GA Code § 46-2-26.3 (2021)
2021 Georgia Code|Title 46 - Public Utilities and Public Transportation|Chapter 2 - Public Service Commission|Article 2 - Jurisdiction, Powers, and Duties Generally|§ 46-2-26.3. Recovery of Costs of Conversion From Oil-Burning to Coal-Burning Generating Facility; Filing of Request; Public Hearing; Determination of Rate; Adjustments

  A utility regulated by the Public Service Commission which has 25 percent or more of its total generating capacity as oil-fired generation and operates any electric generating facility which was in the process of being converted on January 1, 1982, and which will be converted and in commercial operation as a coal-fired facility on or before December 31, 1982, after conversion from oil to coal-fired operation may file with the commission an application to determine the appropriate rate to recover the cost of conversion and to demonstrate the fuel cost savings resulting from said conversion.   For the purposes of this Code section, the following words or terms shall have the following meanings:   "Coal" shall mean coal used as a primary energy source.   "Commission" shall mean the Georgia Public Service Commission.     "Cost of conversion" shall mean costs as determined by the commission to be reasonable and necessary for the conversion of an oil-burning electric generating facility to the burning of coal. Such costs shall include, but not be limited to, engineering, administrative, and legal costs, the cost of environmental studies and control equipment, coal-handling and storage equipment, including rail facilities, equipment and facilities necessary to permit the combustion of coal, the cost of retrofitting or refurbishing boilers to permit the combustion of coal, the cost of on-site and off-site facilities for handling, storing, and disposing of wastes resulting from the combustion of coal, and the cost of all other facilities reasonable and necessary to allow the conversion of an oil-burning electric generating facility to burn coal. Such costs shall also include the reasonable cost of capital for such conversion and for carrying the cost of such conversion until such costs are recovered as provided in this Code section. In no case shall cost of conversion include any costs incurred pursuant to an expansion of an electric generating facility's generating capacity above the generating capacity of said facility that existed prior to the conversion from oil to coal.   "Cost of conversion" shall not include the amount financed by the company through tax-exempt pollution control bonds, if any, of any portion of the project certified by the Environmental Protection Division of the Department of Natural Resources, or other agency vested with similar authority, to be a pollution control facility and therefore eligible for financing under Section 103 of the Internal Revenue Code and the regulations thereunder or other similar law or regulation now or hereafter adopted.     "Fuel cost savings" shall mean the amount of fuel savings to be obtained by operating the facility converted from oil to coal-fired operation during the facility's first full 12 months of operation using coal as its primary fuel as compared to the operation of such facility on oil, had it been so operated, during the same 12 month period.   "Utility" shall mean any retail supplier of electricity subject to the rate-making jurisdiction of the commission.     Any utility meeting the qualifications under subsection (a) of this Code section may file with the commission a request to establish an appropriate adjustment in its rates and charges in order to recover the costs of conversion of an oil-burning generating facility to coal-fired operation as provided herein. After receipt of such filing, the commission shall hold a public hearing to determine the cost of conversion of the generating facility and the fuel cost savings anticipated. Unless it is determined by the commission that the cost of conversion will be less than the projected fuel cost savings accruing to retail customers over the remaining life of the generating facility, no further action shall be taken by the commission. Upon making such determination that the fuel cost savings exceed the cost of conversion, the commission shall then determine the appropriate rate to recover the cost of conversion as provided in subsection (d) of this Code section.   In determining the appropriate rate, the commission shall consider the cost of conversion, and an appropriate period of time, but not more than seven years, to amortize such cost. The appropriate rate shall be an amount which is not less than the amount necessary to amortize the cost of conversion, as herein defined over a period of not more than seven years on a per kilowatt-hour basis taking into consideration the estimated kilowatt hours to be generated for sale by the utility during the first full 12 months in operation of the facility. In determining the rate to recover the cost of conversion, the commission shall permit recovery by the utility of the cost of conversion net of such federal, state, or local taxes based on revenue and income which may be imposed upon the utility for receipt of proceeds of the fuel-savings-allocation which cannot be reasonably avoided by the utility using due diligence. All revenues derived through the rate herein provided shall be applied solely to the cost of conversion of said facility.   The utility shall compute, record, and report to the commission monthly the amount collected under any rate herein authorized and the amount applied to the cost of conversion and the balance remaining to be recovered.   Upon recovery by the utility of the cost of conversion as herein provided, the utility shall no longer charge any rate authorized to recover the cost of conversion. Upon such termination, the utility shall file a report with the commission within 30 days, sworn to by an officer of the utility, that its fuel-savings-allocation revenues are in compliance with all commission orders issued pursuant to this Code section. In the event such revenue is lesser or greater than the utility's cost of conversion, the commission shall make such determinations and issue such orders as are necessary to result in the full recovery, but no more, of the cost of conversion.   In the event the utility should become entitled, by reason of the conversion, to any federal or state grant and receive same, the commission shall make such determinations and issue such orders as are necessary to reduce the amount of conversion costs which the utility would otherwise recover by means of the rate provided herein. If such grant is received after termination of such adjustment, the utility shall promptly report such receipt and the commission shall make such determinations and issue such orders as are necessary to result in the utility receiving no more than the cost of conversion after taking into account such grant.   Once the utility charges the rate to recover the cost of conversion, the commission shall not recognize for rate-making purposes any costs of conversion which are recovered by the utility through the rate provided herein.   At any hearing or any proceeding under this Code section formal intervention by customers of the utility shall be permitted. All commission orders issued pursuant to this Code section shall be rendered within 180 days from the date of any filing or the institution of any proceeding hereunder and shall contain, unless waived by all parties, the commission's findings of fact and conclusions of law upon which the commission's action is based. Such order shall be deemed a final order subject to judicial review under Chapter 13 of Title 50, known as the "Georgia Administrative Procedure Act."   Any recovery of costs of conversion provided or allowed hereunder shall not affect the recovery of fuel costs provided in Code Section 46-2-26.     (Code 1933, § 93-307.5, enacted by Ga. L. 1982, p. 412, § 1; Code 1981, §46-2-26.3, enacted by Ga. L. 1982, p. 412, § 2; Ga. L. 1983, p. 3, § 35; Ga. L. 1984, p. 22, § 46; Ga. L. 1987, p. 191, § 9; Ga. L. 1989, p. 14, § 46; Ga. L. 1992, p. 6, § 46; Ga. L. 2014, p. 866, § 46/SB 340; Ga. L. 2015, p. 1088, § 36/SB 148.)    The 2014 amendment,  effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, deleted the extra subsection (b) designation preceding subparagraph (3)(A).    The 2015 amendment,  effective July 1, 2015, in subsection (f), deleted "and the consumers' utility counsel" following "file a report with the commission" near the beginning of the second sentence.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1988, "consumers' utility counsel" was substituted for "Consumers' Utility Counsel" in subsection (f).   Editor's notes.   - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.   Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.   Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.   Ga. L. 2015, p. 1088, § 36/SB 148, effective July 1, 2015, purported to revise this Code section but only amended subsection (f).   JUDICIAL DECISIONS   Constitutionality.    - O.C.G.A. § 46-2-26.3 is not unconstitutional as a special law for which provision has been made by existing general law because O.C.G.A. § 46-2-23 does not divest the General Assembly of its power to regulate public utilities. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227, 319 S.E.2d 824 (1984).    O.C.G.A. § 46-2-26.3 does not create an unconstitutional classification although its application is in fact limited to only one plant, because it is possible to conclude that O.C.G.A. § 46-2-26.3 does not confer a special benefit upon the utility. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227, 319 S.E.2d 824 (1984).