, on a cost plus or other basis, the price at which generation assets or their equivalent are made available for default service; however, a distributor may bid to provide default service on such basis. A distributor's default service plan must provide that the procurement of generation capacity and energy will be based on the prices in competitive regional electricity markets. If a plan is not approved, the SCC will establish rates for default services based on prices in competitive regional electricity markets. A "competitive regional electricity market" is defined as a market where competition, not statutory or regulatory price constraints, effectively regulates the price of electricity. In considering functional separation plans, the SCC will consider the potential effects of transfers of generation assets on the rates and reliability of capped rate service and on default service and the development of a competitive market for retail generation services in Virginia. The omnibus bill contains provisions restricting the ability of an incumbent utility to make further transfers of generation assets without SCC approval. In order to facilitate the development of a competitive electricity market in Virginia, and thereby avoid the need for default service, the omnibus bill includes provisions requiring the SCC to consider the goals of advancement of competition and economic development in all relevant proceedings. It also requires the SCC to report annually on the status of competition in 23 the Commonwealth and the status of the development of regional competitive markets, and to make its recommendations to facilitate effective competition in the Commonwealth as soon as practical. The omnibus bill also establishes timetables for the introduction of competitive retail billing and metering services. Providers of electricity distribution services will be allowed to recover their costs directly associated with the implementation of billing or metering competition through a tariff for all licensed suppliers, in a manner approved by the SCC. The rates for any non-competitive services provided by a distributor will be adjusted to ensure that they do not reflect costs properly allocable to competitive metering or billing service. The bill includes amendments to consumption tax provisions to address the fact that billing services may be provided by competitive providers who are not the same as the company delivering electricity to a consumer. At the SCC's suggestion, the omnibus bill includes provisions that authorize the SCC to establish competition phase-in plans on a utility-by-utility basis, establish that the provisions of the Act will be applied to any municipal electric utility that is made subject to the Act to the same extent that such provisions apply to incumbent utilities, provide that rates for new services applied for after January 1, 2001, will be treated as capped rates, and clarify that default service will be made available after consumer choice is available to all customers in Virginia. Other provisions of the omnibus bill require the SCC to establish minimum periods, if any, that customers must receive service from their incumbent electric utilities or from default service providers after having obtained service from other suppliers. 1. Development of Omnibus Bill As noted in Part II of this report, responding to the SCC's order establishing functional separation rules for investor-owned utilities proved to be the most important issue addressed by the Task Force during the 2000 interim. At the December 13 meeting, representatives of Dominion Virginia Power, AEP-Virginia, and the Alliance for Lower Electricity Rates Today ("ALERT") informed the Task Force that they and representatives of the Attorney General's Office were working to reach a compromise, but had not reached a mutually agreeable solution. The Task Force encouraged them to continue their efforts. When the Task Force next met on January 5, 2001, interested parties continued negotiations during the course of the meeting. Though draft legislation addressing issues of default services pricing and competition for metering and billing services was circulated at the meeting, the Task Force did not consider its specific terms. By the close of the meeting, the members of the "stakeholder group," including Dominion Virginia Power, Old Dominion Electric Cooperative, the Alliance for Lower Electricity Rates Today (ALERT), the Attorney General's Office, AEP-Virginia, Allegheny Power, and the Committee for Fair Utility Rates, announced that the issues brought to them had been resolved and that they would provide the Task Force with recommended legislation in the upcoming week. The Task Force next met on January 12, during the first week of the 2001 Session. The agenda included a review of the second revised final draft of legislation advocated by the 24 stakeholder group. Task Force members noted their concerns to the second revised final draft legislation. A copy of the second revised final draft is available at the Task Force's web site at http://dls.state.va.us/groups/elecutil/01_12_01/FunctionalSeparation.htm. Reservations were expressed to language in the stakeholder group's draft that reflected an effort to change the responsibilities and duties of the Task Force. The chairman observed that while the Task Force's approach has been to encourage stakeholder groups to work collaboratively, it was never suggested that the Task Force would abdicate its responsibilities. SCC staff shared their concerns regarding the second revised draft of the legislation with the Task Force. A copy of the staff's January 11, 2001, memorandum is attached as Appendix J. Major areas of concern included the constitutionality of the pricing of default service, the application of the Utility Transfers Act to generation divestiture, and the enforceability of the prohibition on further resale or transfer of the divested generation assets. The Task Force held its final meeting on January 19, 2001, at which time Dominion Virginia Power spokesman William G. Thomas presented the fifth revised final draft of the omnibus legislation. A copy of the draft is available through the Task Force's web site at http://dls.state.va.us/groups/elecutil/01_19_01/revdraft2.pdf. Mr. Thomas noted that the stakeholder group that crafted the compromise is composed of representatives of the same players that crafted the Restructuring Act two years previously. The fifth revised final draft addressed several of the concerns identified in the SCC staff's January 11, 2001, memorandum. The stakeholder group provided the Task Force members with a memorandum dated January 18, 2001 (Appendix K), noting how the SCC staff's concerns were either addressed or were deemed to be unfounded. SCC staff continued to voice reservations with aspects of the stakeholder group's proposal. A copy of the SCC staff's January 18, 2001, memorandum, raising additional issues regarding default service and utilities' voluntary divestiture of generation assets, is attached as Appendix L. Stakeholder group representatives addressed the SCC staff's concerns in the course of the January 19 meeting. Judith W. Jagdmann of the Attorney General's Office concluded that the latest draft of the stakeholder group's proposal provided adequate protection for Virginia consumers. For example, if there did not exist a regional competitive market that could be examined for purposes of determining default rates, she opined that the SCC would be authorized to take expert testimony from economists to determine what would be a competitive market price for generation if such market were to exist. Ms. Jagdmann and Senator Stolle also concluded that the threat of an unconstitutional taking of utilities' property through the establishment of confiscating rates was unfounded. Edward Flippen and former SCC Solicitor General Stewart Farrar testified that existing provisions in the Virginia Code provide adequate precedent for defining a competitive market as one where competition is an effective regulator of the price for services. Examples cited by Mr. Farrar include §§ 56-235.5 and 56-481.2. Senator Watkins raised concerns about the effect of the new bidding process for default service providers under § 56-585 on the proposed provisions in § 56-590 that would prohibit regulation on a cost-of-service basis. The Task Force endorsed a clarification stating that the restriction on the SCC's authority to regulate prices for default services on a cost-of-service basis 25 does not affect the ability of a distributor to voluntarily offer to provide default service on any basis. The Task Force closed its January 19 meeting by endorsing the introduction of the omnibus legislation in the 2001 Session, which incorporates most of the substantive recommendations of the stakeholder group presented in the fifth revised final draft. The Task Force then scheduled a meeting for January 26, 2001, to consider SCC staff comments on the legislation and a proposal by Delegate Woodrum that would postpone the introduction of competition by one year. The Task Force's omnibus bill was introduced by Senator Norment as Senate Bill 1420 on January 19, 2001. A discussion of major elements of the omnibus bill, including amendments made in committee, follows. A copy of Senate Bill 1420 as it passed the General Assembly is attached as Appendix M. 2. Default Service Rates Senate Bill 1420 originated as the response of the stakeholder group and the Task Force to the SCC's order adopting rules for functional separation plans. The most contentious aspect of that order involved default service pricing by investor-owned utilities. As previously noted, two Commissioners ruled that default service should be priced on the basis of cost of services. Opponents countered that if Virginia regulates rates based on cost of service, competition will not develop. The third Commissioner concluded that the market should set default service rates. Opponents countered that such an approach would cause rates to be set by an unregulated monopoly. While the correctness of either position could be debated, the stakeholder group concluded that neither offered the best public policy. They proposed, and the Task Force agreed to, an alternative approach: if after the capped rate period the SCC must designate default service providers, the price of the default service shall be based on competitive market prices rather than traditional cost-of-service rate regulation. Section 56-585 of the Restructuring Act, as enacted in 1999, provided that the SCC may require an incumbent electric utility, if a billing provider is not designated as a default service provider, to provide default service at rates that are fairly compensatory to the utility and that reflect the cost of energy prudently procured, including energy provided for the competitive market. It further stated that rates for default service may be set using any rate method that promotes the public interest. The stakeholder group proposed to amend § 56-585 to require that the SCC shall periodically conduct bidding processes and, upon a finding that the public interest will be served, designate willing and suitable providers of default service. If the bidding process fails to result in designation of a default service provider, the SCC may require a distributor to provide such services. The rates for default service after the capped rates expire, scheduled for July 1, 2007, shall be based upon competitive market prices for electric generation services. The stakeholder group also proposed that a distributor who is designated to provide default service may submit to the SCC a plan for procuring electric generation services necessary 26 to meet its default service provider obligations. The SCC will approve the distributor's plan if the Commission determines that the procurement of generation capacity and energy under the plan is based on the prices of capacity and energy in competitive regional electricity markets. The SCC may modify a distributor's plan only with the concurrence of the distributor or it may reject the plan. If a plan is not approved, the SCC will establish rates for the generation component of default services based on the prices of capacity and energy in competitive regional electricity markets. In implementing these provisions, the SCC also shall consider default service customers' need for rate stability and protection from unreasonable rate fluctuations. The January 18, 2001, fifth revised final draft of the stakeholder group's proposal added a provision providing that, in determining competitive regional electricity markets and rates for default service, the SCC shall consider the liquidity and transparency of such markets, whether competition is an effective regulator of prices in such markets, the wholesale or retail nature of such markets, the reasonable accessibility of such markets to the RTE to which the distributor belongs, and other factors it finds relevant. The proposed amendments to § 56-585 also specify that an electric co-op's rates for providing default service in its service territory shall be the co-op's capped rates during the capped rate period and shall be based upon the co-op's prudently incurred cost thereafter. These suggestions were included in Senate Bill 1420 as introduced. The bill was amended in the Senate Committee on Commerce and Labor during the 2001 Session to add, among other things, provisions specifying that (i) a competitive regional electricity market means a market in which competition, and not statutory or regulatory price constraints, effectively regulates the price of electricity and (ii) in establishing default service generation rates, the SCC, if it cannot identify regional electricity markets where competition is an effective regulator of rates, shall establish such rates for a distributor by setting rates that would approximate those likely to be produced in a competitive regional electricity market. In doing so, the SCC is required to take into account, in addition to the factors listed in subdivision C 4 a of § 56-585, such additional factors as it deems necessary to produce such proxy rates. 3. Functional Separation Section 56-590, as originally enacted, provided that the SCC may condition its approval of an incumbent electric utility's plan for functional separation on such utility's commitment to make generation assets, or their equivalent, available for electric service during the capped rate period and for any period that the incumbent electric utility serves as a default service provider. With regard to the functional separation of an incumbent electric utility's generation, transmission, and distribution services, the stakeholder group sought a clarification that would allow generation assets to be transferred to an unregulated affiliate, while the SCC may not condition its approval of such transfers on the price at which the assets are made available for default service prices. The SCC may, however, require that the equivalent of such assets be made available for electric service during any period the distributor serves as a default provider. 27 The stakeholder group's amendments provide that any election to make the "equivalent" of an incumbent electric utility's generation assets available for capped rate service or for default service shall be made by the incumbent electric utility and be subject to SCC approval based on adequately meeting the public interest. Any generation asset sold, transferred, or otherwise disposed of by the incumbent electric utility with SCC approval shall not be further sold, transferred, or otherwise disposed of without additional SCC approval during the capped rate period and, if applicable, during any period the utility serves as default provider. As introduced in Senate Bill 1420, the SCC shall have no authority to regulate, including on a cost of service basis, the price at which generation assets or their equivalent are made available for default service purposes. The fifth revised final draft specifically provided that the SCC's authority to regulate the price of default service shall be consistent with the pricing provisions applicable to a distributor prior to § 56-585. Senate Bill 1420 also includes language addressing Senator Watkins' concern that the restriction on the SCC's authority to regulate prices for default service shall not affect the ability of a distributor to offer to provide said service in any competitive bidding process on a cost plus basis or any other basis. The language of § 56-590 in Senate Bill 1420 was amended in the Senate Committee on Commerce and Labor to require the SCC, in exercising its responsibilities under §§ 56-590 and 56-90, to consider the potential effects of a transfer on rates and reliability of capped rate service and default rate service, and the development of a competitive market in Virginia for retail generation services. The inability to determine default service prices at the time of its consideration of a transfer shall not be grounds for SCC denial of approval of a transfer proposed by an incumbent electric utility. 4. Gaming the System Section 56-577 of the Restructuring Act establishes the schedule for transition to retail competition for electric generation services. At the December 13, 2000, meeting, Mark Tubbs, representing Virginia's electric cooperatives, alerted the Task Force members to the problem of consumers who elect to leave their incumbent supplier during periods of low prices and then return to capped rate service during periods of high prices. It was suggested that if a customer who has switched suppliers wishes to come back to his former supplier, he must stay with the incumbent for a period of at least 12 months. The cooperative's proposed amendment is attached as Appendix N. Bill Stephens of the SCC's Division of Energy Regulation observed that the "gaming" issue is a legitimate source of concern, and it is not addressed by the application of wires charges. The market price for generation services is determined by the SCC annually, and reflects an average price over the course of a year. Consequently, there may be times during the year when switching to a competitor will result in lower generation costs even after wires charges are added to the competitor's price of generation. The stakeholder group's proposal included language amending § 56-577 to limit consumers' ability to take advantage of the system by switching back and forth to CSPs. The proposed amendment to the section, which was included in Senate Bill 1420, provides that by 28 January 1, 2002, the SCC shall promulgate regulations regarding minimum periods, if any, that customers shall be obligated to receive service from their incumbent electric utilities or from default service providers after having obtained service for a period of time from other competitive suppliers of electric generation services. 5. Competition for Metering and Billing Section 56-581.1 was added to the Restructuring Act in 2000 upon the recommendation of the Task Force. As noted in Part II of this report, this section directed the SCC to recommend whether to implement competition for billing services, metering services or both. The SCC's report to the Task Force recommended that legislation be enacted in the 2001 Session establishing a schedule for billing service competition. The SCC also recommended that metering service competition be studied further before its implementation is scheduled. The advancement of competition was labeled by Ralph L. "Bill" Axselle, speaking on behalf of ALERT, as "the ultimate safety net." The this end, the stakeholder group included in its proposal the SCC's recommended timetable for competition for billing services, and advanced the SCC's recommended timetable for the start of competition for metering services. Senate Bill 1420 includes language providing that beginning January 1, 2002, distributors will be required to offer consolidated billing service to suppliers, aggregators, and retail customers, and licensed suppliers and aggregators will be permitted to bill customers separately for their services, subject to requirements established by the SCC. Beginning January 1, 2003, licensed suppliers and aggregators may offer consolidated billing service to distributors and retail customers. The SCC may delay implementation of competitive billing services to retail customers for up to one year if necessary to resolve issues of billing accuracy timeliness, quality, consumer readiness, or adverse effects on competition. The SCC is required to approve the provision of competitive metering services by licensed providers for large industrial and large commercial customers of investor-owned distributors beginning January 1, 2002, and for residential and small business customers of investor-owned distributors beginning January 1, 2003, as determined to be in the public interest and consistent with specified criteria, including consumer and technical readiness, safety, reliability, and quality. Upon the reasonable request of a distributor, the SCC shall delay the provision of competitive metering services in such distributor's service territory until January 1, 2003, for large industrial and large commercial customers, and after January 1, 2003, for residential and small business customers. By establishing a schedule for the provision of competitive metering services, the Task Force's recommendation rejects that portion of the SCC's recommendation. The SCC's recommended amendment to the Act addressing competitive metering and billing services is attached as Appendix O. The stakeholder group proposed authorizing the SCC to promulgate rules and regulations necessary to implement competitive billing and metering services, including licensing requirements for billing and metering service providers. Incumbent electric utilities are required to coordinate with licensed billing and metering providers. 29 Questions were raised by Senator Watkins regarding the recommended legislation's provisions for recovery of a utility's costs. As recommended by the Task Force, the SCC is required to allow a utility to recover its costs directly associated with the implementation of billing or metering competition through a tariff for all licensed suppliers, but not those costs that would be incurred in any event as part of restructuring. The SCC is required to determine the most appropriate method for recovering such costs. The SCC also is required to adjust the rates for any non-competitive services provided by a distributor so that the rates do not reflect costs associated with, or properly allocable to, the competitive service. Municipal electric utilities will not be required to provide consolidated billing services to licensed suppliers, aggregators or retail customers. Municipal electric utilities and cooperatives will not be required to coordinate the provisions of billing services. However, these exemptions shall not apply if the municipal utility or cooperative offers competitive electric energy supply to retail customers in the service territory of any other Virginia incumbent electric utility. The SCC, nevertheless, may permit any cooperative or municipal electric that pursues such competitive activity to maintain the exemption upon a demonstration of good cause. The SCC may approve the provision of competitive metering services by licensed providers for large industrial and large commercial customers of a cooperative after January 1, 2002, and for residential and small business customers of a cooperative on or after July 1, 2003. The inclusion of provisions providing for billing by persons other than the provider of electric services prompted amendments to several Code sections regarding the electricity consumption tax. Sections 58.1-2901, 58.1-2902, and 58.1-3814 are amended to substitute the phrase "provider of billing services" for "service providers," and to define providers of billing service to the person who bills a consumer for electric service rendered or, if there is multiple billing for such services, as the person delivering electricity to the consumer. Betty Long and C. Flippo Hicks spoke on behalf of the Virginia Municipal League and Virginia Association of Counties against the proposal for competitive billing services. Local governments have found that converting to the taxation system required by deregulative legislation is very competitive. The Task Force was urged to use caution and delay any legislation changing the rules applicable to billing for electricity consumption taxes for a year. 6. SCC Recommendations Included in the Omnibus Bill Senate Bill 1420 included several amendments to the Restructuring Act proposed by the SCC staff. At the Task Force's December 13, 2000, meeting, the SCC introduced several concepts for consideration. At the following meeting, the Task Force considered six issues, of which four were endorsed for inclusion in the omnibus bill. The first suggestion adopted by the Task Force authorized the SCC to establish phase-in plans for full competition on a utility-by-utility basis. Clarifying that this approach, as opposed to phasing in competition between January 1, 2002, and January 1, 2004, on a regional basis, was viewed as assisting the SCC in its implementation of the Act. The amended language in subdivision A 2 a of § 56-577 was included in Senate Bill 1420. 30 The second proposal amends § 56-580 to clarify the SCC's authority to apply the provisions of the Restructuring Act to municipal electric utilities that are made subject to the Act, to the same extent that such provisions are also applicable to incumbent electric utilities. As originally enacted, subsection F of § 56-580 provided that the Restructuring Act does not apply to any municipal electric utility unless (i) the municipality opts to have the Act apply or (ii) the municipal utility sells, offers to sell or seeks to sell electricity outside of the area served by the municipality as of July 1, 1999. The Act did not spell out how the Act would apply to such municipalities that became subject to the Act. The proposed amendment to subsection F of § 56- 580 provides that as a municipal electric utility is made subject to the Act, then the provisions of the Act applicable to incumbent electric utilities shall also apply to such municipal electric utility, mutatis mutandis. The third SCC proposal addresses new rates filed after January 1, 2001. The Restructuring Act is unclear as to whether rates for new types of services applied for after that date are to be treated as approved rates. The example offered by the SCC staff involved the provision of service to a new customer to whom existing tariffs do not apply. The proposed amendment to § 56-582 clarified that such new rates would, upon filing, be treated as a capped rate. The language included in Section A of § 56-582 provides that the SCC is establishing rates for new services, may use any rate, method that promotes the public interest and that is fairly compensatory to any utilities requesting such rates. The final SCC amendment endorsed by the Task Force clarifies that default service is to be made available commencing with the date customer choice is available to all retail customers throughout the Commonwealth. The amended language is included in Subsection A of § 56-585 of the omnibus bill. 7. Other Provisions The omnibus bill includes two other provisions advocated by the stakeholder group. First, the stakeholder group's proposal includes a new § 56-596 captioned "Advancing competition." This section, which was included in amended form in Senate Bill 1420, requires the SCC, in all relevant proceedings, to take into consideration the goals of advancement of competition and economic development in the Commonwealth. In addition, the SCC shall report annually to the Task Force and the Governor on the status of competition in the Commonwealth, the status of the development of competitive markets, and its recommendations to facilitate effective competition in the Commonwealth as soon as practical. This report shall include any recommendations of actions to be taken by the General Assembly, SCC, electric utilities, suppliers, generators, distributors and regional transmission entities that it considers to be in the public interest. The recommendations shall include actions regarding the supply and demand balance for generation services, new and existing generation capacity, transmission constraints, market power, suppliers licensed and operating in the Commonwealth, and the shared or joint use of generation sites. Senate Bill 1420 also includes an enactment clause specifying that the provisions of clause (iii) of subdivision B 3 of § 56-590 (which specify that generated assets sold, transferred or otherwise disposed of by an incumbent electric utility shall not be further sold, transferred or 31 otherwise disposed of without SCC approval) shall not apply to any sale, transfer or disposal of an incumbent electric utility's generation assets that was approved by the SCC pursuant to subsection B 3 of § 96-590 as it was in effect prior to the effective date of the omnibus bill (July 1, 2001). This enactment is intended to ensure that the restrictions imposed by the amended provision of the Act will not apply to an incumbent electric utility, such as Allegheny Power, that obtained approval of its functional separation plan by the SCC prior to the proposed amendments to the Act encompassed in the omnibus bill. The stakeholder group's fifth revised final draft included certain recommendations that were not included in the omnibus Senate Bill 1420. These provisions would have (i) provided that the Task Force is established to seek to ensure effective competition in the Commonwealth as soon as practical; (ii) extended the term of the Task Force from July 1, 2005, to December 31, 2008; (iii) requested the Task Force to report annually to the General Assembly and the Governor on the status of competition in the Commonwealth and its recommendations to facilitate effective competition in the Commonwealth as soon as practical, including any recommendations of actions to be taken by the General Assembly, SCC, electric utilities, suppliers, generators, distributors, and regional transmission entities it considers to be in the public interest. The stakeholder group also proposed that the Task Force recommend modifications in state administrative and regulatory procedures it determines appropriate to facilitate the approval of construction of new electric generation facilities. This suggestion ultimately served as the basis for Senate Joint Resolution 467. B. STUDY OF GENERATION SITING PROCEDURES - SENATE JOINT RESOLUTION 467 The Task Force recognizes that California's electricity woes are attributable in no small part to the lack of construction of new generation facilities. The stakeholder's group urged that steps be taken to streamline the procedures applicable to the construction of electricity generation facilities. An adequate supply of electricity is viewed as critical to the development of a competitive market for electric generation services. Though the stakeholder's group proposed that a study of these issues be codified in the Restructuring Act, the Task Force preferred that the issue be addressed by a joint resolution. Senate Joint Resolution 467 (Appendix P), introduced by Senator Norment, directs the Task Force to study procedures applicable to the construction of new electricity generation facilities in the Commonwealth. The Task Force is asked to recommend any amendments to the Commonwealth's administrative and regulatory procedures as may be appropriate to facilitate the approval of construction of sufficient electricity generation capacity to provide a competitive market for electricity in the Commonwealth as soon as practical, without lessening necessary environmental considerations including siting and air quality impacts. The Task Force is requested to report its findings and recommendations by November 30, 2001, to the Governor and the 2002 Session of the General Assembly. 32 C. CONSUMER ADVISORY BOARD LEGISLATIVE PACKAGE Chairman William Lukhard presented the Consumer Advisory Board's report to the Task Force at its December 13, 2000, meeting. Seven legislative proposals to implement the Board's recommendations were reviewed by the Task Force on January 5, 2001. 1. Income Tax Deduction for Contributions to Energy Assistance Programs The Board recommended a Virginia individual income tax deduction for contributions to a utility company emergency energy program. (Appendix Q) The deductions would apply where the utility company is an agent for a charitable organization that assists individuals with emergency energy needs. To be eligible, the contributions must be to an organization that qualifies for charitable contributions under § 170(C) of the Internal Revenue Code. Examples of eligible programs include the Energy Share and Neighbor-to-Neighbor programs. The deduction would be available only for taxpayers who do not take a deduction for the contributions on their federal tax return, because charitable contributions deducted on the taxpayer's federal return ultimately pass through to the state income tax return. The deduction would apply to taxable years beginning on or after January 1, 2002. The Task Force endorsed the recommendation. The proposal was introduced by Delegate Plum as House Bill 2469. The Department of Taxation's fiscal impact statement noted that while the revenue impact of the bill cannot be determined, it is likely to be fairly modest. The bill was passed by indefinitely in the House Finance Committee by a vote of 22-1. 2. Establishment of Low Income Energy Assistance Program Senate Joint Resolution 154 of the 2000 Session (Appendix R) was introduced with the endorsement of the Task Force. The resolution directed the Consumer Advisory Board to study low-income household energy and the programs in the Commonwealth. The Board was directed to address, among other things, whether Virginia should (i) establish a state policy with respect to the availability of affordable electricity and other sources of energy to all Virginias; (ii) create a new program assisting low-income households with a basic level of electric utility service; (iii) expand existing programs, or establish new programs, assisting low-income households with seasonal energy needs regardless of the energy source; (iv) consolidate existing public programs providing energy assistance for low-income households; (v) coordinate efforts of private, voluntary energy assistance programs with public programs and other private programs; (vi) provide incentives to encourage voluntary contributions to energy assistance programs, including the feasibility of tax credits as an incentive for energy consumers and suppliers to fund needed energy assistance programs for low-income households; (vii) address the likelihood of continued declines in federal funding for LIHEAP and the Weatherization Assistance Program; and (viii) use other funding sources, such as penalties or fees assisted on competitive energy providers, to pay for energy assistance programs for low-income households. Several of these issues were specifically addressed in the Consumer Advisory Board's recommendation that Virginia establish the Home Energy Assistance Program. (Appendix S) The measure designates the Department of Social Services as the state agency responsible for 33 coordinating state efforts regarding a policy to support the efforts of public agencies, private utility service providers, and charitable and community groups seeking to assist low-income Virginians in meeting their seasonal residential energy needs. The measure would also create the Home Energy Assistance Fund to be used to supplement DSS's administration of the LIHEAP Block Grant and to assist in maximizing the amount of federal funds available under LIHEAP and the Weatherization Assistance Program by providing funds to comply with fund matching requests. It would be funded through contributions under the Neighborhood Assistance Act, donations from individuals, and general fund appropriations. In administering the Home Energy Assistance Program, DSS would be required to: Coordinate the activities of state agencies, as well as any non-state programs that elect to participate, that are directed at alleviating the seasonal residential energy needs of low-income Virginians, including needs for weatherization assistance services; Provide a clearinghouse for information exchange regarding such residential energy needs for low-income Virginians, which clearinghouse will provide information regarding the extent to which the Commonwealth's efforts in assisting low-income households are adequate, are cost-effective, and are not duplicative of similar services provided by utility service providers, charitable organizations, and local governments; Collect and analyze data regarding the amounts of energy assistance provided, categorized by fuel type, and the extent to which there is unmet need for energy assistance in the Commonwealth; Track recipients of low-income energy assistance in Virginia based on data provided by program administrators; Develop and maintain a statewide list of available private and governmental resources for low-income Virginians in need of energy assistance; and Report annually on the effectiveness of low-income energy assistance programs in meeting the needs of low-income Virginians, which report shall also address the effect of the restructuring of the electric and gas industries on low-income energy assistance needs and programs. The proposal also authorized DSS to assume responsibility for administering all or any portion of any private, voluntary low-income fuel assistance program upon the application of the administrator thereof, on such terms as the Department and such administrator shall agree and in accordance with applicable law and regulations. The Board's proposal received the recommendation of the Task Force. Delegate Plum introduced House Bill 2473, which incorporated the proposal and other recommendations of the Board regarding funding the program through Neighborhood Assistance Act contributions and tax return check-offs. As the bill passed the General Assembly, the responsibilities of DSS in 34 administering the program were limited to administering distributions from the fund and reporting annually as to effectiveness of low-income energy assistance programs in meeting the needs of low-income Virginians. The proposed funding through income tax return check-offs and Neighborhood Assistance Act donations were also removed from the bill. 3. Neighborhood Assistance Act Tax Credits for Business Contributions to Program The Consumer Advisory Board recognized that the proposed programs for low-income assistance will cost money, and that designating a funding source that neither drained general fund revenues or increased the cost of electricity could be difficult. To avoid these pitfalls, the Board recommended that the new programs be funded in part through contributions from businesses by offering tax incentive under the Neighborhood Assistance Act (Appendix T). The proposal earmarked $1 million of the amount of tax credits under the program. Contributions would be eligible for a tax credit equal to 45 percent of the amount of their donations, with a maximum credit of $175,000, and a minimum credit of $400, per year. Contributions for energy assistance would be earmarked for the proposed Home Energy Assistance Fund. The Task Force recommended enactment of this proposal. The purposes of the proposal were incorporated into House Bill 2473, which established the Home Energy Assistance Program and Fund. The programs were removed from House Bill 2473 during the 2001 legislative session. 4. Income Tax Refund Check-Off for Voluntary Contributions to Home Energy Assistance Fund The Consumer Advisory Board proposed that the Home Energy Assistance Program be funded in part through voluntary contributions from individuals under an income tax refund check-off (Appendix U). The proposal, which tracks similar existing check-off provisions, allows persons entitled to a state tax refund, at the time the return is filed, to designate all or part of their refund amount to be paid into the Home Energy Assistance Fund to be used to assist low- income Virginias in meeting seasonal residential energy needs. The Task Force recommended the proposal, and it was incorporated into House Bill 2473 as introduced. The measure was removed from the bill in the House Finance Committee during the 2001 Session. 5. Definition of Renewable Energy The Consumer Advisory Board recommended that a definition of renewable energy be added to the Restructuring Act (Appendix V). Defining the term was viewed as a means of ensuring that its use in consumer education programs and marketing efforts would be uniform and consistent with approved goals. The proposal, which was based on Massachusetts legislation, defines renewable energy as energy that is derived from the sun or other natural processes and is replenishable by natural processes over relatively short time periods. The provision then identifies specific forms of energy as being included within the term "renewable energy." 35 An amendment was sought that would add energy derived from waste to the list of renewable energy sources. The Task Force then postponed making any recommendation on the proposal until its January 12, 2001, meeting. At that time, the Task Force enclosed the proposal with the "waste to energy" amendment, subject to any additional clarifications that may be needed in committee. Delegate Plum introduced the proposal in the 2001 Session as House Bill 2472. The bill was amended in the House Committee on Corporations, Insurance and Banking to delete the provision defining renewable energy as energy derived from the sun or natural process and replenishable by natural processes over a relatively short time period. The amended bill was approved by the General Assembly. 6. Marketing of "Green Power" The Consumer Advisory Board asked the Task Force to endorse proposed legislation that would authorize the SCC to establish criteria pursuant to which providers of electricity may designate certain electricity as "green power." (Appendix W) Though the proposal did not establish criteria for the green power designation, it directed the SCC to consider information on fuel mixes collected from generators. Suppliers who do not obtain the SCC's designation would be prohibited from labeling their product as "green" power. The proposal was intended to foster the market for electricity generated from environmentally-benign sources by establishing controls over its marketing. By assuring consumers that power labeled as "green" does in fact meets certain criteria, consumers would know that the claims of marketers purporting to sell less-polluting power would be verifiable. When the proposal came before the Task Force on January 5, 2001, Alden Hathaway of the Environmental Resources Trust objected to it on grounds that some national entities have established their own standards for marketing "green power." The Task Force postponed action on the proposal until its January 12 meeting. At that time the Board's proposal was endorsed by the Task Force, with assurance from Delegate Plum that he would work with interested parties to address their concerns about duplicate standards. Delegate Plum introduced the proposal as House Bill 2470. The SCC's fiscal impact statement noted that it may be virtually impossible to confirm that marketing information is valid. The bill was stricken at the patron's request in the House Committee on Corporations, Insurance and Banking. 7. Tax Credit for Investments in Solar Equipment The Consumer Advisory Board's seventh recommendation for legislation would establish individual and corporate income tax credits for the purpose and installation of equipment that either (i) generates electricity from solar energy or (ii) uses solar energy to heat or cool a structure or provide hot water. (Appendix X) The tax credit would equal 15 percent of the cost of purchasing and installing eligible equipment, up to $1000, which credit must be taken in the year it is installed and purchased. The equipment must provide at least 10 percent of the 36 building's energy needs, and be approved as eligible by the Department of Mines, Minerals and Energy. When the proposal was first heard by the Task Force, a fiscal impact statement had not been prepared. When the proposal came back before the Task Force on January 12, the Department of Taxation estimated that the proposal would reduce general fund revenues by about $200,000 annually. The Task Force discussed the proposal, but declined to take formal action on it. Delegate Plum introduced the proposal as House Bill 2474. The bill, as amended to sunset the credit in 2006, was approved by the House of Delegates but failed in the Senate Finance Committee. D. CLEAN AND EFFICIENT ENERGY TAX INCENTIVES Senator Mary Margaret Whipple presented a proposed package of tax incentives for clean and efficient energy at the Task Force's December 13, 2000, meeting. (Appendix Y) The incentives in her package consist of (i) a corporate income tax credit in an amount equal to 0.85 cents for each kilowatt of electricity produced from certain renewable energy resources (wind and biomass); (ii) an individual and corporate income tax credit for the costs of photovoltaic and solar water heating property; (iii) exemptions from the sales and use tax for certain appliances meeting federal Energy Star® efficiency requirements, and for heat pumps, air conditioners, and natural gas water heaters meeting specified performance measures; and (iv) a 50 percent reduction in the motor vehicle sales and use tax for purchasing or retrofitting motor vehicles that run on clean special fuels. The income tax credits would be effective in taxable year beginning on and after January 1, 2001. In the absence of information regarding the proposal's effect on the Commonwealth's tax revenues, the Task Force deferred action to January 5, 2001. The Tax Department reported at that time that it was not able to estimate the proposal's total revenue impact. It was estimated that the two income tax credits would cause a revenue decrease of $300,000 in fiscal years 2002 and 2003. The decrease in sales and use tax revenue attributable to the Energy Star® appliance exemption could be as high as $6 million in fiscal year 2002 and $6.8 million in fiscal year 2003. At the January 5, 2001 meeting, Steve Kalland of MD-DE-VA Solar Energy Industries Association offered alternative legislation for an income tax credit that borrowed elements of Senator Whipple's and the Consumer Advisory Board's solar equipment tax credits (Appendix Z). The Task Force took no action on Mr. Kalland's proposal. Based on its fiscal impact, Senator Whipple's bill was viewed by the Task Force as having little or no chance of passage in 2001. The members agreed to endorse the proposal in concept, amended by the addition of a provision extinguishing the measure in three years, and tempered with the observations that the current economic times are not receptive to such a proposal. In addition, the Task Force observed that the revenue committees of the General Assembly are the appropriate bodies to address its fiscal impact. Senator Whipple introduced the proposal as Senate Bill 792. The bill was not reported from the Senate Committee on Finance. 37 E. SELF-REGULATION BY DISTRIBUTION COOPERATIVES Former Senator Jackson Reasor, who chaired the joint subcommittee that crafted the Restructuring Act from 1996 through 1999, presented the Task Force on December 13, 2000, with a recommendation of the Virginia, Maryland and Delaware Association of Elective Cooperatives that would provide for the self-regulation of utility consumer services cooperatives. (Appendix AA) The proposal would authorize Virginia's consumer-owned, not-for-profit electric distribution cooperatives to elect self-regulation with respect to various aspects of financing transactions, terms and conditions, service and rates relating to the provision of electric service. Currently, the SCC regulates these activities. Such self-regulation may occur only following notice to the members and a subsequent affirmative vote of a supermajority of the members. Any cooperative whose members affirmatively choose to self-regulate may revert back to Commission regulation through a similar referendum process. Any cooperative whose membership chooses to impose self-regulation will still have an obligation to serve the public within its certificated service territory. Additionally, the capped rates for electric service and the default service provisions of the Restructuring Act will continue to apply to all electric cooperatives regardless of self-regulation status. The proposal was described as analogous to the existing self-regulation by telephone cooperatives. According to information provided to the Task Force, more than two-thirds of states allow for optional self-regulation by electric cooperatives (Appendix BB). After much discussion of the proposal's implications, action was deferred to the next meeting. At the January 5, 2001, meeting, Mark Tubbs, representing Virginia's electric cooperatives, reported that he had met with many stakeholders and that they were continuing to work on issues. A major concern was the relationship between self-regulated cooperatives and their affiliates. Bear Island Paper Company, a major consumer of one cooperative, expressed reservations about access to a complaint resolution process, and concerns that rates continue to be nondiscriminatory. Members viewed the proposal as a major policy shift in Virginia that required a more thorough examination than available time would permit. The Task Force concluded that it would not be prudent for the legislation to go forward at this time. At the January 12, 2001, meeting, it was reported that distribution cooperative self- regulation legislation would be introduced with the request it be referred to the Task Force for study. Delegate Kilgore introduced a re-written cooperative self-regulation proposal in the 2001 Session as House Bill 1940. The bill was passed by in the Corporations, Insurance and Banking Committee. The co-chairmen of the committee referred the proposal to the Task Force for possible consideration during 2001. F. CAPPED RATES FOR LOCAL GOVERNMENTS Section 56-582 of the Restructuring Act establishes capped rates, effective January 1, 2002, through July 1, 2007, for each service territory of every incumbent electric utility. However, the rates charged by electric utilities to its governmental customers historically have not been subject to SCC regulation. Howard Dobbins, representing local governments in AEP- Virginia's service territory, asked the Task Force at its January 5, 2001, meeting to amend the 38 Act to provide that the rates in effect on January 1, 2001, shall continue as capped rates through January 1, 2007 (Appendix CC). AEP representative Barry Thomas objected to the proposal on grounds that Mr. Dobbins' proposal was an attempt to lock in a short-term contact rate. The rates currently charged by the utility to its governmental customers have been set by negotiated contracts scheduled to expire July 2002. He observed that the parties have time to negotiate a new contract rate for power over the next year. The Task Force declined to endorse the proposal, noting that the Restructuring Act should not be used as a tool in price negotiations. Delegate Morgan Griffith introduced by request House Bill 2853, which would have enacted the local government capped rate proposal. The bill failed in the House Committee on Corporations, Insurance and Banking, though its co-chairs wrote to Senator Norment requesting that the Task Force study the issue presented by the bill prior to the 2002 Session. G. EXPANSION OF A MUNICIPAL UTILITY'S SERVICE AREA WITHIN ITS CITY Senator W. Roscoe Reynolds informed the Task Force of an issue arising in the City of Martinsville. The city operates a municipal electric utility within its boundaries, but a portion of the city had been served by AEP-Virginia. The utility and the municipality are willing to transfer the authority to provide electric service within that portion of the city to the municipality's utility. However, § 56-580 provides that a municipal electric utility may become subject to the Act if it directly or indirectly sells electric energy to any customer outside the geographic area that was served by the municipality on July 1, 1999. The members at the January 5, 2001, meeting unanimously agreed that the intent of subsection F of § 56-580 was to make municipal electric utilities subject to the Restructuring Act only if they expanded their service territory beyond their corporate boundaries. Accordingly, the Task Force endorsed a proposal presented by Senator Reynolds and Carter Glass (Appendix DD). Legislation implementing the proposal was introduced as Senate Bill 896 and House Bill 1935. Both measures were enacted by the 2001 Session of the General Assembly. H. INTERCONNECTION OF CERTIFICATED SERVICE TERRITORIES Mark Tubbs, representing Virginia's electric cooperatives, alerted the Task Force at the January 5, 2001, meeting to issues that arise when a distribution service area is transferred by an investor-owner electric utility to a cooperative. One area of concern involves which entity is to be the provider of default service for the transferred area. Another issue involves the capped rate to be applied in the transferred area. A proposal was circulated for review (Appendix EE). Mr. Tubbs noted that the parties were attempting to negotiate a compromise, and that many issues remain unresolved. Regardless of the outcome of the parties' negotiations, Mr. Tubbs noted that it may be an issue for the Task Force to take under advisement for future analysis. 39 I. ADJUSTMENTS TO PROJECTED MARKET PRICE FOR GENERATION Michel A. King of Old Mill Power appeared before the Task Force at its January 5, 2001, meeting, on behalf of the Virginia Reservable Energy Industry Association (VREIA). His proposal, a copy of which is attached as Appendix FF, would amend subsection A of § 56-583 to provide that the projected market price for generation shall be adjusted for any fuel costs recovered by the incumbent electric utility pursuant to § 56-249.6. Mr. King's proposal was intended to address an issue involving incumbent utilities that make off-system sales of their displaced generation into the open market. These sales allow utilities to recover the fuel costs associated with the sale of the displaced generation. Thus, according to Mr. King, the utilities are recovering the fuel costs associated with such off-system sales. He asserted that his proposal would prevent "double dipping" by utilities through stranded cost recovery mechanisms. The SCC's Bill Stephens advised the Task Force that the Restructuring Act allows the SCC to establish the market price for generation once per year. There will be times during the year when the actual market price part for the generation exceeds the annual average market price set by the SCC. If the projected market price set by the SCC were allowed to fluctuate with actual market price, as proposed by Mr. King, marketers seeking certainty may be deterred from entering Virginia's power market. Based on this information and the lack of any compelling reason to change the current law, the Task Force declined to support the VREIA's proposal. J. EMINENT DOMAIN AUTHORITY OF PUBLIC SERVICE CORPORATIONS Charles M. Guthridge, representing Tenaska Virginia Partners, L.P., requested the Task Force's support for a proposal amendment to § 56-579 of the Restructuring Act (Appendix GG). Subsection D of this section currently provides that on and after January 1, 2002, the right of eminent domain may not be exercised in conjunction with the construction or enlargement of any electric energy generation facility. Mr. Guthridge noted that the current language is subject to conflicting interpretations because it does not state what action triggers the exercise of the eminent domain right. It was proposed that the applicable language be re-written to prohibit the filing of a petition to exercise such right on or after January 1, 2002. The Task Force gave tacit approval to the proposal. Senator Norment introduced the proposal in the 2001 Session as Senate Bill 1257. The bill passed the General Assembly without a dissenting vote. K. OTHER PROPOSALS OFFERED BY SCC In addition to the four recommended amendments to the Restructuring Act offered by the SCC that were agreed to by the Task Force and incorporated into the omnibus legislation, the Task Force declined to recommend two proposals. 40 At the December 13, 2001 meeting of the Task Force, SCC staff raised the issue of the treatment of line extension credits. The staff suggested that it may be appropriate to clarify the effects of the Restructuring Act's capped rate provisions on line extension credits that are currently provided under utility tariffs for new residential and commercial customers. Currently, AEP, Virginia Power, Delmarva Power and the Southside, Rappahannock, and Old Dominion electric cooperatives have tariffs that provide new electricity customers credits against the cost of providing utility line extensions. The credits are calculated by multiplying the customer's likely annual revenue from fully bundled electric service to the company by a fixed number of years. (Appendix HH illustrates examples involving residential customers). The issue identified by the SCC staff is whether, when full competition begins, line extension credits should be calculated on the basis of revenue from bundled electric service, or solely on the basis of distribution service. This issue is likely to arise when a utility's new customers are eligible to shop for competitive suppliers on and after January 1, 2002. Utilities may contend that in applying line extension tariffs during the capped rate period, customer revenues should be calculated on the basis of distribution only (and not fully bundled service), since these new customers could shop for generation services. SCC staff offered two options for the Task Force's consideration. Under the first option, line extension credits would reflect all revenues, including revenues expected to be produced by capped generation rates. The second option would limit such credits to revenue expected to be produced by distribution rates only. (Appendix II). The Task Force decided to defer any action in this issue for the present time. The second proposal offered by the SCC staff addressed rate discounts by cooperatives during the capped rate period. The question raised was whether capped generation rates that are reduced by rate reduction riders filed after January 1, 2001, are to be treated thereafter as capped rates. At least one distribution cooperative that is a member of Old Dominion Electric Cooperative (ODEC) reportedly intends to file a rider to reduce its rates after January 1, 2001, pursuant to § 56-581. However, § 56-582 B does not allow the Commission to adjust capped rates for ODEC members except as to the recovery of fuel costs. The SCC asked whether during the capped rate period, cooperatives and other incumbent utilities can raise and lower their rate cap. SCC staff appeared before the Task Force on January 5, 2001, with proposed language that would address the issue (Appendix JJ). The proposed amendment to subsection B of § 56-582 would allow the SCC to adjust the capped rates of cooperatives that are members of ODEC in connection with discounts from capped rates to match the cost of providing distribution service. The Task Force declined to endorse the proposal. 41 IV. CONCLUSION The Legislative Transition Task Force recognizes that the successful implementation of the Restructuring Act is vitally important to all Virginians. One need only observe the ongoing crisis in California's electricity industry to conclude that the deregulation of electrical power generation can be risky. However, the members of the Task Force remain confident that critical differences between circumstances here and in California will allow Virginia to implement retail competition for electric generation services in a manner that can avoid disruptions. Some of the circumstances faced by California, including inclement weather, dependence on increasingly-expensive natural gas, transmission constraints, and the failure to construct adequate generation facilities, are not directly related to that state's electric utility restructuring legislation. However, a large share of California's woes has been attributable to features of its restructuring law. For example, the prohibitions on long-term power contracts and requirements that power be purchased on the daily spot market conducted by the state's independent system operator have been blamed in part for the surging prices of wholesale power. Virginia's Restructuring Act does not share these aspects of California's law that are being blamed for the explosion of wholesale power costs in that state. Moreover, Virginia's measured phasing-in of deregulation is intended to allow the SCC and the General Assembly to adjust the Restructuring Act in order to address matters that may not have been adequately covered by the original 1999 legislation. The General Assembly has acknowledged that the Restructuring Act is a dynamic template that can be fine-tuned to address evolving circumstances and issues raised during the course of the transition to competition. The measured march toward deregulation of electric generation has allowed power providers, regulators and other interested parties to alert the Task Force regarding issues in advance of the advent of restructuring. This process in turn is expected to allow the Commonwealth to avoid the problems that would have resulted from a hurried rush into deregulation. As this process evolves, the Task Force has attempted to fill the critical role of monitoring the Act's implementation and suggesting amendments to the full General Assembly. Over the past year, the Task Force has diligently worked with a broad spectrum of interests in crafting what it hopes is a viable compromise to the issues raised by the SCC's functional separation order of October 19, 2000. Due in part to the interrelationships affecting other aspects of the Restructuring Act, the bill also incorporates provisions addressing competition for metering services and billing services, durational requirements on customers who switch to competitive service providers in order to curb "gaming the system," and other matters. The members of the Task Force applaud the effort of members of the stakeholder group in crafting what all hope will be a workable solution to a difficult issue. The Task Force also appreciates the diligent efforts of the members of the Consumer Advisory Board over the past two years in developing recommendations addressing the critical issues of low-income energy assistance, renewable energy, and energy efficiency. 42 The Task Force looks forward to continuing its work in overseeing the effective implementation of the Restructuring Act during the coming year. Respectfully submitted, Senator Thomas K. Norment, Jr., Chairman Delegate Jerrauld C. Jones Delegate Terry G. Kilgore Delegate Harry J. Parrish Delegate Kenneth R. Plum Senator Richard L. Saslaw Senator Kenneth W. Stolle Delegate Robert Tata Senator John Watkins Delegate Clifton A. Woodrum, Vice Chairman of the Task Force, dissents from the report. His dissenting statement is attached. 43
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