DECISION 2016 NSUARB 216 M07611

NOVA SCOTIA UTILITY AND REVIEW BOARD

IN THE MATTER OF THE PUBLIC UTILITIES ACT

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IN THE MATTER OF a hearing into NOVA SCOTIA POWER INCORPORATED’S Fuel Adjustment Mechanism (“FAM”) Audit for the years 2014 and 2015

BEFORE: Peter W. Gurnham, Q.C., ChairRoland A. Deveau, Q.C., Vice Chair Steven M. Murphy, MBA, P.Eng., Member

COUNSEL: NOVA SCOTIA POWER INCORPORATEDBrian Curry, LL.B.Colin J. Clarke, Q.C.

CONSUMER ADVOCATEJohn Merrick, Q.C.

INDUSTRIAL GROUPNancy G. Rubin, Q.C.

PORT HAWKESBURY PAPER LPJames MacDuff, LL.B.

SMALL BUSINESS ADVOCATEE.A. Nelson Blackburn, Q.C.Melissa MacAdam, LL.B.

BOARD COUNSEL: S. Bruce Outhouse, Q.C.

HEARING DATE: December 5, 2016

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DECISION DATE:

DECISION:

December 21, 2016

Settlement Agreement approved by the Board. Three million dollar credit returned to ratepayers through the AA/BA proceeding.

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1.0 INTRODUCTION

[1] This Decision is further to a public hearing conducted by the Nova Scotia

Utility and Review Board (“Board”) on December 5, 2016, in the matter of an audit of the

fuel adjustment mechanism (“FAM”) respecting Nova Scotia Power Incorporated (“NSPI”,

“Company”, “Utility”) for the years 2014 and 2015.

[2] Consistent with the Plan of Administration (“POA”) for NSPI's FAM, The

Liberty Consulting Group (“Liberty”) was engaged to do a comprehensive audit with

respect to the FAM for the period covering the years 2014 and 2015 (“FAM Audit”). The

POA provides that an audit of the FAM will be done every second year.

[3] The Public Utilities Act, R.S.N.S. 1989, c. 380, as amended {‘‘Act’), gives

the Board broad regulatory oversight over public utilities and provides it with the authority

to discharge its regulatory responsibilities.

[4] Seven Intervenors applied for formal standing. A number of these parties

were represented at the hearing by counsel. The Small Business Advocate (“SBA”); the

Consumer Advocate (“CA”); the Industrial Group, whose counsel represented 12

Intervenors; and Port Hawkesbury Paper LP (“PHP”) all participated in the hearing.

[5] The FAM has generally been described as a mechanism that allows

periodic adjustments to customer rates, outside general rate proceedings, to reflect

increases and decreases in the Utility’s cost of fuel, provided they are prudently incurred.

[6] In its Rate Decision dated February 5, 2007, the Board identified at least

four prerequisites prior to the implementation of a FAM:

[45] For the guidance of the parties, however, and without in any way prejudging the issue, in the Board’s view there are several prerequisites that must be in place in order for the Board to consider the adoption of a FAM now or in the future:

1. an adequate and appropriate fuel procurement policy at NSPI in which the Board has confidence;

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2. timely disclosure of complete and adequate information by NSPI so as to ensure confidence that the procurement policy is being appropriately administered;

3. disclosure and transparency with respect to the administration of the FAM;

4. a meaningful audit process under the administration of the Board.

[46] This list is not meant to be exhaustive. [Emphasis added]

[2007 NSUARB 8, paras. 45-46]

[7] In its general rate application (“GRA”) Decision dated November 5, 2008,

the Board approved the FAM to take effect on January 1, 2009, conditional on the final

approval of the Tariff and POA. A revised FAM Tariff and POA were received on

November 26, 2008, and approved by the Board in a letter dated December 11, 2008.

The current version of the POA was approved by Order issued February 17, 2015, with

amendments to Appendix B accepted on June 17, 2015.

[8] Section 5 of the POA addresses the audit requirements, and excerpts are

included below:

5.0 AUDIT AND OVERSIGHT

The amounts charged through the FAM shall be subject to periodic audit to assure completeness and accuracy and to assure fuel and purchased power costs were incurred reasonably and prudently. The results of any audit shall form part of the issues for consideration by the Board in a subsequent FAM proceeding to consider the re-setting of the Base Cost of Fuel, or setting of the Fuel Adjustment Factor, or a General Rate Case at the request of NSPI or any interested stakeholder or upon Board order. Following consideration of the audit in any such hearing, the Board may make such adjustments (with interest if appropriate) to existing balances or to already recovered amounts as it may find necessary.

Audit Process

The Board shall provide for the conduct of a Fuel Adjustment Mechanism (FAM) audit every second year. The Board shall have a qualified independent firm conduct the audit. The audit will address the financial and management/performance aspects of NSPI’s fuel procurement and recovery under the FAM. The audit will include the FAM Formula, actual fuel and purchased power costs, contracts and management performance that affect the audit period from January 1, 20XX to December 31, 20XX+1. The first audit period will be for the year 2009. Subsequent audits will cover two-year periods.

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Objectives and Scope of the Audit

The overall objective of the FAM audit will be to examine operational and managerial aspects of the fuel and energy procurement, management, and production functions and activities of NSPI, including any fuel or energy related affiliate transactions that involve these functions and activities directly or indirectly. The review will address adherence to good utility practice and consistency with the policies and procedures governing NSPi’s procurement as described in the NSPi Fuel Manual.

The Scope of the Audit will include a review of fuel and energy procurement, fuel management, and generation production ...

Prior to setting the final audit scope, the auditor shall meet with NSPI and interested stakeholders.

Timing of the Audit

The first audit will commence on February 1, 2010, and subsequent audits are expected to commence in February of every second year. The final report for the first audit will be filed with the Board and Stakeholders by July 2, 2010. Final reports for subsequent audits will be filed by July 2 of every second year. The final report will evolve from a draft report which is provided to NSPI and the Board within 30 days of the filing of the final report. The draft report should contain functional area task reports, a management summary, and include findings of operating effectiveness and efficiency, as well as any recommendations for adjustments in costs or changes in functions and activities.

[FAM POA, February 17, 2015, pp. 14-16]

[9] The first FAM Audit was conducted in 2010 and covered the 2009 calendar

year. The second FAM Audit was conducted in 2012 and covered the calendar years of

2010 and 2011, while the next FAM Audit was conducted in 2014 for the years 2012 and

2013 [see M06290, 2015 NSUARB 9],

[10] For the current audit period, the Liberty FAM Audit Report was filed August

12, 2016, with a Supplementary Report filed September 15, 2016. It presented Liberty’s

findings, conclusions, and recommendations for 2014 and 2015.

[11] NSPI filed its Reply Evidence on September 23, 2016.

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2.0 PRUDENCY TEST

[12] In 2005 NSUARB 27, the Board adopted the definition of prudence as set

out in a decision of the Illinois Commerce Commission as a reasonable test to be applied

in Nova Scotia.

[13] That test was set out at paragraph 84 of the Board’s Decision:

The standard for determining prudency of a utility’s fuel procurement practices is well established. As stated by the Illinois Commerce Commission, "prudence is that standard of care which a reasonable person would be expected to exercise under the same circumstances encountered by utility management at the time decisions had to be made....Hindsight is not applied in assessing prudence....A utility’s decision is prudent if it was within the range of decisions reasonable persons might have made.... The prudence standard recognizes that reasonable persons can have honest differences of opinion without one or the other necessarily being imprudent.

[2005 NSUARB 27, para. 84]

[14] The Board went on to say:

[89] While the Board recognizes that the definition of imprudence varies somewhat among the jurisdictions cited, there are several fundamental principles which are common.These include:

• Were the utility’s decisions reasonable in the context of information which was known (or should have been known) at the time?

• Did the utility act in a reasonable manner and use a reasonable standard of care in its decision-making process?

• The imprudency test should relate to the circumstances at the time in question and not to hindsight.

[2005 NSUARB 27, para. 89]

3.0 SETTLEMENT AGREEMENT

[15] The Board notes that this FAM Audit identified only one potential area of

disallowance recommended by Liberty, that being the remaining impact from NSPI’s

failure to take an assignment of two natural gas contracts from NewPage Port

Hawkesbury. Liberty found most of NSPI’s fuel procurement activities to be appropriate.

NSPI accepted 25 of the 31 recommendations from Liberty.

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[16] Prior to the hearing, NSPI, the CA, SBA and the Industrial Group reached

agreement on a resolution of the outstanding issues and concluded a Settlement

Agreement, which was filed with the Board on December 2, 2016.

3.1 The Board’s approach to settlement agreements

[17] In its previous Decisions, the Board has set out the principles it applies in

its consideration of settlement agreements. Those principles bear repeating. In its

Decision dated November 5, 2008, the Board outlined its general approach to settlement

agreements submitted to it for approval:

[12] The Board's Regulatory Rules facilitate settlement discussions. The Board welcomes and appreciates the efforts of parties to, in good faith, settle issues, even where, as sometimes happens, a settlement cannot be ultimately achieved.

[13] Where, as here, the Agreement is supported by representatives of all of the customer classes, the Board can have confidence that the Agreement is in the public interest.

[14] Customers of NSPI and members of the public are, perhaps understandably, wary of the settlement process. Many of those customers and members of the public may not appreciate that by the time the hearing commences 80% of the rate hearing process has already happened. NSPI filed extensive evidence, as required by the Board, to support its rate request. Interested parties and Board Staff asked NSPI many hundreds of written questions (Information Requests), to which responses were filed.

[15] All of the parties who chose to do so filed evidence, including expert evidence.Written questions (Information Requests) have been asked of and answered by interested parties who filed evidence. NSPI filed reply evidence. As noted, all of this happened before the hearing was scheduled to begin so that the parties and the Board are well informed about the case in advance of any oral public hearing.

[16] The public can rest assured that the Board Members hearing the matter have also thoroughly reviewed all of the material in advance of coming to a decision as to whether to approve the Agreement as being in the public interest.

[17] Settlement agreements, while relatively new in regulatory matters before the Board, are common in the litigation process. Within the Board's adjudicative mandate, for example, assessment appeals, planning appeals and other matters are often settled. In the civil courts of Nova Scotia, a much higher percentage of cases are settled than go to trial.

[18] That is not to say that the Board would hesitate to reject a settlement agreement it did not consider to be in the public interest, however, it should be understood that a properly supported settlement is a success of the regulatory process, not a failure.

[2008 NSUARB 140]

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3.2 The Settlement Agreement in this matter

[18] The operative part of the Settlement Agreement in this proceeding was

contained in Appendix A of the Agreement, which provides:

1. Based on the record before the Board, the Parties agree not to request any disallowances or raise any issues in this FAM proceeding with respect to the 2016 FAM Audit Report, any of the conclusions or recommendations contained in the 2016 FAM Audit Report or any of the evidence filed in the 2016 FAM proceeding.

2. NS Power agrees to forgo $3 million of its entitlement to the 2016 FAM incentive payment, which will be credited to FAM customers through the AA/BA process.

3. The Parties agree that the issue of NS Power’s decision not to accept contracts for gas supply and transportation offered to NS Power in 2008 by NewPage Port Hawkesbury Corporation (collectively “NPPFI Contracts”) will not be the subject of any future FAM disallowances or FAM proceedings. This Settlement Agreement represents full and final resolution on all matters relating to or arising from the NPPH Contracts.

4. NS Power’s July 2007 purchase commitment for the supply of coal from Venezuelan mining operations controlled by the government of Venezuela (“Guasare Coal Purchases”) will not be the subject of any future FAM disallowances or FAM proceedings. This Settlement Agreement represents full and final resolution on all matters relating to or arising from the Guasare Coal Purchases.

5. NS Power will hold a Technical Conference for the FAM Small Working Group on or before March 31, 2017 regarding NS Power’s future plan for its thermal generation resources and the performance of the Tufts Cove Units.

6. The issue of the ongoing status of the FAM incentive will be referred to the FAM Small Working Group with the intent to amend the Plan of Administration to eliminate the FAM incentive subject to the approval of the Board.

7. This settlement is without prejudice to any position that parties may take on these issues in future proceedings except with respect to:

a) the NPPH Contracts;

b) the Guasare Coal Purchases; and

c) matters arising during the 2014 to 2015 audit period identified in the 2016 FAM Audit Report (except to the extent that they impact future audit periods).

[Exhibit N-21, p. 3]

Findings

[19] The Settlement Agreement represents a comprehensive resolution of the

contested issues between NSPI and the Intervenors, who represent most of NSPI’s

customers.

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[20] In her Opening Statement on behalf of the Industrial Group, Ms. Rubin

explained the benefits of the Settlement Agreement for ratepayers:

The Industrial Group is a signatory to a proposed Settlement Agreement which has been placed before the Board. It is the product of discussions among the active participants in this matter and represents a consensus among all of the represented customer classes.

The settlement achieves a number of benefits: there is a monetary value to the settlement of $3 million which will be credited to FAM customers through the AA/BA process. It also brings finality to disallowances tied to the gas supply and transportation contracts offered to NSPI in 2008 by NewPage Port Hawkesbury Corporation. NSPI has filed evidence suggesting that in future years the benefit of those contracts would shift, such that customers would be paying back monies which have been disallowed. It is recognized however, that the process to determine the proper monetary value to be placed on this involves a great deal of person-hours and adjudicative time. The parties collectively agree there is value in finality to this issue.

The parties have acknowledged issues raised by Liberty in its Audit Report with respect to NSPI’s future plans for its thermal generation resources and the performance of the Tufts Cove units. It is felt that these are complex issues better explored in a technical conference rather than adjudicated before the Board. The Settlement Agreement accomplishes this as well.

With respect to Clause 6 of the Settlement Agreement, the parties collectively agree that it is appropriate to address amendment of the FAM Plan of Administration with a view to elimination of the FAM incentive. At a future time, it is anticipated that these amendments will be brought before the Board.

[Exhibit N-19, pp. 1-2]

[21] Both PHP and Heritage Gas Limited indicated that they would not be active

participants in the hearing and did not consider it appropriate nor necessary to participate

in the Settlement Agreement.

[22] Taking into account the evidence and the Opening Statements of the

parties, the Board is satisfied that the Settlement Agreement is in the public interest and

that it should be approved, as the Board confirmed orally at the conclusion of the hearing.

[23] Accordingly, the Board directs NSPI to apply the $3 million credit flowing

from the Settlement Agreement through the AA/BA proceeding, as was canvassed in that

recent Decision, 2016 NSUARB 201, issued December 12, 2016. The $3 million amount

will be returned to ratepayers no later than April 30, 2017, in the same manner as the

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AA/BA over-recovery, in the form of a one-time credit based on energy consumption, with

interest from January 1, 2017.

4.0 SHAREHOLDER COST - APPLICATION OF $3 MILLION

[24] On questioning from Board Counsel, Nicole Henneberry, Director of

Finance for NSPI, confirmed that the $3 million to be credited to customers pursuant to

Section 2 of the Settlement Agreement, whereby NSPI foregoes $3 million of the 2016

FAM incentive, is a shareholder cost.

[25] She confirmed that, since the FAM has been in effect, the incentive has

been treated as a non-regulated or shareholder cost similar to how NSPI would treat a

donation.

5.0 THERMAL PLANTS - CAPACITY FACTOR

[26] Liberty, in its Audit Report, with respect to the operation of the Utility’s

thermal plants and, specifically, their capacity factors, stated as follows:

In 2007, when the installation of renewables and the resulting drop in fossil generation and emissions began, NS Power had 13 such fossil units in service. Today there are 15. Liberty is not aware of the future generation mix that was contemplated in 2007. We do of course know the actual outcome. Specifically coal generation and hence emissions have fallen, but more, not fewer fossil units operate. The evolution of the supply portfolio over the last eight years has resulted in an odd mix that additionally operates in an odd way. And that operating mode promises to become more unusual in the years ahead, as the recent BCF filing indicates. Consider the following:

• Units above 50 percent capacity factor: 2014-15: 8 2019: 5• Units below 30 percent capacity factor: 2014-15: 0 2019: 6

[Exhibit N-1, p. VIII-14]

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[27] Paragraph 5 of the Settlement Agreement obliges NSPI to hold a Technical

Conference on or before March 31, 2017, regarding NSPI’s future plan for its thermal

generation resources and the performance of the Tufts Cove units.

[28] The issue of the operation of the thermal plants is also the subject of review

in NSPI’s 2016 10-year system outlook (M07540). That proceeding is not yet complete.

As noted in questioning during this hearing, the Board is considering whether some

further process, including perhaps a generic hearing, is required in order to satisfactorily

resolve issues concerning the operation of the thermal plants. The Board makes no

finding in this Decision, but may well do so as part of the findings in the 10-year system

outlook, or otherwise.

6.0 NSPI ACTION PLAN FOR OUTSTANDING ITEMS

[29] As mentioned earlier in this Decision, NSPI accepted most of Liberty’s Audit

recommendations. As noted in prior FAM Audit Decisions of the Board, these

recommendations still need to be implemented, with the results communicated to the

Board, the FAM Small Working Group, and other interested parties.

[30] In its Reply Evidence, NSPI stated:

On August 12, 2016, Liberty filed its report of conclusions and recommendations on NS Power’s 2014-2015 FAM costs (the Audit Report). The majority of the recommendations contained within the Audit Report (25 of 31) are acceptable to the Company. NS Power proposes that it establish an Action Plan on these items and provide periodic updates to the UARB and interested parties.

[Exhibit N-4, p. 9]

[31] The Board agrees with this approach and NSPI is directed to file its draft

Action Plan for the Board’s review no later than January 31, 2017. The Formal

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Intervenors may provide their comments on the draft Action Plan, if any, by February 15,

2017.

[32] The Board also directs that the first semi-annual FAM Audit Action Plan

Update be filed no later than July 31, 2017, and continuing every six months thereafter

until all matters are resolved.

7.0 SUMMARY OF BOARD FINDINGS

[33] This Decision relates to a public hearing respecting an audit of NSPI's fuel

adjustment mechanism (“FAM”) for the years 2014 and 2015.

[34] The Liberty Consulting Group (“Liberty”) was engaged to do the audit and

filed its FAM Audit report on August 12, 2016, with a Supplementary Report filed

September 15, 2016. NSPI filed its Reply Evidence on September 23, 2016.

[35] NSPI accepted 25 of Liberty’s 31 FAM Audit recommendations and will

develop an Action Plan regarding their implementation. The Board directs NSPI to file its

draft FAM Audit Action Plan no later than January 31, 2017. Formal Intervenors may

provide their comments on the draft Action Plan, if any, by February 15, 2017. NSPI is

also directed to file, semi-annually, its Action Plan Update, commencing July 31,2017.

[36] NSPI and the Formal Intervenors executed a Settlement Agreement with

respect to the outstanding matters related to the FAM Audit. As part of the settlement,

the parties agreed that NSPI would pay a $3 million credit to ratepayers, as a shareholder

cost, which will be applied through the AA/BA proceeding. In its recent AA/BA Decision

[2016 NSUARB 201], issued December 12, 2016, the Board directed NSPI to return the

$3 million amount to ratepayers no later than April 30, 2017, in the same manner as the

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AA/BA over-recovery, in the form of a one-time credit based on energy consumption, with

interest from January 1,2017.

[37] The Board will consider whether to convene a generic or other proceeding

to consider the issue of the future operation of NSPI’s thermal plants, including their

capacity factor.

[38] An Order will issue accordingly.

DATED at Halifax, Nova Scotia, this 21st day of December, 2016.

Peter w. Gurnham

Roland AiDeveau

. Murphy

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