SECOND REGULAR SESSION
HOUSE COMMITTEE SUBSTITUTE FOR
96TH GENERAL ASSEMBLY
4791L.02C D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 386.370, 393.135, and 620.010, RSMo, and to enact in lieu thereof five new sections relating to public utilities, with an emergency clause.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 386.370, 393.135, and 620.010, RSMo, are repealed and five new sections enacted in lieu thereof, to be known as sections 386.370, 386.715, 393.135, 620.010, and 1, to read as follows:
386.370. 1. The commission shall, prior to the beginning of each fiscal year beginning with the fiscal year commencing on July 1, 1947, make an estimate of the expenses to be incurred by it during such fiscal year reasonably attributable to the regulation of public utilities as provided in chapters 386, 392 and 393 and shall also separately estimate the amount of such expenses directly attributable to such regulation of each of the following groups of public utilities: Electrical corporations, gas corporations, water corporations, heating companies and telephone corporations, telegraph corporations, sewer corporations, and any other public utility as defined in section 386.020, as well as the amount of such expenses not directly attributable to any such group.
2. The commission shall allocate to each such group of public utilities the estimated expenses directly attributable to the regulation of such group and an amount equal to such proportion of the estimated expenses not directly attributable to any group as the gross intrastate operating revenues of such group during the preceding calendar year bears to the total gross intrastate operating revenues of all public utilities subject to the jurisdiction of the commission, as aforesaid, during such calendar year. The commission shall then assess the amount so allocated to each group of public utilities, subject to reduction as herein provided, to the public utilities in such group in proportion to their respective gross intrastate operating revenues during the preceding calendar year, except that the total amount so assessed to all such public utilities shall not exceed [one-fourth] twenty-three hundredths of one percent of the total gross intrastate operating revenues of all utilities subject to the jurisdiction of the commission.
3. The commission shall render a statement of such assessment to each such public utility on or before July first and the amount so assessed to each such public utility shall be paid by it to the director of revenue in full on or before July fifteenth next following the rendition of such statement, except that any such public utility may at its election pay such assessment in four equal installments not later than the following dates next following the rendition of said statement, to wit: July fifteenth, October fifteenth, January fifteenth and April fifteenth. The director of revenue shall remit such payments to the state treasurer.
4. The state treasurer shall credit such payments to a special fund, which is hereby created, to be known as "The Public Service Commission Fund", which fund, or its successor fund created pursuant to section 33.571, shall be devoted solely to the payment of expenditures actually incurred by the commission and attributable to the regulation of such public utilities subject to the jurisdiction of the commission, as aforesaid. Any amount remaining in such special fund or its successor fund at the end of any fiscal year shall not revert to the general revenue fund, but shall be applicable [by appropriation of the general assembly] to the payment of such expenditures of the commission in the succeeding fiscal year and shall be applied by the commission to the reduction of the amount to be assessed to such public utilities in such succeeding fiscal year, such reduction to be allocated to each group of public utilities in proportion to the respective gross intrastate operating revenues of the respective groups during the preceding calendar year.
5. In order to enable the commission to make the allocations and assessments herein provided for, each public utility subject to the jurisdiction of the commission as aforesaid shall file with the commission, within ten days after August 28, 1996, and thereafter on or before March thirty-first of each year, a statement under oath showing its gross intrastate operating revenues for the preceding calendar year, and if any public utility shall fail to file such statement within the time aforesaid the commission shall estimate such revenue which estimate shall be binding on such public utility for the purpose of this section.
386.715. 1. The public counsel shall, prior to the beginning of each fiscal year, make available to the commission an estimate of the expenses to be incurred by the public counsel during such fiscal year, reasonably attributable to his or her responsibilities under sections 386.700 and 386.710 and shall also separately estimate the amount of such expenses directly attributable to such responsibilities with respect to each of the following groups of public utilities: electrical corporations, gas corporations, water corporations, heating companies, telephone corporations, telegraph corporations, sewer corporations, and any other public utility as defined in section 386.020, as well as the amount of such expenses not directly attributable to any such group.
2. The public counsel shall allocate to each such group of public utilities the estimated expenses directly attributable to his or her responsibilities under sections 386.700 and 386.710 with respect to such group and an amount equal to such proportion of the estimated expenses not directly attributable to any group as the gross intrastate operating revenues of such group during the three preceding calendar years bears to the total gross intrastate operating revenues of all public utilities subject to the jurisdiction of the commission during such calendar years. The amount so allocated to telephone corporations, water corporations, and gas corporations shall not exceed three percent, eight percent, and fifteen percent, respectively, of the total estimated expenses directly attributable to the public counsel's responsibilities under sections 386.700 and 386.710 with any amounts in excess of those industry-specified percentages being then allocated to electrical corporations. The commission shall then assess, on behalf of the public counsel, the amount so allocated to each group of public utilities, subject to reduction as provided in this section, to the public utilities in such group in proportion to its respective gross intrastate operating revenues during the preceding calendar year. The amount assessed shall not exceed four hundredths of one percent. Nothing in this section shall authorize the commission to determine how the public counsel allocates the estimated expenses directly attributable to his or her responsibilities under sections 386.700 and 386.710 or how the assessment imposed under this section is spent by the public counsel.
3. On behalf of the public counsel, the commission shall render a statement of such assessment to each such public utility on or before July first and the amount so assessed to each such public utility shall be paid by it to the director of revenue in full on or before July fifteenth next following the rendition of such statement, except that any such public utility may at its election pay such assessment in four equal installments not later than the following dates next following the rendition of such statement, to wit: July fifteenth, October fifteenth, January fifteenth, and April fifteenth. The director of revenue shall remit such payments to the state treasurer.
4. The state treasurer shall credit such payments to a special fund, which is hereby created, to be known as "The Public Counsel Fund", which fund, or its successor fund created under section 33.571, shall be devoted solely to the payment of expenditures actually incurred by the public counsel and attributable to his or her responsibilities under sections 386.700 and 386.710. Any amount remaining in such special fund or its successor fund at the end of any fiscal year shall not revert to the general revenue fund, but shall be applicable to the payment of such expenditures of the public counsel in the succeeding fiscal year and shall be applied by the public counsel to the reduction of the amount to be assessed to such public utilities in such succeeding fiscal year, such reduction to be allocated to each group of public utilities in proportion to the respective gross intrastate operating revenues of the respective groups during the preceding calendar year.
5. In order to enable the public counsel to make the allocations and assessments provided for in this section, each public utility subject to the jurisdiction of the commission shall file with the commission on or before March thirty-first of each year, a statement under oath showing its gross intrastate operating revenues for the preceding calendar year, and if any public utility shall fail to file such statement within the time established in this subsection, the commission shall estimate such revenue. Such estimate shall be binding on such public utility for the purpose of this section.
393.135. 1. Any charge made or demanded by an electrical corporation for service, or in connection therewith, which is based on the costs of construction in progress upon any existing or new facility of the electrical corporation, or any other cost associated with owning, operating, maintaining, or financing any property before it is fully operational and used for service, is unjust and unreasonable, and is prohibited.
2. Notwithstanding the provisions of subsection 1 of this section, whenever an electrical corporation obtains an early site permit granted by the United States Nuclear Regulatory Commission or a successor organization, the commission shall allow recovery of the electrical corporation's cost of obtaining the early site permit in the manner provided for in subsection 3 of this section, for the prudently incurred costs directly incurred by the electrical corporation to apply for and obtain such permit. The electrical corporation shall take reasonable steps to minimize the cost of applying for and obtaining such permit.
3. Notwithstanding the provisions of subsection 1 of this section, an electrical corporation that has obtained an early site permit shall be entitled to recover through rates charged to ratepayers all costs the electrical corporation has prudently incurred directly related to applying for and obtaining the early site permit, from the first dollar through the cap outlined below, in an amount not to exceed forty-five million dollars for such site permit. The forty-five million dollar cost cap applicable to electrical corporations shall be reduced by the amount of funding provided to the electrical corporation toward its costs of applying for and obtaining the early site permit from other sources, including but not limited to rural electric cooperatives or their organizations and municipal electric utilities or their organizations. Any electrical corporation that, as part of a partnership or other group formed for such purpose, contributes or otherwise bears any portion of the costs incurred to obtain an early site permit shall also be entitled to recover its share of such costs. The electrical corporation's costs of applying for and obtaining the early site permit, plus interest on the unrecovered balance at a rate per annum equal to the applicable electrical corporation's short-term borrowing rate, shall be recovered through each applicable electrical corporation's rates charged to its ratepayers ratably over a period not to exceed six years. Such rate recovery shall commence with the effective date of tariffs approved by the commission in each applicable electrical corporation's first general rate proceeding filed after the date on which the early site permit is obtained and the Nuclear Regulatory Commission's grant of the early site permit is final and unappealable. Recovery shall be allowed only for expenditures directly incurred by the electrical corporation to apply for and obtain such permit that the commission has found to be prudent and reasonable in the general rate case where recovery is sought, plus interest on the unrecovered balance as aforesaid. The recovery provided for in this section shall only apply to the electrical corporation's prudently incurred expenditures directly incurred by the electrical corporation to apply for and obtain such permit plus interest on the unrecovered balance as aforesaid and shall not serve as precedent for the commission to allow similar recovery of other types of costs. The electrical corporation shall have the burden of proof regarding the prudence of those early site permit costs about which a reasonable doubt is created by a party to such general rate case. Any party who challenges the prudence of the decision to apply for and obtain the early site permit shall bear the burden of proof regarding any allegation that the decision to apply for and obtain such permit was imprudent.
4. Nothing in this section shall be construed to imply that any commission decision that the early site permit costs were prudently incurred implies a determination of the prudence of the electrical corporation's decision to commence construction of a nuclear plant.
5. If an electrical corporation has recovered from ratepayers expenditures for an early site permit pursuant to subsection 3 of this section and then subsequently sells or transfers some or all of its interest in the early site permit or subsequently receives reimbursement or other proceeds for all or part of its costs from another source, the commission shall return such proceeds to ratepayers with interest to the extent such expenditures have been recovered in rates. If the amount of such proceeds exceeds the amount paid by customers the commission may in its discretion award up to twenty-five percent of such excess proceeds to the electrical corporation.
6. There is hereby established the "Governor's Task Force on Electrical Generation Options". The task force shall review evidence regarding generation options, including nuclear power options other than a traditional large baseload nuclear plant, including evidence regarding system benefits, rate impact, and financing options. The task force shall issue a report on or before September 30, 2012. The governor shall appoint members on the task force, which shall include an equal number of representatives of each of the following: the commission, the public counsel, industrial consumers, residential consumers, commercial consumers, small investor-owned utilities, large investor-owned utilities, rural electric cooperatives, and municipal utilities.
620.010. 1. There is hereby created a "Department of Economic Development" to be headed by a director appointed by the governor, by and with the advice and consent of the senate. All of the general provisions, definitions and powers enumerated in section 1 of the Omnibus State Reorganization Act of 1974 shall continue to apply to this department and its divisions, agencies and personnel.
2. The powers, duties and functions vested in the public service commission, chapters 386, 387, 388, 389, 390, 392, 393, and others, and the administrative hearing commission, sections 621.015 to 621.198 and others, are transferred by type III transfers to the department of economic development. The director of the department is directed to provide and coordinate staff and equipment services to these agencies in the interest of facilitating the work of the bodies and achieving optimum efficiency in staff services common to all the bodies. Nothing in the Reorganization Act of 1974 shall prevent the chairman of the public service commission from presenting additional budget requests or from explaining or clarifying its budget requests to the governor or general assembly.
3. The powers, duties and functions vested in the office of the public counsel are transferred by type III transfer to the department of economic development. [Funding for the general counsel's office shall be by general revenue.]
4. The public service commission is authorized to employ such staff as it deems necessary for the functions performed by the general counsel other than those powers, duties and functions relating to representation of the public before the public service commission.
5. All the powers, duties and functions vested in the tourism commission, chapter 258 and others, are transferred to the "Division of Tourism", which is hereby created, by type III transfer.
6. All the powers, duties and functions of the department of community affairs, chapter 251 and others, not otherwise assigned, are transferred by type I transfer to the department of economic development, and the department of community affairs is abolished. The director of the department of economic development may assume all the duties of the director of community affairs or may establish within the department such subunits and advisory committees as may be required to administer the programs so transferred. The director of the department shall appoint all members of such committees and heads of subunits.
7. The state council on the arts, chapter 185 and others, is transferred by type II transfer to the department of economic development, and the members of the council shall be appointed by the director of the department.
8. The Missouri housing development commission, chapter 215, is assigned to the department of economic development, but shall remain a governmental instrumentality of the state of Missouri and shall constitute a body corporate and politic.
9. All the authority, powers, duties, functions, records, personnel, property, matters pending and other pertinent vestiges of the division of manpower planning of the department of social services are transferred by a type I transfer to the "Division of Job Development and Training", which is hereby created, within the department of economic development. The division of manpower planning within the department of social services is abolished. The provisions of section 1 of the Omnibus State Reorganization Act of 1974, Appendix B, relating to the manner and procedures for transfers of state agencies shall apply to the transfers provided in this section.
10. Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2008, shall be invalid and void.
Section 1. If any section, subsection, subdivision, paragraph, sentence, or clause of sections 386.370, 386.715, or 393.135 is held to be invalid or unconstitutional, such decision shall not affect any remaining portion, section, or part thereof which can be given effect without the invalid provision.
Section B. Because immediate action is necessary to ensure adequate funding for public representation in matters related to public utilities and to ensure sufficient and affordable energy provision to citizens of the state, this act is deemed necessary for the immediate preservation of the public health, welfare, peace, and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and this act shall be in full force and effect upon its passage and approval.
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