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RULE §25.303Nuclear Decommissioning Following the Transfer of Texas Jurisdictional Nuclear Generating Plant Assets

        (I) The commingled funds should be selected consistent with the goals specified in paragraph (1) and the requirements in paragraph (2) of this subsection.

        (II) In evaluating the appropriateness of a particular commingled fund, the fund administrator has the following duties, which shall be of a continuing nature:

          (-a-) A duty to determine whether the fund manager's fee schedule for managing the fund is reasonable, when compared to fee schedules of other such managers;

          (-b-) A duty to investigate and determine whether the past performance of the investment manager in managing the commingled fund has been reasonable relative to prudent investment and utility decommissioning trust practices and standards; and

          (-c-) A duty to investigate the reasonableness of the net after-tax return and risk of the fund relative to similar funds, and the appropriateness of the fund within the entire decommissioning trust investment portfolio.

        (III) The payment of load fees shall be avoided.

        (IV) Commingled funds focused on specific market sectors or concentrated in a few holdings shall be used only as necessary to balance the trust's overall investment portfolio mix.

(f) Periodic Reviews of Decommissioning Costs and Nuclear Decommissioning Trust Funds.

  (1) Following a transfer of Texas jurisdictional nuclear generating plant assets, including the associated Nuclear Decommissioning Trust Funds, any remaining costs associated with nuclear decommissioning obligations shall remain subject to cost-of-service regulation based on a periodic review of such costs pursuant to subsections (f)(3) or (g)(4) of this section. The reasonable and necessary nuclear decommissioning costs as periodically approved by the commission shall continue to be included as a nonbypassable charge of the Collecting Utility associated with the Texas jurisdictional nuclear plant asset. Subsection (g) of this section shall apply to such charges by a Collecting Utility.

  (2) The Transferee Company shall periodically perform, or cause to be performed, a study of the decommissioning costs of each Texas jurisdictional nuclear generating unit it owns or in which it leases an interest. A study or re-determination of the previous study shall be performed at least every five years, starting from the date of the most recent decommissioning cost study for the plant on file with the commission. The study or re-determination shall consider the most current and reasonably available information on the cost of decommissioning. A copy of the study or re-determination along with an updated funding analysis shall be filed with the commission and copies provided to the commission's Financial Review Division and the Office of Public Utility Counsel. The funding analysis shall be based on the most current information reasonably available for the cost of decommissioning, an allowance for contingencies of 10% of the cost of decommissioning, the balance of funds in the decommissioning trusts, anticipated escalation rates, the anticipated after-tax return on the funds in the trust, and other relevant factors. The funding analysis shall be accompanied by a description of the assumptions used in the analysis and shall calculate the required annual funding amount necessary to ensure sufficient funds to decommission the nuclear generating plant at the end of its useful life.

  (3) The commission, on its own motion or on the motion of the Legal and Enforcement Division, the Office of Public Utility Counsel, or any affected person, may initiate a proceeding to review the Transferee Company's trust balances, compliance with this section, or the annual funding amount. The Transferee Company shall provide any information required to conduct the review upon request in accordance with the commission's procedural rules.

  (4) During each periodic review of decommissioning costs, the following evidence shall be provided:

    (A) The Transferee Company shall file the periodic cost study described in paragraph (2) of this subsection, along with an updated decommissioning funding analysis described in paragraph (2) of this subsection, within 90 days of completion of the periodic cost study. The cost study and funding analysis shall be accompanied by a report or testimony supporting the analyses and the requested annual funding amount.

    (B) The Nuclear Decommissioning Trust Funds administrator shall demonstrate that the decommissioning funds are being invested prudently and in compliance with the investment guidelines in subsection (e) of this section.

    (C) To the extent the Transferee Company is subject to investment restrictions that are more restrictive than the decommissioning investment guidelines in subsection (e) of this section, the Transferee Company (or the funds administrator and the Transferee Company, if different) shall demonstrate their efforts to obtain relief from such investment restrictions in order to permit investments in accordance with the guidelines in subsection (e) of this section.

    (D) The Transferee Company (or the funds administrator and the Transferee Company, if different) shall demonstrate efforts to achieve optimum tax efficiency as defined in subsection (e)(3)(B)(iii) of this section, including, as applicable, maintenance of tax-exempt status or efforts to achieve "qualified" status in accordance with Internal Revenue Code §468A (or any successor thereto) with respect to its taxable nuclear decommissioning trust funds.

  (5) Within 90 days after completion of decommissioning the nuclear generating plant, the Transferee Company shall file a request for a final reconciliation proceeding at the commission. Any funds remaining in the trust after the completion of decommissioning shall be refunded to customers in a manner determined by the commission. If the reasonable and necessary costs of decommissioning exceed the amount available in the trust, the excess costs will be recovered through a nonbypassable charge approved by the commission if the Transferee Company has substantially complied with this section and prudently managed the decommissioning process.

  (6) The Transferee Company shall file an annual report on May 15 of each year to report the status of the decommissioning trust fund using a form approved by the commission.

  (7) The Collecting Utility, as part of its annual earnings report, shall report the amounts and dates of the deposits into the Nuclear Decommissioning Trust Funds and, if different, the revenues received from customers for the time intervals corresponding to each deposit.

(g) Collecting Utility rate proceedings for decommissioning charges.

  (1) A Collecting Utility that has decommissioning expenses embedded as part of a bundled rate shall apply to have its current level of decommissioning funding removed from its general rates and stated as a separate nonbypassable charge.

    (A) In the case of a transfer of Texas jurisdictional nuclear generating plant assets to a non-affiliated entity, the request shall be made no later than 30 days following the closing of the transaction. The nonbypassable charge shall be based on the funding level and the rate class allocation methodology as approved in the Collecting Utility's last general rate proceeding. Such proceeding to remove the decommissioning charge from the Collecting Utility's general rates and state it as a separate nonbypassable charge will not constitute a general rate case.

    (B) In the case of a transfer of Texas jurisdictional nuclear generating plant assets to an affiliated power-generating company, the request for a separate nonbypassable charge shall be made during the first general rate case following the transfer.

  (2) The Collecting Utility shall deposit the decommissioning revenues into the Nuclear Decommissioning Trust Funds consistent with the terms of the decommissioning funds collection agreement on file with the commission and the most recent commission order authorizing decommissioning collections from customers.

    (A) The commission may on its own motion or on the motion of the Legal and Enforcement Division, the Office of Public Utility Counsel or any other affected person, initiate a proceeding to discontinue the deposit of decommissioning revenues to the Nuclear Decommissioning Trust Funds if the Transferee Company substantially or repeatedly fails to comply with any provision of this section.

    (B) If levelized deposits are made into the fund, the following provisions apply.

      (i) The Collecting Utility shall keep records of its daily receipts from customers once a separate nonbypassable charge is set by the commission.

      (ii) Once the Collecting Utility has implemented a separate nonbypassable charge, it shall request an adjustment in the nonbypassable charge if there is, and is projected to continue to be, a material cumulative over- or under-collection of revenues, including interest, greater than or equal to 15% of the most recent annual nuclear decommissioning funding amount approved by the commission. The request shall be based on the difference between the actual cumulative decommissioning charge revenues collected from customers and the cumulative amount authorized to be collected since the last rate adjustment, including interest calculated in accordance with §25.236(e)(1) of this title (relating to Recovery of Fuel Costs). The calculated over- or under-recovery amount will be applied to the commission-authorized annual amount to determine the required nonbypassable charge.

    (C) If deposits to the nuclear decommissioning trust funds are less frequent than weekly, an implied interest calculation shall be used in setting the decommissioning charge to account for the Collecting Utility's short term use of the funds.

  (3) Upon the issuance of a commission order under subsection (f)(3) or (g)(4) of this section in which the commission determines that the annual funding amount required for nuclear decommissioning for a particular plant has increased or decreased and should be adjusted, the Collecting Utility shall file a rate application within 45 days solely to adjust the nonbypassable charge. The filing shall provide sales data, a proposed allocation methodology, a proposed tariff, and any other information necessary to implement the commission's order. The commission will issue a final order within 120 days of receipt of the filing. Such rate proceeding will be conducted separately from the Collecting Utility's general rate proceedings.

  (4) The Transferee Company may elect to request a change in the decommissioning funding level during a general rate case of the Collecting Utility. The Collecting Utility shall give the Transferee Company at least 90 days' notice of an anticipated rate application for its general rates to allow the Transferee Company to prepare a funding analysis to be filed jointly with the Collecting Utility's application.

(h) Good cause exception. Upon a showing of good cause, an applicant under this section may request that the commission waive or grant an exception to any requirement of this section.

Source Note: The provisions of this §25.303 adopted to be effective October 26, 2004, 29 TexReg 9835

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