807 KAR 5:076. Alternative rate adjustment procedure for small utilities.

 

      RELATES TO: KRS 278.010, 278.030, 278.160, 278.180, 278.185, 278.190, 278.310, 278.380

      STATUTORY AUTHORITY: KRS 278.040(3), 278.160(1), 278.180, 278.185(4)

      NECESSITY, FUNCTION AND CONFORMITY: KRS 278.040(3) authorizes the commission to promulgate administrative regulations to implement KRS Chapter 278. This administrative regulation establishes a simplified and less expensive procedure for small utilities to use to apply to the commission for rate adjustments.

 

      Section 1. Definitions. (1) "Annual report" means the financial and statistical report incorporated by reference in 807 KAR 5:006, which requires a utility to file the annual report with the commission.

      (2) "Annual report for the immediate past year" means an annual report that covers the applicant’s operations for either:

      (a) The calendar year period prior to the year in which the applicant’s application for rate adjustment is filed with the commission; or

      (b) The most recent calendar year period that 807 KAR 5:006, Section 4(1), requires the applicant to have on file with the commission as of the date of the filing of its application for rate adjustment.

      (3) "Applicant" means a utility that is applying for an adjustment of rates using the procedure established in this administrative regulation.

      (4) "Gross annual revenue" means:

      (a) The total revenue that a utility derived during a calendar year; or

      (b) If the utility operates two (2) or more divisions that provide different types of utility service, the total amount of revenue derived from the division for which a rate adjustment is sought.

      (5) "Rate" is defined by KRS 278.010(12).

      (6) "Sewage utility" means a utility that meets the requirements of KRS 278.010(3)(f).

      (7) "Utility" is defined by KRS 278.010(3).

      (8) "Water district" means a special district or special purpose governmental entity created pursuant to KRS Chapter 74.

      (9) "Web site" means an identifiable site on the Internet, including social media, which is accessible to the public.

 

      Section 2. Utilities Permitted to File Application. A utility may apply for an adjustment of rates using the procedure established in this administrative regulation if it:

      (1) Had gross annual revenue in the immediate past calendar year of $5,000,000 or less;

      (2) Maintained adequate financial records fully separated from a commonly-owned enterprise; and

      (3) Filed with the commission fully completed annual reports for the immediate past year and for the two (2) prior years if the utility has been in existence that long.

 

      Section 3. The Record upon which Decision Shall Be Made. The commission shall make its decision based on the:

      (1) Applicant’s annual report for the immediate past year and the annual reports for the two (2) prior years, if the utility has been in existence that long;

      (2) The application required by Section 4 of this administrative regulation;

      (3) Information supplied by the parties in response to requests for information;

      (4) Written reports submitted by commission staff;

      (5) Stipulations and agreements between the parties and commission staff;

      (6) Written comments and information that the parties to the proceeding submitted in response to the findings and recommendations contained in a written report that commission staff submitted; and

      (7) If a hearing is held, the record of that hearing.

 

      Section 4. Application. (1) An application for alternative rate adjustment shall consist of:

      (a) A completed ARF Form-1 that is made under oath and signed by the applicant or an officer who is duly designated by the applicant and who has knowledge of the matters established in the application;

      (b) A copy of all outstanding evidences of indebtedness, such as mortgage agreements, promissory notes, and bond resolutions;

      (c) A copy of the amortization schedule for each outstanding bond issuance, promissory note, and debt instrument;

      (d) A depreciation schedule of all utility plant in service;

      (e) A copy of the most recent state and federal tax returns of the applicant, if the applicant is required to file returns;

      (f) A detailed analysis of the applicant’s customers’ bills showing revenues from the present and proposed rates for each customer class;

      (g) A copy of the notice of the proposed rate change that is provided to customers of the applicant;

      (h) A completed ARF Form-3 for each member of the utility’s board of commissioners or board of directors, each person who has an ownership interest of ten (10) percent or more in the utility, and the utility’s chief executive officer; and

      (i) If a water district proposes to increase any current rate for service or implement a new rate for service, a statement from an authorized official of the district indicating the date the proposed rate increase or new rate was reported to the governing body of the county in which the largest number of its customers resides and the date it presented testimony, or is scheduled to present testimony, to that governing body.

      (2) Except as provided in 807 KAR 5:001, Section 8 for electronic filings, the applicant shall:

      (a) Submit one (1) original and five (5) paper copies of its application to the executive director of the commission; and

      (b) Deliver or mail one (1) paper copy to the Office of Rate Intervention, Office of the Attorney General, 1024 Capital Center Drive, Suite 200, Frankfort, Kentucky 40601-8204 or transmit by electronic mail an electronic copy in portable document format to the Office of Rate Intervention at rateintervention@ag.ky.gov.

      (3)(a) If the application contains an individual’s Social Security number, taxpayer identification number, birth date, or a financial account number, the applicant shall redact the document so the following information cannot be read:

      1. The digits of the Social Security number or taxpayer identification number;

      2. The month and day of an individual’s birth; and

      3. The digits of the financial account number.

      (b) To redact the document, the applicant shall replace the identifiers with neutral placeholders or cover the identifiers with an indelible mark, that so obscures the identifiers that they cannot be read.

      (4) The application shall not contain any request for relief from the commission other than an adjustment of rates.

      (5) A utility may make written request to the executive director for commission staff assistance in preparing the application.

 

      Section 5. Notice. Upon filing an application for an alternative rate adjustment, a utility shall provide notice as established in this section.

      (1) Public postings.

      (a) A utility shall post at its place of business a copy of the notice no later than the date the application is submitted to the commission.

      (b) A utility that maintains a Web site shall, within five (5) business days of the date the application is submitted to the commission, post on its Web sites:

      1. A copy of the public notice; and

      2. A hyperlink to the location on the commission’s Web site where the case documents are available.

      (c) The information required in paragraphs (a) and (b) of this subsection shall not be removed until the commission issues a final decision on the application.

      (2) Customer Notice.

      (a) If a utility has twenty (20) or fewer customers or is a sewage utility, it shall mail a written notice to each customer no later than the date on which the application is submitted to the commission.

      (b) If a utility has more than twenty (20) customers and is not a sewage utility, it shall provide notice by:

      1. Including notice with customer bills mailed no later than the date the application is submitted to the commission;

      2. Mailing a written notice to each customer no later than the date the application is submitted to the commission;

      3. Publishing notice once a week for three (3) consecutive weeks in a prominent manner in a newspaper of general circulation in the utility’s service area, the first publication to be made no later than the date the application is submitted to the commission; or

      4. Publishing notice in a trade publication or newsletter delivered to all customers no later than the date the application is submitted to the commission.

      (c) A utility that provides service in more than one (1) county and is not a sewage utility may use a combination of the notice methods listed in paragraph (b) of this subsection.

      (3) Proof of Notice. A utility shall file with the commission no later than forty-five (45) days from the date the application was initially submitted to the commission:

      (a) If notice is mailed to its customers, an affidavit from an authorized representative of the utility verifying the contents of the notice, that notice was mailed to all customers, and the date of the mailing;

      (b) If notice is published in a newspaper of general circulation in a utility’s service area, an affidavit from the publisher verifying the contents of the notice, that the notice was published, and the dates of the notice’s publication; or

      (c) If notice is published in a trade publication or newsletter delivered to all customers, an affidavit from an authorized representative of the utility verifying the contents of the notice, the mailing of the trade publication or newsletter, that notice was included in the publication or newsletter, and the date of mailing.

      (4) Notice Content. Each notice issued in accordance with this section shall contain:

      (a) The date the proposed rates are expected to be filed with the commission;

      (b) The present rates and proposed rates for each customer classification to which the proposed rates will apply;

      (c) The amount of the change requested in both dollar amounts and percentage change for each customer classification to which the proposed rates will apply;

      (d) The amount of the average usage and the effect upon the average bill for each customer classification to which the proposed rates will apply;

      (e) A statement that a person may examine this application at the offices of (utility name) located at (utility address);

      (f) A statement that a person may examine this application at the commission’s offices located at 211 Sower Boulevard, Frankfort, Kentucky, Monday through Friday, 8:00 a.m. to 4:30 p.m., or through the commission’s Web site at http://psc.ky.gov;

      (g) A statement that comments regarding the application may be submitted to the Public Service Commission through the commission’s Web site or by mail to Public Service Commission, Post Office Box 615, Frankfort, Kentucky 40602;

      (h) A statement that the rates contained in this notice are the rates proposed by (utility name) but that the Public Service Commission may order rates to be charged that differ from the proposed rates contained in this notice;

      (i) A statement that a person may submit a timely written request for intervention to the Public Service Commission, Post Office Box 615, Frankfort, Kentucky 40602, establishing the grounds for the request including the status and interest of the party; and

      (j) A statement that if the commission does not receive a written request for intervention within thirty (30) days of initial publication or mailing of the notice, the commission may take final action on the application.

 

      Section 6. Except as provided in 807 KAR 5:001, Section 8(2), an applicant shall not be required to provide the commission with advance notice of its intent to file an application for rate adjustment using the procedure established in this administrative regulation.

 

      Section 7. Effective Date of Proposed Rates. (1) An applicant shall not place the proposed rates into effect until the commission has issued an order approving those rates or six (6) months from the date of filing of its application, whichever occurs first.

      (2) If the commission has not issued its order within six (6) months from the date of filing of the application, the applicant may place its proposed rates in effect subject to refund upon providing the commission with written notice of its intent to place the rates into effect.

      (3) The applicant shall maintain its records in a manner to enable it, or the commission, to determine the amounts to be refunded and to whom a refund is due if the commission orders a refund.

 

      Section 8. Amendment of Proposed Rates. (1) Except when responding to the findings set forth in a commission staff report filed in accordance with Section 11 of this administrative regulation, an applicant shall not amend the proposed rates set forth in its application unless the applicant:

      (a) Files written notice of the proposed amendment with the commission; and

      (b) Publishes notice of the amended proposed rates in the manner provided in Section 5 of this administrative regulation.

      (2) An applicant shall not place amended proposed rates into effect until the commission has issued an order approving those rates or six (6) months from the date of filing of the written notice of proposed amendment, whichever occurs first.

      (3) If the commission has not issued an order within six (6) months from the date of filing of the notice of amended proposed rates, the applicant may place the amended proposed rates in effect subject to refund upon providing the commission with written notice of its intent to place the rates into effect but shall maintain its records in a manner to enable it, or the commission, to determine the amounts to be refunded and to whom a refund is due if the commission orders a refund.

 

      Section 9. Test Period. The reasonableness of the proposed rates shall be determined using a twelve (12) month historical test period, adjusted for known and measureable changes, that coincides with the reporting period of the applicant’s annual report for the immediate past year.

 

      Section 10. Discovery. (1) The minimum discovery available to intervening parties shall be as prescribed by this subsection.

      (a) A party in the proceeding may serve written requests for information upon the applicant within twenty-one (21) days of an order permitting that party to intervene in the proceeding.

      (b) Upon serving requests upon the applicant, the party shall file a copy of the party’s requests with the commission and serve a copy upon all other parties.

      (c) Within twenty-one (21) days of service of timely requests for information from a party, the applicant shall serve its written responses upon each party and shall file with the commission one (1) original and five (5) copies.

      (2) The commission may establish different arrangements for discovery if it finds different arrangements are necessary to evaluate an application or to protect a party’s rights to due process.

 

      Section 11. Commission Staff Report. (1) Within thirty (30) days of the date that an application is accepted for filing, the commission shall enter an order advising the parties if commission staff will prepare a report on the application.

      (2) If a commission staff report is prepared, the:

      (a) Commission staff shall:

      1. File the report with the commission; and

      2. Serve a copy of the report on all parties of record; and

      (b) Report shall contain the commission staff’s findings and recommendations regarding the proposed rates.

      (3)(a) Each party shall file with the commission a written response to the commission staff report within fourteen (14) days of the filing of the report.

      (b) This written response shall contain:

      1. All objections to and other comments on the findings and recommendations of commission staff;

      2. A request for hearing or informal conference, if applicable;

      3. The reasons why a hearing or informal conference is necessary; and

      4. If commission staff reports that the applicant’s financial condition supports a higher rate than the applicant proposed or recommends the assessment of an additional rate or charge not proposed in the application, the filing party’s position on if the commission should authorize the assessment of the higher rate or the recommended additional rate or charge.

      (c) If a party’s written response fails to contain an objection to a finding or recommendation contained in the commission staff report, it shall be deemed to have waived all objections to that finding or recommendation. A party’s failure to request a hearing or informal conference in the party’s written response shall be deemed a waiver of all rights to a hearing on the application and a request that the case stand submitted for decision.

      (d) If a party fails to file a written response with the commission within this time period, it shall be deemed to have waived all objections to the findings and recommendations contained in the report and all rights to a hearing on the application.

      (e) Acceptance of the findings and recommendations contained in the commission staff report by all parties in a proceeding shall not preclude the commission from conducting a hearing on the application, taking evidence on the applicant’s financial operations, or ordering rates that differ from or conflict with the findings and recommendations established in the commission staff report.

      (f) If commission staff reports that the applicant’s financial condition supports a higher rate than the applicant proposed or commission staff recommends the assessment of an additional rate or charge not proposed in the application and commission staff’s proposed rates produce a total increase in revenues that exceeds 110 percent of the total increase in revenues that the applicant’s proposed rates will produce and the applicant amends its application to request commission staff’s proposed rates, the commission shall order the applicant to provide notice of the finding or recommendation to its customers.

 

      Section 12. Notice of Hearing. (1) If the commission orders a hearing, the applicant shall publish in a newspaper or mail to the applicant’s customers notice of the hearing.

      (2) The notice shall state the purpose, time, place, and date of the hearing.

      (3) Newspaper notice shall be published once in a newspaper of general circulation in the applicant's service area no fewer than seven (7) and no more than twenty-one (21) days prior to the hearing.

      (4) Mailed notices shall be mailed at least fourteen (14) days prior to the date of the hearing.

 

      Section 13. Utility Personnel Participation in Commission Proceedings. (1) An authorized official or employee of the applicant who is not licensed to practice law in Kentucky may, on behalf of an applicant that is a water district, corporation, partnership, or limited liability company, file the application, responses to commission orders and requests for information, as well as appear at conferences related to the application.

      (2) An applicant that is a water district, corporation, partnership, or limited liability company shall, at a hearing conducted on the application, be represented by an attorney who is authorized to practice law in Kentucky.

 

      Section 14. Filing Procedures. (1) Unless the commission orders otherwise or the electronic filing procedures established in 807 KAR 5:001, Section 8, are used, if a document in paper medium is filed with the commission, five (5) additional copies in paper medium shall also be filed.

      (2) All documents filed with the commission shall conform to the requirements established in this subsection.

      (a) Form. Each filing shall be printed or typewritten, double spaced, and on one (1) side of the page only.

      (b) Size. Each filing shall be on eight and one-half (8 1/2) inches by eleven (11) inches paper.

      (c) Font. Except for ARF Form-1 and ARF Form-3, each filing shall be in type no smaller than twelve (12) point, except footnotes, which shall be in type no smaller than ten (10) point.

      (d) Binding. A side-bound or top-bound filing shall also include an identical unbound copy.

      (3) Except as provided for in 807 KAR 5:001, Section 8, a filing made with the commission outside its business hours shall be considered as filed on the commission’s next business day.

      (4) A document submitted by facsimile transmission shall not be accepted.

 

      Section 15. Use of Electronic Filing Procedures in lieu of Submission of Paper Documents. Upon an applicant’s election of the use of electronic filing procedures within the time limits established in 807 KAR 5:001, Section 8(2), the procedures established in 807 KAR 5:001, Section 8, shall be used in lieu of other filing procedures established in this administrative regulation.

 

      Section 16. The provisions of 807 KAR 5:001, Sections 1 through 6, 8 through 11, and 13, shall apply to commission proceedings involving applications filed pursuant to this administrative regulation.

 

      Section 17. Upon a showing of good cause, the commission may permit deviations from this administrative regulation. Requests for deviation shall be submitted in writing by letter to the commission.

 

      Section 18. Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) "Application for Rate Adjustment before the Public Service Commission", ARF Form 1, November 2013; and

      (b) "Statement of Disclosure of Related Party Transactions", ARF Form 3, November 2013.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law at the commission’s offices at 211 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8:00 a.m. to 4:30 p.m., or through the commission’s Web site at http://psc.ky.gov/. (8 Ky.R. 835; eff. 4-7-82; Am. 22 Ky.R. 994; 1312; 1-3-96; 38 Ky.R. 132; 629; 765; eff. 11-4-11; 39 Ky.R. 320, 1159; eff. 1-4-13; 40 Ky.R. 704; 1123; eff. 1-3-2014.)