48:2-21.27. Base rate case proceedings

4. a. An electric public utility that enters into an off-tariff rate agreement pursuant to section 3 of P.L.1995, c.180 (C.48:2-21.26) shall not recover through rates any revenue erosion that occurs between the effective date of the agreement and the conclusion of the public utility's next base rate case.

b. As part of a base rate case proceeding, an electric public utility may request prospective recovery of a portion of the quantifiable revenue erosion resulting from an existing off-tariff rate agreement with a customer that previously purchased power from the utility under a tariff set by the board. Whenever a public utility requests partial recovery of revenue erosion from an off-tariff rate agreement, and notwithstanding any provision of subsection c. of section 3 of P.L.1995, c.180 (C.48:2-21.26) to the contrary, the entire agreement shall be available to the public, except that a public utility may petition the board to keep confidential certain parts of the agreement or supporting documentation that are competitively sensitive. Upon petition by the public utility, and after an opportunity for all interested parties to comment, the board may classify as confidential any part of the agreement that is found to contain competitively sensitive information that, if revealed, would harm the competitive position of either party to the agreement. An intervenor in the base rate case proceeding may request access to information that has been classified as confidential. The board shall grant such access, subject to an executed non-disclosure agreement, if the board determines that the intervenor's interest cannot be pursued fully in the base rate case proceeding without access to the information and that the intervenor is not a direct competitor of either party to the agreement.

c. In a base rate case proceeding at which an electric public utility requests, pursuant to subsection b. of this section, prospective recovery of revenue erosion, the board may approve prospective recovery of 50 percent of the revenue erosion occurring after the conclusion of that base rate case proceeding, in order to ensure that ratepayers shall not bear a greater portion of the revenue erosion resulting from the off-tariff rate agreement than the public utility, if the board determines that:

(1) All appropriate offsetting financial adjustments, including but not limited to sales growth, standby and backup sales to the customer, are credited to the revenue requirement calculation and that the utility is not already achieving a fair and reasonable rate of return;

(2) The utility has developed and implemented a corporate strategy to lower its cost of delivering power;

(3) Ratepayers are paying lower rates with the implementation of an off-tariff rate agreement for a particular customer than without such implementation, because the off-tariff rate agreement allowed the utility to continue to maintain the customer and thus to continue to receive the customer's contribution to the fixed transmission and distribution costs of the electric public utility. A determination that the public utility's ratepayers are paying lower rates with the implementation of an off-tariff rate agreement prior to the effective date of P.L.1999, c.23 (C.48:3-49 et al.) will therefore include a finding that the customer receiving the off-tariff rate:

(a) Had a viable alternative source of power deliverable to its site and, had it not received the off-tariff rate, would have ceased to obtain its power primarily from the public utility; or

(b) Would have relocated its facility outside of the State to a location where power could be obtained at a lower cost, had it not received the off-tariff rate.

A determination that the public utility's ratepayers are paying lower rates with the implementation of an off-tariff rate agreement on or after the effective date of P.L.1999, c.23 (C.48:3-49 et al.) will therefore include a finding that the customer receiving the off-tariff rate would have relocated its facility outside of the State to a location where it could have obtained delivered power at a lower cost, had it not received the off-tariff rate; and

(4) The utility and the customer have otherwise complied with the provisions of P.L.1995, c.180 (C.48:2-21.24 et seq.) and the off-tariff rate standards adopted by the board pursuant to subsection a. of section 3 of P.L.1995, c.180 (C.48:2-21.26).

L.1995,c.180,s.4; amended 1999, c.23, s.54.