74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 443
Sponsored by Senator DECKERT; Representative BERGER
CHAPTER ................
AN ACT
Relating to electric utilities; creating new provisions; amending
ORS 221.420, 221.450, 287.025, 757.511 and 757.612;
appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
OREGON COMMUNITY POWER + }
{ +
(Definitions) + }
SECTION 1. { + As used in sections 1, 2 and 3 to 39 of this
2007 Act:
(1) 'Board' means the board of directors of Oregon Community
Power.
(2) 'Incumbent utility' means an investor-owned utility that is
the subject of a transaction described in section 2 of this 2007
Act.
(3) 'Investor-owned utility' means a utility that sells
electricity and that is operated by a corporation with
shareholders.
(4) 'Rate' has the meaning given that term in ORS 756.010.
(5) 'Service' has the meaning given that term in ORS 756.010.
(6) 'Service territory' means the geographic area within which
a utility provides electricity to customers. + }
{ +
(Acquisition Review Committee) + }
SECTION 2. { + Creation of acquisition review committee.
(1)(a) Except as provided in subsection (9) of this section, the
Public Utility Commission shall give notice to the cities and
counties specified in paragraph (b) of this subsection whenever
the commission receives notice of a proposed transaction under
ORS 757.511 (2):
(A) Relating to an investor-owned utility for which approval of
the Public Utility Commission is required under ORS chapter 757;
and
(B) Involving the sale of 50 percent or more of the voting
shares of the utility to a person that is not an affiliated
interest with the utility as defined in ORS 757.015.
Enrolled Senate Bill 443 (SB 443-B) Page 1
(b) Notice under subsection (1) of this section shall be given
to a city or county if the investor-owned utility that is the
subject of the proposed transaction has service territory within
the boundaries of the city or county.
(2) Upon receiving notice under subsection (1) of this section,
each city or county may appoint a member to an acquisition review
committee formed to represent the affected cities and counties.
An acquisition review committee must be formed not more than 60
days after notice is given by the commission under subsection (1)
of this section. If an acquisition review committee is not formed
within 60 days after notice is given by the commission under
subsection (1) of this section, the commission shall proceed with
any application made under ORS 757.511 for approval of the
transaction.
(3) An acquisition review committee formed under this section
shall consider a proposed transaction described in subsection (1)
of this section for the purpose of determining whether:
(a) Acquisition of the investor-owned utility by Oregon
Community Power would be in the best interests of the customers
served by the investor-owned utility; and
(b) Acquisition of the utility can be accomplished in a manner
that is consistent with the policy described in section 27 of
this 2007 Act.
(4) An acquisition review committee created under this section
may decide to enter into negotiations for the acquisition of an
investor-owned utility that is the subject of a proposed
transaction described in subsection (1) of this section only by
the affirmative vote of members of the committee representing
counties in which reside not less than two-thirds of the
customers with billing accounts that are served by the incumbent
utility, and the affirmative vote of members of the committee
representing cities in which reside not less than two-thirds of
the customers with billing accounts that are served by the
incumbent utility. If an acquisition review committee determines
that negotiations should commence, the committee shall:
(a) Enter into negotiations with the incumbent utility or
persons that have authority to negotiate the disposition of the
incumbent utility or the electric utility assets of the incumbent
utility; and
(b) If the negotiations result in an agreement between the
committee and the incumbent utility or persons described in
paragraph (a) of this subsection, the committee shall immediately
give notice to the commission and file an application with the
commission under ORS 757.511 for approval of the transaction.
(5) An acquisition review committee created under this section
may decide to acquire an investor-owned utility under subsection
(4) of this section only by the affirmative vote of members of
the committee representing counties in which reside not less than
two-thirds of the customers with billing accounts that are served
by the incumbent utility, and the affirmative vote of members of
the committee representing cities in which reside not less than
two-thirds of the customers with billing accounts that are served
by the incumbent utility. An acquisition review committee may
vote to acquire an incumbent utility under this subsection only
after public notice and consultation with groups representing
customers of the incumbent utility.
(6) An acquisition review committee must complete negotiations
and vote to enter into an agreement not more than 150 days after
notice is given to cities and counties under subsection (1) of
this section. If the incumbent utility agrees in writing, the
Enrolled Senate Bill 443 (SB 443-B) Page 2
committee may request that the time limitation imposed by this
section be extended by 90 days.
(7) If the commission approves acquisition of the incumbent
utility by Oregon Community Power, the commission shall inform
the Governor and the Governor shall activate Oregon Community
Power by convening an initial Oregon Community Power Board
Nominating Committee under section 7 of this 2007 Act. As soon as
the first board of directors of Oregon Community Power is
appointed under section 8 of this 2007 Act, the board shall
implement the agreement and acquire the incumbent utility or the
electric utility assets of the incumbent utility in the name of
Oregon Community Power.
(8) An acquisition review committee shall give notice to the
commission immediately if the committee proposes to dissolve or
decides not to enter into negotiations under subsection (4) of
this section or if negotiations do not result in an agreement.
(9) The commission may not give notice to cities and counties
under subsection (1) of this section if a person providing notice
of a proposed transaction under ORS 757.511 (2) also provides to
the commission written consent forms signed by persons with
authority to act on behalf of counties in which reside not less
than two-thirds of the customers with billing accounts that are
served by the incumbent utility and on behalf of cities in which
reside not less than two-thirds of the customers with billing
accounts that are served by the incumbent utility.
(10) An acquisition review committee may enter into an
agreement for the acquisition of an incumbent utility or the
electric utility assets of the incumbent utility only if the
committee obtains approval for the acquisition from the
appropriate state agencies in all states in which the incumbent
utility serves retail electricity consumers.
(11) Notwithstanding any other provision of law, Oregon
Community Power is responsible for and shall pay all costs
relating to the acquisition of an incumbent utility, including
but not limited to:
(a) The costs of acquiring the electric utility assets of the
incumbent utility;
(b) The costs of acquiring any necessary generating capacity
and transmission capacity dedicated to serving the customers in
the service area that will be acquired, including but not limited
to electricity generating assets and alternate energy generating
assets under construction but not yet in service;
(c) Depreciation;
(d) Loss of revenue to the incumbent utility; and
(e) All electric utility assets necessary to reintegrate the
system of the incumbent utility after detaching the portion of
the utility acquired by Oregon Community Power. + }
SECTION 2a. ORS 757.511 is amended to read:
757.511. (1) No person, directly or indirectly, shall acquire
the power to exercise any substantial influence over the policies
and actions of a public utility which provides heat, light or
power without first securing from the Public Utility Commission,
upon application, an order authorizing such acquisition if such
person is, or by such acquisition would become, an affiliated
interest with such public utility as defined in ORS 757.015 (1),
(2) or (3).
{ + (2) Notice must be given to the commission of an
application under this section at least 60 days before the
application is filed with the commission. The notice must
indicate whether the transaction is a transaction described in
Enrolled Senate Bill 443 (SB 443-B) Page 3
section 2 (1) of this 2007 Act. If the transaction is a
transaction as described in section 2 (1) of this 2007 Act, the
commission shall give notice to cities and counties as required
by section 2 (1) of this 2007 Act. + }
{ - (2) - } { + (3) + } The application required by
subsection (1) of this section shall set forth detailed
information regarding:
(a) The applicant's identity and financial ability;
(b) The background of the key personnel associated with the
applicant;
(c) The source and amounts of funds or other consideration to
be used in the acquisition;
(d) The applicant's compliance with federal law in carrying out
the acquisition;
(e) Whether the applicant or the key personnel associated with
the applicant have violated any state or federal statutes
regulating the activities of public utilities;
(f) All documents relating to the transaction giving rise to
the application;
(g) The applicant's experience in operating public utilities
providing heat, light or power;
(h) The applicant's plan for operating the public utility;
(i) How the acquisition will serve the public utility's
customers in the public interest; and
(j) Such other information as the commission may require by
rule.
{ - (3) - } { + (4) + } The commission promptly shall
examine and investigate each application received pursuant to
this section { + . + }
{ - and - } { + Except as provided in subsection (5) of this
section, the commission + } shall issue an order disposing of the
application within 19 business days of its receipt. If the
commission determines that approval of the application will serve
the public utility's customers in the public interest, the
commission shall issue an order granting the application. The
commission may condition an order authorizing the acquisition
upon the applicant's satisfactory performance or adherence to
specific requirements. The commission otherwise shall issue an
order denying the application. The applicant shall bear the
burden of showing that granting the application is in the public
interest.
{ + (5) The commission may postpone issuance of an order
disposing of an application under this section if notice has been
given to cities and counties under section 2 (1) of this 2007
Act. In no event may the commission postpone issuance of an
order disposing of the application for more than 90 days under
the provisions of this subsection. + }
{ - (4) - } { + (6) + } Nothing in this section shall
prohibit dissemination by any party of information concerning the
acquisition so long as such dissemination is not otherwise in
conflict with state or federal law.
{ +
(Oregon Community Power Created) + }
SECTION 3. { + Oregon Community Power created. (1) Oregon
Community Power is created as a public corporation. Oregon
Community Power shall exercise and carry out all powers, rights
and privileges that are conferred upon Oregon Community Power
under sections 1, 2 and 3 to 39 of this 2007 Act.
Enrolled Senate Bill 443 (SB 443-B) Page 4
(2) Oregon Community Power is created as a public corporation
in order to carry out public services in sectors of the economy
in which activities or services are also provided by private
enterprise. Oregon Community Power is granted all needed
operating flexibility under sections 1, 2 and 3 to 39 of this
2007 Act in order to ensure the success of Oregon Community Power
while retaining principles of public accountability and
oversight.
(3) The primary mission of Oregon Community Power is to provide
reliable, low-cost electricity to electricity consumers in the
service territory in which Oregon Community Power undertakes to
provide electricity service. + }
SECTION 4. { + Laws applicable to Oregon Community Power. (1)
Except as provided in subsection (2) of this section, the
provisions of ORS chapters 35 (other than ORS 35.550 to 35.575),
180, 190, 192 and 244 and ORS 30.260 to 30.460, 200.005 to
200.025, 200.045 to 200.090, 221.450, 236.605 to 236.640, 243.650
to 243.782 (other than ORS 243.696), 297.040, 307.090 and 307.112
apply to Oregon Community Power under the same terms as they
apply to any other subdivision of state government.
(2) Except as otherwise provided by law, the provisions of ORS
chapters 182, 183, 238, 238A, 240, 270, 273, 276, 279A, 279B,
279C, 283, 286, 291, 292, 293, 294, 295 and 297 and ORS 35.550 to
35.575, 183.710 to 183.725, 183.745, 183.750, 184.305 to 184.345,
190.430, 190.480, 190.490, 192.105, 200.035, 236.380, 243.105 to
243.585, 243.696, 278.011 to 278.120, 278.315 to 278.415, 279.835
to 279.855, 282.010 to 282.150, 287.006, 287.452, 288.150 to
288.165, 288.600, 288.815 and 656.017 (2) do not apply to Oregon
Community Power.
(3) Oregon Community Power is not a participating public
employer in the Public Employees Retirement System.
(4) Any funds held by or under the control of Oregon Community
Power are not public funds, as defined in ORS 295.005. + }
SECTION 5. { + Regulatory authority of Public Utility
Commission over Oregon Community Power. (1) Solely for purposes
of determining the authority of the Public Utility Commission to
regulate Oregon Community Power and the activities and operations
of Oregon Community Power, Oregon Community Power shall be
considered a consumer-owned utility, as defined in ORS 757.270,
and the commission shall regulate Oregon Community Power as a
consumer-owned utility.
(2) In addition to having the authority granted the commission
under subsection (1) of this section, the commission has the
authority to:
(a) Regulate electricity service suppliers that conduct
business with or use the facilities of Oregon Community Power;
(b) Determine a claim by an electricity service supplier that
Oregon Community Power has acted in an anticompetitive manner;
and
(c) Take action against Oregon Community Power to enforce
consumer protection rules adopted under ORS 757.659 (3) and
applicable to direct access consumers.
(3) Oregon Community Power may not be required to obtain the
approval of the Public Utility Commission to make an acquisition
described in sections 1, 2 and 3 to 39 of this 2007 Act.
(4) As used in this section, 'direct access' and ' electricity
service supplier' have the meanings given those terms in section
28 of this 2007 Act. + }
Enrolled Senate Bill 443 (SB 443-B) Page 5
{ +
(Board of Directors) + }
SECTION 6. { + Nominating committee. (1) There is established
the Oregon Community Power Board Nominating Committee. The
purpose of the nominating committee is to assist the Governor in
appointing members to the board of directors of Oregon Community
Power under section 8 of this 2007 Act.
(2) The nominating committee shall consist of five members, as
follows:
(a) One member shall be a delegate from the Citizens' Utility
Board and shall represent the interests of residential
electricity consumers.
(b) One member shall be a delegate from a qualified
organization that represents the interests of primarily
commercial electricity consumers.
(c) One member shall be a delegate from a qualified
organization that represents the interests of primarily
industrial electricity consumers.
(d) One member shall be a delegate from the League of Oregon
Cities and shall represent the interests of municipalities and
their residents.
(e) One member shall be a delegate from the Association of
Oregon Counties and shall represent the interests of counties and
their residents.
(3) Of the members described in subsection (2)(d) and (e) of
this section, one shall be from a local government that is within
the service territory of Oregon Community Power and one shall be
from a local government that is outside of the service territory
of Oregon Community Power.
(4)(a) In order for the nominating committee to convene, the
board of directors of Oregon Community Power shall prepare a
proposed direction to convene as soon as is practicable following
the earlier of the date that a vacancy occurs on the board or the
date that it becomes known that a vacancy on the board will occur
within six months.
(b) The proposed direction to convene shall state the qualified
organizations that are to provide the delegates described in
subsection (2)(b) and (c) of this section. The board shall send
copies of the proposed direction to the Public Utility Commission
and to each organization that served as a qualified organization
at a prior convening of the nominating committee.
(c) Within 15 days after receipt of the proposed direction to
convene, the commission shall review the proposed direction. The
commission shall afford the opportunity for a hearing if
requested by any party. If the proposed direction lists
organizations that meet the qualifications of subsection (2)(b)
and (c) of this section, the commission shall approve the
direction. If the proposed direction does not list organizations
that are qualified organizations under subsection (2)(b) and (c)
of this section, the commission may modify the direction prior to
approval. A determination by the commission may be appealed as a
contested case under ORS chapter 183.
(5) The nominating committee shall convene as soon as is
practicable after receiving an approved direction to convene
under subsection (4) of this section, and shall forward the first
slate of nominees to the Governor for consideration under section
8 of this 2007 Act no later than 90 days after the date an
approved direction to convene is issued.
Enrolled Senate Bill 443 (SB 443-B) Page 6
(6) The nominating committee shall nominate three individuals
for each position on the board to be filled.
(7) A nominating committee that has been convened shall remain
convened until each vacant position on the board is filled. The
nominating committee shall forward a second slate of nominees to
the Governor if requested by the Governor under section 8 (2) of
this 2007 Act.
(8) In forwarding nominees to the Governor, the nominating
committee shall strive to select individuals who:
(a) Meet the qualifications described in section 8 (6) of this
2007 Act;
(b) If appointed, would result in a board of directors that
represents the geographic diversity of Oregon Community Power's
service territory; and
(c) Have the ability and experience to fulfill the principal
duties of the board under section 18 of this 2007 Act.
(9) As used in this section, 'qualified organization' means a
nonprofit organization that represents a broad class of
commercial or industrial customers and that has a substantial
record of representing the class before state agencies or the
Legislative Assembly in matters related to public utility rates,
terms and conditions and energy policy issues affecting the
class. + }
SECTION 7. { + Initial nominating committee. (1)
Notwithstanding section 6 of this 2007 Act, the Governor shall
convene the initial Oregon Community Power Board Nominating
Committee for the first board of directors of Oregon Community
Power on the date the Governor activates Oregon Community Power
under section 2 of this 2007 Act.
(2) The nominating committee shall forward the first slate of
nominees to the Governor for consideration under section 8 of
this 2007 Act within 30 days following the convening of the
committee by the Governor.
(3) If necessary, the nominating committee shall forward a
second slate of nominees to the Governor for consideration within
10 days after the Governor's request for a second slate of
nominees under section 8 (2) of this 2007 Act.
(4) For purposes of section 6 (3) of this 2007 Act, the service
territory of the incumbent utility is considered to be the
service territory of Oregon Community Power. + }
SECTION 8. { + Board of directors. (1) Oregon Community Power
shall be governed by a board of seven directors appointed by the
Governor using the procedure set forth in this section.
(2)(a) Prior to making any appointment to the board, the
Governor shall consider the nominations of the Oregon Community
Power Board Nominating Committee.
(b) If the Governor reviews an initial slate of nominees made
by the nominating committee and determines not to appoint a
nominee, the Governor shall request that the nominating committee
forward a second slate of nominees. If the Governor determines
not to appoint a nominee from the second slate of nominees, the
Governor may appoint any individual the Governor determines meets
the qualifications of subsection (6) of this section.
(3) Notwithstanding the requirement that the Governor consider
the nominations of the nominating committee prior to making an
appointment, the Governor shall appoint an individual to be a
board member within 120 days following the vacancy of a position
on the board.
(4) Each appointment shall be subject to confirmation by the
Senate in the manner prescribed in ORS 171.562 and 171.565.
Enrolled Senate Bill 443 (SB 443-B) Page 7
(5) The term of office for each board member shall be four
years. A board member may be nominated and appointed to
successive terms, but within 150 days prior to the expiration of
the term of the member, the board shall issue a proposed
direction to convene the nominating committee under section 6 of
this 2007 Act for the purpose of nominating individuals to fill
the board position.
(6) A member of the board shall have significant experience or
expertise in one or more of the following areas:
(a) Business operations;
(b) Utility management;
(c) Legal or financial affairs;
(d) Regional energy issues; or
(e) Developing public policy.
(7) The Governor may remove any member of the board for cause,
after notice and public hearing. + }
SECTION 9. { + Initial terms of directors. (1) Notwithstanding
section 8 (5) of this 2007 Act, the term of office for the first
board of directors of Oregon Community Power shall be as follows:
(a) Two members shall be appointed for a term that ends one
year following the date the Governor convenes the board;
(b) Two members shall be appointed for a term that ends two
years following the date the Governor convenes the board;
(c) Two members shall be appointed for a term that ends three
years following the date the Governor convenes the board; and
(d) One member shall be appointed for a term that ends four
years following the date the Governor convenes the board.
(2) Consistent with subsection (1) of this section, the
Governor shall designate the duration of the term of office of
each member of the first board of directors at the time the
Governor convenes the board. + }
SECTION 10. { + Board meetings and procedures. (1) The board
of directors of Oregon Community Power shall meet at least once
each month to conduct the business of the board.
(2) A majority of board members shall constitute a quorum.
(3) The board shall select one of its members as chairperson.
(4) The board shall adopt bylaws establishing rules of
procedure for board meetings and decisions.
(5) A member of the board shall be compensated as provided in
section 20 (12) of this 2007 Act.
(6) The board, not later than April 15 of each year, shall file
a report with the Governor and the Legislative Assembly. The
report shall explain the activities and operations of Oregon
Community Power for the preceding calendar year, including a
summary of the audit described in section 25 of this 2007
Act. + }
{ +
(Acquisition of Incumbent Utility) + }
SECTION 11. { + Acquisition of incumbent utility; use of
eminent domain. (1) As soon as practicable after being appointed,
the board of directors of Oregon Community Power shall implement
the agreement entered into by an acquisition review committee
under section 2 (4)(b) of this 2007 Act.
(2) Notwithstanding section 21 (1) of this 2007 Act, Oregon
Community Power may not use the power of eminent domain to
accomplish all or a part of an acquisition described in
subsection (1) of this section unless the incumbent utility or
the persons that have the authority to negotiate the disposition
Enrolled Senate Bill 443 (SB 443-B) Page 8
of the incumbent utility or the electric utility assets of the
incumbent utility consent to the use of eminent domain for
acquisition purposes. + }
SECTION 12. { + Funding of preliminary activities and
negotiations. (1) Following a request by an acquisition review
committee under section 14 of this 2007 Act, the Public Utility
Commission shall transfer from the Public Utility Commission
Account to the Oregon Community Power Utility Acquisition Fund
established under section 13 of this 2007 Act all amounts
necessary to fund any preliminary activities needed to determine:
(a) The appropriateness or desirability of an acquisition
described in sections 1, 2 and 3 to 39 of this 2007 Act;
(b) The requirements and terms of the acquisition; and
(c) Any due diligence activities related to the acquisition and
the negotiations for the acquisition.
(2) Notwithstanding any other provision of law, the commission
may increase the rates of an incumbent utility in order to
recover the costs incurred in negotiating an acquisition by an
acquisition review committee under section 2 (4) of this 2007
Act.
(3) Notwithstanding any other provision of law, the commission
may assess a fee on an incumbent utility in order to fund the
transfer described in subsection (1) of this section. + }
SECTION 13. { + Oregon Community Power Utility Acquisition
Fund. (1) The Oregon Community Power Utility Acquisition Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the Oregon Community Power
Utility Acquisition Fund shall be credited to the Oregon
Community Power Utility Acquisition Fund.
(2) Moneys in the Oregon Community Power Utility Acquisition
Fund are continuously appropriated to the Public Utility
Commission for the purpose of transferring moneys to an
acquisition review committee as described in section 12 of this
2007 Act. + }
SECTION 14. { + Request to Public Utility Commission for
transfer of funds. (1) An acquisition review committee created
under section 2 of this 2007 Act may request that the Public
Utility Commission transfer moneys appropriated under section 13
of this 2007 Act in order to fund any preliminary activities the
committee undertakes to determine:
(a) The appropriateness or desirability of an acquisition
described in sections 1, 2 and 3 to 39 of this 2007 Act;
(b) The requirements and terms of the acquisition; and
(c) Any due diligence activities related to the acquisition and
the negotiations for the acquisition.
(2) An acquisition review committee shall submit a budget and
plan of operations with a request under subsection (1) of this
section. The commission may approve the transfer only after
notice and public hearing on the request. + }
SECTION 15. { + Conduct of business after acquisition. If
Oregon Community Power acquires an incumbent utility under
sections 1, 2 and 3 to 39 of this 2007 Act, all electric utility
operations undertaken by Oregon Community Power after the
acquisition shall be conducted under the name of Oregon Community
Power. + }
SECTION 16. { + Oregon Community Power to be successor in
interest to incumbent utility. (1) If Oregon Community Power
acquires an incumbent utility under sections 1, 2 and 3 to 39 of
this 2007 Act, unless otherwise required by the Oregon
Constitution, Oregon Community Power shall constitute the
Enrolled Senate Bill 443 (SB 443-B) Page 9
successor in interest to the incumbent utility as of the date of
the acquisition for all purposes, including but not limited to:
(a) Allocation of territory and contracts allocating territory;
(b) City franchise fee agreements; and
(c) Contracts or obligations of any nature, to the extent the
contracts or obligations apply to a successor in interest to the
incumbent utility.
(2) Until the board of directors of Oregon Community Power
establishes bylaws governing the procedures for conducting a
ratemaking hearing and establishing rates under sections 1, 2 and
3 to 39 of this 2007 Act and under those procedures establishes
one or more new rates or tariffs or establishes one or more
changes in rates or tariffs, Oregon Community Power shall:
(a) Adopt all existing rate schedules in effect for the
incumbent utility on the date of acquisition;
(b) Adopt the general rules and regulations of the incumbent
utility's tariffs; and
(c) Maintain Oregon Community Power books and records in
accordance with generally accepted accounting principles and with
the uniform system of accounts established by the Federal Energy
Regulatory Commission.
(3) If Oregon Community Power acquires an incumbent utility
under sections 1, 2 and 3 to 39 of this 2007 Act, Oregon
Community Power is subject to all privilege taxes imposed by
municipalities that the incumbent utility was required to pay to
municipalities immediately before the acquisition. + }
SECTION 17. { + Equity and assets of incumbent utility held in
trust; disclaimer of state interest. (1) Any equity of the
incumbent utility, any electric utility assets of the incumbent
utility or any combination of equity and assets of the incumbent
utility that Oregon Community Power acquires under sections 1, 2
and 3 to 39 of this 2007 Act shall be held in trust by Oregon
Community Power, acting as a trustee, for the exclusive purpose
of carrying out the powers, rights and privileges of Oregon
Community Power under sections 1, 2 and 3 to 39 of this 2007 Act
for the benefit of the retail electricity consumers of Oregon
Community Power. Notwithstanding any other provision of law,
retail electricity consumers of Oregon Community Power may not
pursue any judicial remedy in any court of this state for any
action of Oregon Community Power, except as provided in sections
1, 2 and 3 to 39 of this 2007 Act.
(2) The State of Oregon declares that it has no proprietary
interest in Oregon Community Power or in any tangible or
intangible property of any form owned or acquired by Oregon
Community Power. The state disclaims any right to reclaim any
contributions made to Oregon Community Power under sections 1, 2
and 3 to 39 of this 2007 Act.
(3) Except as provided in sections 1, 2 and 3 to 39 of this
2007 Act, Oregon Community Power may not receive any moneys from
the State of Oregon other than:
(a) Electric utility operational revenues;
(b) Public purpose charge revenues under ORS 757.612;
(c) Nonrecourse bond proceeds or proceeds from any other
nonrecourse borrowing; or
(d) Loans, grants, payments or other assistance that any local
government as defined in ORS 174.116 would be eligible to
receive. + }
{ +
(Duties and Powers of Oregon Community Power) + }
Enrolled Senate Bill 443 (SB 443-B) Page 10
SECTION 18. { + Board duties. The principal duties of the
board of directors of Oregon Community Power are to:
(1) Establish policy and develop consistent positions on core
utility issues that promote and implement the primary mission of
Oregon Community Power under section 3 of this 2007 Act;
(2) Oversee the investments and operations of Oregon Community
Power;
(3) Take all actions to ensure that revenues and income from
electric utility operations are sufficient to satisfy all costs,
including principal and interest payments on all outstanding
bonds and other debt obligations issued by Oregon Community
Power, and to maintain financial integrity in the operation of
Oregon Community Power;
(4) Make decisions that are in the best interests of the
consumers and communities within the service territory of Oregon
Community Power and that are consistent with the primary mission
of Oregon Community Power; and
(5) Consider the social, economic and environmental impacts of
electricity generation, transmission and distribution in board
decision-making. + }
SECTION 19. { + Payments in lieu of property taxes. (1) Oregon
Community Power shall make payments in lieu of property taxes on
all property that would otherwise be subject to assessment under
ORS 308.505 to 308.665 if owned by a taxable owner. Oregon
Community Power shall pay to each county in which property of
Oregon Community Power is located an amount equal to the ad
valorem property taxes that would have been charged by the county
if Oregon Community Power property had been assessed to a taxable
owner as of January 1 of the assessment year for which payment is
being made.
(2) The Department of Revenue shall determine the assessed
value of Oregon Community Power property as if the property were
subject to assessment under ORS 308.505 to 308.665, and shall
transmit the value information as provided in ORS 308.505 to
308.665 to the appropriate county assessor. Oregon Community
Power shall comply with property reporting requirements under ORS
308.505 to 308.665 as if the property were subject to assessment
under ORS 308.505 to 308.665.
(3) The amount of the in lieu payment to be made to each county
under this section shall be determined and certified annually by
the county assessor of the county. A notice of the determination
and certification shall be mailed to Oregon Community Power not
later than October 15. The notice shall contain a statement of
the value of the property and a complete explanation of the
method used in computing the amount of the in lieu payment due
under this section. Not later than November 15, Oregon Community
Power shall pay the amount due to each county under this section,
less a discount equivalent to that which is provided in ORS
311.505. Payment shall be made to the county treasurer. The
county treasurer shall distribute the payment to the taxing
districts of the county in accordance with the schedule of
percentages computed under ORS 311.390. + }
SECTION 20. { + Powers of Oregon Community Power. The board of
directors of Oregon Community Power shall establish the policies
of Oregon Community Power to be used in the exercise of the
powers enumerated for Oregon Community Power or the board, and
may thereafter modify those policies. The board may delegate the
exercise of powers enumerated for Oregon Community Power to a
president, chief executive officer or general manager of Oregon
Community Power. Delegated powers shall be exercised by the
Enrolled Senate Bill 443 (SB 443-B) Page 11
delegatee in a manner that is consistent with the policies
established by the board. The powers of Oregon Community Power,
as exercisable by the board of directors or by a president, chief
executive officer or general manager under policies adopted by
the board, are as follows:
(1) To acquire and hold, including by lease-purchase agreement,
real and other property necessary or incident to the business of
Oregon Community Power, within or outside of, or partly within or
partly outside of, the service territory of Oregon Community
Power, and to sell or dispose of that property.
(2) To execute contracts to purchase, sell or lease assets,
power, services or property.
(3) To execute contracts for the management or operation of any
Oregon Community Power facilities.
(4) To issue bonds, notes or otherwise borrow moneys, incur
indebtedness or issue, sell or assume evidence of indebtedness to
the extent allowed under the Oregon Constitution.
(5) To sue and be sued.
(6) To refund and retire any indebtedness that may exist
against or be assumed by Oregon Community Power or that may exist
against the revenues of Oregon Community Power.
(7) To build, acquire, own, operate and maintain generation,
transmission and distribution resources that are sufficient to
maintain an adequate supply of electricity to the service
territory.
(8) To enter into agreements with local governments or other
state agencies or subdivisions of state government.
(9) To periodically develop least-cost plans at regular
intervals. A least-cost plan may be developed only with public
participation. A least-cost plan shall take into consideration
economic and environmental risks of providing adequate and
reliable energy for consumers, energy efficiency, renewable
resources and cogeneration, in order to achieve adequate
resources at the least overall cost.
(10) To oversee all aspects of Oregon Community Power
operations.
(11) To hire and fire employees of Oregon Community Power.
(12) To make contracts, to set wages, to set salaries and
provide compensation for services rendered by employees and by
board members, to provide for life insurance, hospitalization,
disability, health and welfare and retirement plans for employees
and to do all things necessary and convenient for full exercise
of the powers granted in this subsection. The provision of life
insurance, hospitalization, disability, health and welfare and
retirement plans for employees is in addition to any other right
or power of Oregon Community Power to participate in those plans
and does not repeal or modify any statutes except those that may
be in conflict with the provision of life insurance,
hospitalization, disability, health and welfare and retirement
plans.
(13) To enter into contracts with the United States Government,
with any other state, municipality or utility district or with
any other person, for carrying out any provisions of sections 1,
2 and 3 to 39 of this 2007 Act.
(14) To fix, maintain and collect electric energy rates as
prescribed in sections 1, 2 and 3 to 39 of this 2007 Act and to
establish and collect charges for any other commodity or service
furnished, developed or sold by Oregon Community Power.
(15) To construct works across or along any street or public
highway or over any lands that are the property of this state, or
Enrolled Senate Bill 443 (SB 443-B) Page 12
of any city or other subdivision of this state, subject to any
franchise agreement, privilege tax or municipal regulation that
would apply to the works, and to construct works across or along
any stream of water or watercourse. Any works across or along any
state highway shall be constructed only with the permission of
the Department of Transportation. Any works across or along any
county highway shall be constructed only with the permission of
the county governing body. Any works across or along any city
street shall be constructed only with the permission of the city
governing body and upon compliance with applicable city
regulations and payment of any fees called for under applicable
franchise agreements, intergovernmental agreements under ORS
chapter 190 or contracts providing for payment of these
fees. Oregon Community Power shall restore any street or highway
to its former state as near as may be practicable, and may not
use the street or highway in a manner that impairs its usefulness
unnecessarily.
(16) To enter into franchise agreements with cities and pay
fees under negotiated franchise agreements, intergovernmental
agreements under ORS chapter 190 and contracts providing for the
payment of such fees, and to pay privilege taxes imposed under
ORS 221.450 or other applicable privilege taxes.
(17) To exercise the power of eminent domain, as prescribed in
section 11 or 21 of this 2007 Act.
(18) To adopt bylaws as prescribed in section 26 of this 2007
Act.
(19) To make payments in lieu of property taxes as prescribed
in section 19 of this 2007 Act.
(20) To acquire property, execute contracts or otherwise
conduct business with or within the territory of any state or
local government that is outside Oregon, any Indian tribe
wherever located or Canada or any province of Canada.
(21) To execute any contract necessary to acquire, hedge or
sell fuel or energy in any form, to manage electric utility
operations, to construct, maintain or repair any energy
generation or transmission facilities or equipment, to increase
capacity for energy generation or transmission, to transfer any
asset owned by Oregon Community Power or to acquire any asset for
use in electric utility operations conducted by Oregon Community
Power.
(22) To establish any funds or accounts at depository banks or
other financial institutions that are determined to be necessary,
useful or convenient for the conduct of business by Oregon
Community Power.
(23) To take any other actions necessary or convenient for the
proper exercise of the powers granted to Oregon Community Power
by sections 1, 2 and 3 to 39 of this 2007 Act. + }
SECTION 21. { + Eminent domain. (1) Oregon Community Power may
exercise the power of eminent domain for the purpose of acquiring
any property, within or outside the service territory of Oregon
Community Power, necessary for carrying out the electric utility
operations of Oregon Community Power. Oregon Community Power may
use the power of eminent domain to acquire an incumbent utility
pursuant to an agreement under section 2 of this 2007 Act only as
provided by section 11 of this 2007 Act.
(2) Notwithstanding subsection (1) of this section, eminent
domain may not be used:
(a) To acquire service territory of another electric utility;
or
Enrolled Senate Bill 443 (SB 443-B) Page 13
(b) To acquire any property for a purpose that is unrelated to
electric utility operations. + }
{ +
(Rates) + }
SECTION 22. { + Ratemaking. (1) The board of directors of
Oregon Community Power shall establish rates for the provision of
electricity within the service territory of Oregon Community
Power using the procedure set forth under section 23 of this 2007
Act.
(2) The board shall establish a rate structure under which
rates that apply to a specific class of customers are designed to
recover the costs of providing electricity and related services
to that class of customers.
(3) The rates adopted by the board shall be sufficient to
accomplish the following purposes:
(a) To properly maintain and operate all Oregon Community Power
property and facilities;
(b) To recover the overall costs of the electric utility
operations of Oregon Community Power;
(c) To reflect the income tax exempt status of Oregon Community
Power so that the savings from tax exemption accrue to the
benefit of the customers of Oregon Community Power;
(d) To pay all franchise fees, in lieu payments, privilege
taxes and other charges and assessments that are properly imposed
on Oregon Community Power or the property or facilities of Oregon
Community Power;
(e) To pay principal and interest on all bonds, warrants or
other obligations of any character in accordance with the terms
and provisions of the obligations, including but not limited to
bonds issued by Oregon Community Power for an acquisition
described in sections 1, 2 and 3 to 39 of this 2007 Act;
(f) To pay any other indebtedness or obligation for which
Oregon Community Power may be obligated to pay;
(g) To pay any debt administration costs associated with bonds,
warrants, obligations or other indebtedness described in
paragraphs (e) and (f) of this subsection;
(h) To fund operating reserves in sufficient amounts to ensure
the continued efficient operation of Oregon Community Power; and
(i) To establish and maintain any special funds that Oregon
Community Power is obligated to create for the purpose of paying
bond issues or other obligations. + }
SECTION 23. { + Notice of ratemaking; ratemaking hearings. (1)
Whenever the board of directors of Oregon Community Power
determines to seek a modification in any rate imposed by the
board for electricity service, the board shall give notice of a
ratemaking hearing, at least 30 days in advance, as follows:
(a) In newspapers of general circulation that are published in
the service territory;
(b) As a separate insert accompanying billing statements sent
to customers;
(c) To persons that have requested notice of ratemaking action
by the board; and
(d) By publication on the Oregon Community Power website.
(2) The notice shall state:
(a) The date, time and location of the ratemaking hearing of
the board;
(b) The new rates or modifications to existing rates being
proposed by the board; and
Enrolled Senate Bill 443 (SB 443-B) Page 14
(c) Any other information deemed relevant by the board.
(3) At the time that the board issues a notice of a ratemaking
hearing, the board shall publish on the Oregon Community Power
website or otherwise make available to the public the underlying
utility information upon which the proposed rates are based. The
board shall provide the specific information required by bylaws
adopted under section 26 (1) of this 2007 Act.
(4)(a) Pursuant to ORS 183.625, the board shall request, and
the Office of Administrative Hearings shall assign, an
administrative law judge to conduct the ratemaking hearing. The
ratemaking hearing shall be conducted under ratemaking hearing
procedures established by bylaws adopted under section 26 (2) of
this 2007 Act. The hearing shall be conducted in a manner that
allows interested parties to present information and argument and
to establish a record upon which the board may establish or
modify rates pursuant to section 22 of this 2007 Act.
(b) The administrative law judge shall ensure that the rates
established at the ratemaking hearing are sufficient to
accomplish all of the purposes described in section 22 (3) of
this 2007 Act.
(5) Notwithstanding section 4 of this 2007 Act, a decision by
the board to establish or modify rates may be appealed as a
contested case under ORS chapter 183. + }
{ +
(Participation by Citizens' Utility Board) + }
SECTION 24. { + (1) Whenever the Citizens' Utility Board of
Governors determines that an Oregon Community Power proceeding
may affect the interests of utility consumers, the Citizens'
Utility Board may intervene as of right as an interested party or
otherwise participate in the proceeding.
(2) The Citizens' Utility Board shall have standing to obtain
judicial or administrative review of any action of Oregon
Community Power, and may intervene as of right as an interested
party or otherwise participate in any proceeding that involves
the review or enforcement of any action by Oregon Community
Power, if the Citizens' Utility Board of Governors determines
that the action may affect the interests of utility
consumers. + }
{ +
(Audits) + }
SECTION 25. { + The board of directors of Oregon Community
Power shall cause an independent audit to be performed at least
annually. The audit shall review and report on the financial
affairs of Oregon Community Power and on any other aspects of
Oregon Community Power as the board may direct. + }
{ +
(Bylaws) + }
SECTION 26. { + The board of directors of Oregon Community
Power may adopt bylaws necessary to administer sections 1, 2 and
3 to 39 of this 2007 Act, including but not limited to:
(1) Bylaws establishing the information the board must make
available to the public prior to conducting a ratemaking hearing.
Enrolled Senate Bill 443 (SB 443-B) Page 15
(2) Bylaws establishing procedures for conducting a ratemaking
hearing that provide for substantially the same procedures as set
forth in ORS 183.415, 183.425, 183.440 and 183.450.
(3) Bylaws to facilitate the implementation of the primary
mission of Oregon Community Power under section 3 of this 2007
Act. + }
{ +
ELECTRICITY FROM BONNEVILLE POWER ADMINISTRATION + }
SECTION 27. { + (1) The Legislative Assembly declares that it
is the policy of the State of Oregon to:
(a) Ensure that the formation and operation of Oregon Community
Power does not directly or indirectly diminish the amount of
federal electric power available for purchase by consumer-owned
utilities to serve their retail electricity consumers;
(b) Ensure that the formation and operation of Oregon Community
Power does not, directly or indirectly, increase the lowest
cost-based rates charged by the Bonneville Power Administration
to consumer-owned utilities for the purchase of federal electric
power above the level that would most likely have been charged
absent the formation and operation of Oregon Community Power;
(c) Preserve the existing exclusive distribution rights of
consumer-owned utilities;
(d) Ensure the preservation of contract rights currently
existing between consumer-owned utilities and an incumbent
utility;
(e) Preserve the authority of cities to impose franchise fees
and privilege taxes and to execute contracts with Oregon
Community Power; and
(f) Ensure that Oregon Community Power has access to benefits
from the Bonneville Power Administration, as mandated by the
federal Pacific Northwest Electric Power Planning and
Conservation Act, that are equivalent to the benefits received by
the incumbent utility at the time the utility is acquired by
Oregon Community Power.
(2) As used in this section, 'federal electric power' means
electricity generated, distributed or sold by the Bonneville
Power Administration. + }
{ +
DIRECT ACCESS + }
SECTION 28. { + Definitions. As used in sections 28 to 33 of
this 2007 Act:
(1) 'Ancillary services' has the meaning given that term in ORS
757.600.
(2) 'Direct access' means the ability of a retail electricity
consumer to purchase electricity and ancillary services, as
determined by the board of directors of Oregon Community Power,
directly from an entity other than Oregon Community Power.
(3) 'Economic utility investment' means all investments,
including plants and equipment and contractual or other legal
obligations, made by Oregon Community Power and properly
dedicated to generation or conservation, the full benefits of
which are no longer available to consumers as a result of
electing direct access, absent transition credits.
(4) 'Electricity,' 'electricity services' and ' electricity
service supplier' have the meanings given those terms in ORS
757.600.
Enrolled Senate Bill 443 (SB 443-B) Page 16
(5) 'Nonresidential electricity consumer' means a retail
electricity consumer that is not a residential electricity
consumer.
(6) 'Portfolio access' means the ability of a retail
electricity consumer to choose from a set of product and pricing
options for electricity determined by the board and may include
product and pricing options offered by Oregon Community Power or
by an electricity service supplier.
(7) 'Retail electricity consumer' means the end user of
electricity for specific purposes that is served through the
distribution system of Oregon Community Power, whether or not the
end user purchases the electricity from Oregon Community Power.
(8) 'Transition charge' and 'transition credit' have the
meanings given those terms in ORS 757.600.
(9) 'Uneconomic utility investment' means all investments,
including plants and equipment and contractual or other legal
obligations, made by Oregon Community Power and properly
dedicated to generation, conservation and workforce commitments,
the full costs of which are no longer recoverable as a result of
direct access, absent transition charges. + }
SECTION 29. { + Oregon Community Power required to allow
direct access. (1) Oregon Community Power shall allow
nonresidential electricity consumers direct access.
(2) Unless the board of directors of Oregon Community Power
determines otherwise, Oregon Community Power shall provide all
retail electricity consumers of Oregon Community Power with a
regulated, cost-of-service rate option.
(3)(a) Oregon Community Power shall supply default electricity
service to a nonresidential electricity consumer in an emergency.
(b) The board shall establish reasonable terms and conditions
for providing default service to a nonresidential electricity
consumer in circumstances in which the consumer is receiving
electricity services through direct access and elects instead to
receive electricity services through the default service.
(4)(a) Oregon Community Power shall permit retail electricity
consumers that are eligible for direct access to voluntarily
aggregate their electricity loads.
(b) A retail electricity consumer that is eligible for direct
access may voluntarily aggregate its electricity load with the
electricity load of any other retail electricity consumer that is
eligible for direct access. + }
SECTION 30. { + Rights of electricity service suppliers. (1)
Every electricity service supplier is authorized to use the
distribution facilities of Oregon Community Power on a
nondiscriminatory basis.
(2) Oregon Community Power shall provide:
(a) Electricity service suppliers and retail electricity
consumers access to the Oregon Community Power transmission
facilities and distribution system that is comparable to that
provided for Oregon Community Power's own use; and
(b) Electricity service suppliers and retail electricity
consumers timely access to information about the Oregon Community
Power transmission facilities and distribution system, metering
and loads comparable to that provided to Oregon Community Power's
own nondistribution divisions, affiliates and related parties.
(3) Oregon Community Power shall allow any electricity service
supplier that has been certified by the Public Utility Commission
to provide direct access to nonresidential electricity
consumers. + }
Enrolled Senate Bill 443 (SB 443-B) Page 17
SECTION 31. { + Transition credits and charges. (1) Each
retail electricity consumer of Oregon Community Power shall
receive a transition credit or pay a transition charge as
determined under this section.
(2) The total of all transition credits or transition charges
shall equal the net value of all economic utility investments and
all uneconomic utility investments of Oregon Community Power.
(3) The board of directors of Oregon Community Power shall
adopt one of the following methods to establish the net value
described under subsection (2) of this section and all procedures
connected with the adopted method:
(a) Auction;
(b) Administrative valuation; or
(c) Ongoing valuation.
(4) The transition credit or transition charge that applies to
a retail electricity consumer under this section may change to
reflect the duration of the service option chosen by the
consumer, but may not be changed because of the electricity
service supplier chosen by the consumer. + }
SECTION 32. { + Portfolio access to electricity service
providers. The board of directors of Oregon Community Power shall
determine whether and under what conditions Oregon Community
Power will offer retail electricity consumers portfolio access to
electricity service suppliers. The board shall have sole
authority to determine:
(1) The quality and nature of electricity services, including
but not limited to different product and pricing options, that
will be made available to its retail electricity consumers.
(2) The extent to which products and services will be unbundled
and the rates, tariffs, terms and conditions on which they may be
offered.
(3) Whether one or more pilot programs for direct access,
portfolio access or other forms of access to alternative
suppliers will be offered.
(4) The degree to which provision of portfolio access
necessitates modification of transition credits, transition
charges and the net value described in section 31 (2) of this
2007 Act on which transition credits or transition charges are
based.
(5) The establishment of technical capability requirements,
financial responsibility requirements and other protections for
retail electricity consumers located within the Oregon Community
Power service territory in dealings with electricity service
suppliers.
(6) Access to or use of the Oregon Community Power transmission
facilities or distribution system by retail electricity consumers
or electricity service suppliers.
(7) Oregon Community Power's qualification standards for
electricity service suppliers in addition to any certification
standards established by the Public Utility Commission, provided
that the qualification standards are uniformly applied to
electricity service suppliers in a nondiscriminatory manner. + }
{ +
CONSUMER-OWNED UTILITIES + }
SECTION 33. { + Distribution rights; service territories. (1)
Notwithstanding any other provision of law, a consumer-owned
utility has exclusive distribution rights, to the extent the
distribution rights are provided by law other than sections 1, 2
Enrolled Senate Bill 443 (SB 443-B) Page 18
and 3 to 39 of this 2007 Act, and exclusive responsibility for
the performance and oversight of:
(a) The utility's distribution system, including the
acquisition, construction, financing, operation and maintenance
of distribution facilities; and
(b) Metering, billing, collection and consumer response
functions related to the distribution of electricity to retail
electricity consumers located within the utility's service
territory.
(2) Sections 1, 2 and 3 to 39 of this 2007 Act do not:
(a) Diminish or enlarge the rights of any person under ORS
758.400 to 758.475; or
(b) Affect the administration or enforcement of ORS 758.400 to
758.475. + }
{ +
FINANCING AGREEMENTS + }
SECTION 34. { + As used in sections 34 to 38 of this 2007 Act:
(1) 'Credit enhancement agreement' means any agreement or
contractual relationship between Oregon Community Power and any
bank, trust company, insurance company, surety bonding company,
pension fund or other financial institution providing additional
credit on or security for a financing agreement or certificates
of participation authorized by sections 34 to 38 of this 2007
Act.
(2) 'Financing agreement' means a bond, installment sale
agreement, loan agreement, note, note agreement, short-term
promissory note, commercial paper, line of credit or similar
obligation or any other agreement to finance real or personal
property, tangible or intangible, that is or will be owned and
operated by Oregon Community Power, to otherwise borrow money, or
to refinance previously executed financing agreements. + }
SECTION 35. { + (1) Oregon Community Power may enter into
financing agreements in accordance with sections 34 to 38 of this
2007 Act upon such terms as the board of directors of Oregon
Community Power determines to be necessary or desirable. Amounts
payable by Oregon Community Power under a financing agreement
shall be limited to funds specifically pledged, budgeted for or
otherwise made available by Oregon Community Power. If there are
insufficient available funds to pay amounts due under a financing
agreement, the lender may exercise any property rights that
Oregon Community Power has granted to the lender in the financing
agreement against the property that was purchased with the
proceeds of the financing agreement, and may apply the amounts so
received toward payments scheduled to be made by Oregon Community
Power under the financing agreement.
(2) Oregon Community Power may enter into a financing agreement
only following adoption by the board of directors of a resolution
authorizing the execution of the financing agreement or a series
of similar financing agreements.
(3) Any obligation of any kind incurred by Oregon Community
Power shall state on its face that it is solely an obligation of
Oregon Community Power. + }
SECTION 36. { + The board of directors of Oregon Community
Power may delegate to any board member, or to the chief executive
officer, president, general manager or chief financial officer of
Oregon Community Power, the authority to determine maturity
dates, principal amounts, redemption provisions, interest rates
or methods for determining variable or adjustable interest rates,
Enrolled Senate Bill 443 (SB 443-B) Page 19
denominations, methods of sale, agreements for the exchange of
interest rates as an issuer under ORS 287.025 and other terms and
conditions of a financing agreement that are not appropriately
determined at the time of enactment or adoption of a resolution
authorizing the execution of the financing agreement. The board
may also delegate entering into a financing agreement or any
other instrument authorized by law. This delegated authority
shall be exercised subject to applicable requirements of law and
any limitations and criteria as may be set forth in the
resolution authorizing the execution of a financing agreement or
in Oregon Community Power bylaws. + }
SECTION 37. { + Oregon Community Power may:
(1) Enter into agreements with third parties to hold financing
agreement proceeds, payments and reserves as security for
lenders, and to issue certificates of participation in the right
to receive payments due from Oregon Community Power under a
financing agreement. Amounts so held shall be invested at the
direction of the board of directors of Oregon Community Power.
Interest earned on any investments held as security for a
financing agreement may, at the option of the board, be credited
to the accounts held by the third party and applied in payment of
sums due under a financing agreement.
(2) Enter into credit enhancement agreements for financing
agreements or certificates of participation, provided that any
credit enhancement agreements shall be payable solely from funds
specifically pledged, budgeted for or otherwise made available by
Oregon Community Power and amounts received from the exercise of
property rights granted under the financing agreements.
(3) Use financing agreements to finance the costs of acquiring
or refinancing real or personal property, either tangible or
intangible, plus the costs of reserves and credit enhancements
and the costs associated with obtaining the financing.
(4) Grant security interests in property to trustees or
lenders.
(5) Make pledges for the benefit of trustees and lenders.
(6) Purchase fire and extended coverage or other casualty
insurance for property that is acquired or refinanced with
proceeds of a financing agreement, assign the proceeds thereof to
a lender or trustee to the extent of their interest, and covenant
to maintain any insurance while the financing agreement is
unpaid, as long as available funds are sufficient to purchase the
insurance. + }
SECTION 38. { + Oregon Community Power may consult with and
obtain advice from the State Treasurer on proposed or executed
financing agreements. The State Treasurer may recover from Oregon
Community Power any costs incurred by the State Treasurer in
providing consultation and advice. + }
{ +
REVENUE BONDS + }
SECTION 39. { + (1) Oregon Community Power may issue and sell
revenue bonds in accordance with the provisions of the Uniform
Revenue Bond Act under ORS 288.805 to 288.945. However, ORS
288.815 does not apply to revenue bonds issued by Oregon
Community Power. Revenue bonds issued by Oregon Community Power
may not be a general obligation of Oregon Community Power and may
not be a charge upon any revenues or property of Oregon Community
Power that is not specifically pledged thereto. Any obligation of
any kind incurred by Oregon Community Power under ORS 288.805 to
Enrolled Senate Bill 443 (SB 443-B) Page 20
288.945 is not, and may not be considered, an indebtedness of the
State of Oregon.
(2) Revenue bonds or other financing agreements issued by
Oregon Community Power pursuant to ORS 288.805 to 288.945 shall
be considered to be bonds or obligations of a political
subdivision of the State of Oregon for the purposes of all laws
of this state. + }
{ +
MUNICIPAL PRIVILEGE TAX + }
SECTION 40. ORS 221.420 is amended to read:
221.420. (1) As used in this section:
(a) 'Public utility' has the meaning for that term provided in
ORS 757.005.
(b) 'Commission' means the Public Utility Commission of Oregon.
(c) 'Council' means the common council, city council,
commission or any other governing body of any municipality
wherein the property of the public utility is located.
(d) 'Municipality' means any town, city or other municipal
government wherein property of the public utility is located.
(e) 'Service' is used in its broadest and most inclusive sense
and includes equipment and facilities.
(f) 'Heating company' means any person furnishing heat but not
electricity or natural gas to its customers.
(2) Every city may:
(a) Determine by contract or prescribe by ordinance or
otherwise, the terms and conditions, including payment of charges
and fees, upon which any public utility, electric cooperative,
people's utility district or heating company { + , or Oregon
Community Power, + } may be permitted to occupy the streets,
highways or other public property within such city and exclude or
eject any public utility or heating company therefrom.
(b) Require any public utility, by ordinance or otherwise, to
make such modifications, additions and extensions to its physical
equipment, facilities or plant or service within such city as
shall be reasonable or necessary in the interest of the public,
and designate the location and nature of all additions and
extensions, the time within which they must be completed, and all
conditions under which they must be constructed.
(c) Fix by contract, prescribe by ordinance, or in any other
lawful manner, the rates, charges or tolls to be paid to, or that
may be collected by, any public utility or the quality and
character of each kind of product or service to be furnished or
rendered by any public utility furnishing any product or service
within such city. No schedule of rates, charges or tolls, fixed
in the manner provided in this paragraph, shall be so fixed for a
longer period than five years. Whenever it is proposed by any
city to enter into any contract, or to enact any ordinance, or
other municipal law or regulation concerning the matters
specified in this paragraph, a copy of such proposed contract,
ordinance or other municipal law or resolution shall be filed
with the Public Utility Commission of Oregon before the same may
be lawfully signed or enacted, as the case may be, and the
commission shall thereafter have 90 days within which to examine
into the terms thereof. If the commission is of the opinion that
in any respect the provisions of the proposed contract, ordinance
or other municipal law or resolution are not in the public
interest, the commission shall file, in writing, with the clerk
or other officer who has the custody of the files and records of
Enrolled Senate Bill 443 (SB 443-B) Page 21
the city, the commission's reasons therefor. If the objections
are filed within said period of 90 days, no proposed contract,
ordinance or other municipal law or regulation shall be valid or
go into effect until it has been submitted to or ratified by the
vote of the electors of the city. Unless and until a city
exercises its powers as provided in this paragraph, the
commission is vested with all powers with respect to the matters
specified in this paragraph. If the schedule of rates, charges
and tolls or the quality and character of each kind of product or
service is fixed by contract, ordinance or other municipal law or
regulation and in the manner provided in this paragraph, the
commission has no power or jurisdiction to interfere with, modify
or change it during the period fixed thereby. Upon the expiration
of said period such powers shall again be vested in the
commission, to be exercised by the commission unless and until a
new schedule of rates or the quality and character for such
service or product is fixed or prescribed by contract, ordinance
or other municipal law or regulation in the manner provided in
this paragraph.
(d) Provide for a penalty for noncompliance with the provisions
of any charter provision, ordinance or resolution adopted by the
city in furtherance of the powers specified in this subsection.
SECTION 41. ORS 221.450 is amended to read:
221.450. Except as provided in ORS 221.655, the city council or
other governing body of every incorporated city may levy and
collect { + a privilege tax + } from { + Oregon Community Power
and from + } every electric cooperative, people's utility
district, privately owned public utility, telecommunications
carrier as defined in ORS 133.721 or heating company { + . The
privilege tax may be collected only if the entity is + }
operating for a period of 30 days within the city without a
franchise from the city and actually using the streets, alleys or
highways, or all of them, in such city for other than travel on
such streets or highways { - , a privilege tax - } { + . The
privilege tax shall be + } for the use of those public streets,
alleys or highways, or all of them, in such city in an amount not
exceeding five percent of the gross revenues of the cooperative,
utility, district or company currently earned within the boundary
of the city. However, the gross revenues earned in interstate
commerce or on the business of the United States Government shall
be exempt from the provisions of this section. The privilege tax
authorized in this section shall be for each year, or part of
each year, such utility, cooperative, district or company { + ,
or Oregon Community Power, + } operates without a franchise.
SECTION 42. { + Sections 1, 2 and 3 to 39 of this 2007 Act do
not diminish, or authorize the adoption of rules that diminish,
the authority of a city to control the use of the city's rights
of way or to collect license fees, privilege taxes, rent or other
charges for the use of the rights of way of the city. + }
{ +
PUBLIC PURPOSE CHARGE + }
SECTION 43. ORS 757.612 is amended to read:
757.612. (1) There is established an annual public purpose
expenditure standard for electric companies { + and Oregon
Community Power + } to fund new cost-effective local energy
conservation, new market transformation efforts, the above-market
costs of new renewable energy resources and new low-income
weatherization. The public purpose expenditure standard shall be
Enrolled Senate Bill 443 (SB 443-B) Page 22
funded by the public purpose charge described in subsection (2)
of this section.
(2)(a) Beginning on the date an electric company { + or Oregon
Community Power + } offers direct access to its retail
electricity consumers, except residential electricity consumers,
the electric company { + or Oregon Community Power + }shall
collect a public purpose charge from all of the retail
electricity consumers located within its service area for a
period of 10 years. Except as provided in paragraph (b) of this
subsection, the public purpose charge shall be equal to three
percent of the total revenues collected by the electric
company { + , Oregon Community Power + } or { + the + }
electricity service supplier from its retail electricity
consumers for electricity services, distribution, ancillary
services, metering and billing, transition charges and other
types of costs included in electric rates on July 23, 1999.
(b) For an aluminum plant that averages more than 100 average
megawatts of electricity use per year, beginning on March 1,
2002, the electric company { + or Oregon Community Power + }
whose territory abuts the greatest percentage of the site of the
aluminum plant shall collect from the aluminum company a public
purpose charge equal to one percent of the total revenue from the
sale of electricity services to the aluminum plant from any
source.
(3)(a) The Public Utility Commission shall establish rules
implementing the provisions of this section relating to electric
companies { + and Oregon Community Power + }.
(b) Subject to paragraph (e) of this subsection, funds
collected by an electric company { + or Oregon Community
Power + } through public purpose charges shall be allocated as
follows:
(A) Sixty-three percent for new cost-effective conservation and
new market transformation.
(B) Nineteen percent for the above-market costs of new
renewable energy resources.
(C) Thirteen percent for new low-income weatherization.
(D) Five percent shall be transferred to the Housing and
Community Services Department Revolving Account created under ORS
456.574 and used for the purpose of providing grants as described
in ORS 458.625 (2). Moneys deposited in the account under this
subparagraph are continuously appropriated to the Housing and
Community Services Department for the purposes of ORS 458.625
(2). Interest on moneys deposited in the account under this
subparagraph shall accrue to the account.
(c) The costs of administering subsections (1) to (6) of this
section for an electric company { + or Oregon Community
Power + } shall be paid out of the funds collected through public
purpose charges. The commission may require that an electric
company { + or Oregon Community Power + } direct funds collected
through public purpose charges to the state agencies responsible
for implementing subsections (1) to (6) of this section in order
to pay the costs of administering such responsibilities.
(d) The commission shall direct the manner in which public
purpose charges are collected and spent by an electric company
{ + or Oregon Community Power + } and may require an electric
company { + or Oregon Community Power + } to expend funds
through competitive bids or other means designed to encourage
competition, except that funds dedicated for low-income
weatherization shall be directed to the Housing and Community
Services Department as provided in subsection (7) of this
Enrolled Senate Bill 443 (SB 443-B) Page 23
section. The commission may also direct that funds collected by
an electric company { + or Oregon Community Power + } through
public purpose charges be paid to a nongovernmental entity for
investment in public purposes described in subsection (1) of this
section. Notwithstanding any other provision of this subsection
{ - , - } { + :
(A) + } At least 80 percent of the funds allocated for
conservation shall be spent within the service area of the
electric company that collected the funds { - . - } { + ; or
(B) If Oregon Community Power collected the funds, at least 80
percent of the funds allocated for conservation shall be spent
within the service area of Oregon Community Power. + }
(e)(A) The first 10 percent of the funds collected annually by
an electric company { + or Oregon Community Power + } under
subsection (2) of this section shall be distributed to education
service districts, as described in ORS 334.010, that are located
in the service territory of the electric company { + or Oregon
Community Power + }. The funds shall be distributed to individual
education service districts according to the weighted average
daily membership (ADMw) of the component school districts of the
education service district for the prior fiscal year as
calculated under ORS 327.013. The commission shall establish by
rule a methodology for distributing a proportionate share of
funds under this paragraph to education service districts that
are only partially located in the service territory of the
electric company { + or Oregon Community Power + }.
(B) An education service district that receives funds under
this paragraph shall use the funds first to pay for energy audits
for school districts located within the education service
district. An education service district may not expend additional
funds received under this paragraph on a school district facility
until an energy audit has been completed for that school
district. To the extent practicable, an education service
district shall coordinate with the State Department of Energy and
incorporate federal funding in complying with this paragraph.
Following completion of an energy audit for an individual school
district, the education service district may expend funds
received under this paragraph to implement the energy audit. Once
an energy audit has been conducted and completely implemented for
each school district within the education service district, the
education service district may expend funds received under this
paragraph for any of the following purposes:
(i) Conducting energy audits. A school district shall conduct
an energy audit prior to expending funds on any other purpose
authorized under this paragraph unless the school district has
performed an energy audit within the three years immediately
prior to receiving the funds.
(ii) Weatherization and upgrading the energy efficiency of
school district facilities.
(iii) Energy conservation education programs.
(iv) Purchasing electricity from environmentally focused
sources and investing in renewable energy resources.
(f) The commission may establish a different public purpose
charge than the public purpose charge otherwise described in
subsection (2) of this section for an individual retail
electricity consumer or any class of retail electricity consumers
located within the service area of an electric company { + or
Oregon Community Power + }, provided that a retail electricity
consumer with a load greater than one average megawatt is not
Enrolled Senate Bill 443 (SB 443-B) Page 24
required to pay a public purpose charge in excess of three
percent of its total cost of electricity services.
(g) The commission shall remove from the rates of each electric
company any costs for public purposes described in subsection (1)
of this section that are included in rates. A rate adjustment
under this paragraph shall be effective on the date that the
electric company begins collecting public purpose charges. { +
Oregon Community Power shall adhere to tariffs that were in
existence on the date Oregon Community Power acquired an
incumbent utility under sections 1, 2 and 3 to 39 of this 2007
Act, or the electric utility assets of the investor-owned
utility, and that were designed to remove costs for public
purposes from the rates. + }
(4) { + (a) + } An electric company that satisfies its
obligations under this section shall have no further obligation
to invest in conservation, new market transformation, new
renewable energy resources or new low-income weatherization or to
provide a commercial energy conservation services program and is
not subject to ORS 469.631 to 469.645, 469.860 to 469.900 and
758.505 to 758.555.
{ + (b) Oregon Community Power, for any period during which
Oregon Community Power collects a public purpose charge under
subsection (2) of this section:
(A) Shall have no other obligation to invest in conservation,
new market transformation, new renewable energy resources or new
low-income weatherization or to provide a commercial energy
conservation services program; and
(B) Is not subject to ORS 469.631 to 469.645, 469.860 to
469.900 and 758.505 to 758.555. + }
(5)(a) A retail electricity consumer that uses more than one
average megawatt of electricity at any site in the prior year
shall receive a credit against public purpose charges billed by
an electric company { + or Oregon Community Power + } for that
site. The amount of the credit shall be equal to the total amount
of qualifying expenditures for new energy conservation, not to
exceed 68 percent of the annual public purpose charges, and the
above-market costs of purchases of new renewable energy resources
incurred by the retail electricity consumer, not to exceed 19
percent of the annual public purpose charges, less administration
costs incurred under this subsection. The credit may not exceed,
on an annual basis, the lesser of:
(A) The amount of the retail electricity consumer's qualifying
expenditures; or
(B) The portion of the public purpose charge billed to the
retail electricity consumer that is dedicated to new energy
conservation, new market transformation or the above-market costs
of new renewable energy resources.
(b) To obtain a credit under this subsection, a retail
electricity consumer shall file with the State Department of
Energy a description of the proposed conservation project or new
renewable energy resource and a declaration that the retail
electricity consumer plans to incur the qualifying expenditure.
The State Department of Energy shall issue a notice of
precertification within 30 days of receipt of the filing, if such
filing is consistent with this subsection. The credit may be
taken after a retail electricity consumer provides a letter from
a certified public accountant to the State Department of Energy
verifying that the precertified qualifying expenditure has been
made.
Enrolled Senate Bill 443 (SB 443-B) Page 25
(c) Credits earned by a retail electricity consumer as a result
of qualifying expenditures that are not used in one year may be
carried forward for use in subsequent years.
(d)(A) A retail electricity consumer that uses more than one
average megawatt of electricity at any site in the prior year may
request that the State Department of Energy hire an independent
auditor to assess the potential for conservation investments at
the site. If the independent auditor determines there is no
available conservation measure at the site that would have a
simple payback of one to 10 years, the retail electricity
consumer shall be relieved of 54 percent of its payment
obligation for public purpose charges related to the site. If the
independent auditor determines that there are potential
conservation measures available at the site, the retail
electricity consumer shall be entitled to a credit against public
purpose charges related to the site equal to 54 percent of the
public purpose charges less the estimated cost of available
conservation measures.
(B) A retail electricity consumer shall be entitled each year
to the credit described in this subsection unless a subsequent
independent audit determines that new conservation investment
opportunities are available. The State Department of Energy may
require that a new independent audit be performed on the site to
determine whether new conservation measures are available,
provided that the independent audits shall occur no more than
once every two years.
(C) The retail electricity consumer shall pay the cost of the
independent audits described in this subsection.
(6) Electric utilities and retail electricity consumers shall
receive a fair and reasonable credit for the public purpose
expenditures of their energy suppliers. The State Department of
Energy shall adopt rules to determine eligible expenditures and
the methodology by which such credits are accounted for and used.
The rules also shall adopt methods to account for eligible public
purpose expenditures made through consortia or collaborative
projects.
(7)(a) In addition to the public purpose charge provided under
subsection (2) of this section, beginning on October 1, 2001, an
electric company { + or Oregon Community Power + } shall collect
funds for low-income electric bill payment assistance in an
amount determined under paragraph (b) of this subsection.
(b) The total amount collected for low-income electric bill
payment assistance under this section shall be $10 million per
year. The commission shall determine each electric company's
proportionate share of the total amount { + and Oregon Community
Power's proportionate share of the total amount + }. The
commission shall determine the amount to be collected from a
retail electricity consumer, except that a retail electricity
consumer is not required to pay more than $500 per month per site
for low-income electric bill payment assistance.
(c) Funds collected by the low-income electric bill payment
assistance charge shall be paid into the Housing and Community
Services Department Revolving Account created under ORS 456.574.
Moneys deposited in the account under this paragraph are
continuously appropriated to the Housing and Community Services
Department for the purpose of funding low-income electric bill
payment assistance. Interest earned on moneys deposited in the
account under this paragraph shall accrue to the account. The
department's cost of administering this subsection shall be paid
out of funds collected by the low-income electric bill payment
Enrolled Senate Bill 443 (SB 443-B) Page 26
assistance charge. Moneys deposited in the account under this
paragraph shall be expended solely for low-income electric bill
payment assistance. Funds collected from an electric company
{ + or Oregon Community Power + } shall be expended in the
service area of the electric company { + or Oregon Community
Power + } from which the funds are collected.
(d) The Housing and Community Services Department, in
consultation with the federal Advisory Committee on Energy, shall
determine the manner in which funds collected under this
subsection will be allocated by the department to energy
assistance program providers for the purpose of providing
low-income bill payment and crisis assistance, including programs
that effectively reduce service disconnections and related costs
to retail electricity consumers and electric utilities. Priority
assistance shall be directed to low-income electricity consumers
who are in danger of having their electricity service
disconnected.
(e) Notwithstanding ORS 293.140, interest on moneys deposited
in the Housing and Community Services Department Revolving
Account under this subsection shall accrue to the account and may
be used to provide heating bill payment and crisis assistance to
electricity consumers whose primary source of heat is not
electricity.
(f) Notwithstanding ORS 757.310, the commission may allow an
electric company { + or Oregon Community Power + } to provide
reduced rates or other payment or crisis assistance or low-income
program assistance to a low-income household eligible for
assistance under the federal Low Income Home Energy Assistance
Act of 1981, as amended and in effect on July 23, 1999.
(8) For purposes of this section, 'retail electricity
consumers' includes any direct service industrial consumer that
purchases electricity without purchasing distribution services
from the electric utility.
{ + (9) For purposes of this section, amounts collected by
Oregon Community Power through public purpose charges are not
considered moneys received from electric utility operations. + }
SECTION 43a. { + If Senate Bill 838 becomes law, section 43 of
this 2007 Act (amending ORS 757.612) is repealed and ORS 757.612,
as amended by section 27, chapter 301, Oregon Laws 2007 (Enrolled
Senate Bill 838), is amended to read: + }
757.612. (1) There is established an annual public purpose
expenditure standard for electric companies { + and Oregon
Community Power + } to fund new cost-effective local energy
conservation, new market transformation efforts, the above-market
costs of new renewable energy resources and new low-income
weatherization. The public purpose expenditure standard shall be
funded by the public purpose charge described in subsection (2)
of this section.
(2)(a) Beginning on the date an electric company { + or Oregon
Community Power + } offers direct access to its retail
electricity consumers, except residential electricity consumers,
the electric company { + or Oregon Community Power + }shall
collect a public purpose charge from all of the retail
electricity consumers located within its service area until
January 1, 2026. Except as provided in paragraph (b) of this
subsection, the public purpose charge shall be equal to three
percent of the total revenues collected by the electric
company { + , Oregon Community Power + } or { + the + }
electricity service supplier from its retail electricity
consumers for electricity services, distribution, ancillary
Enrolled Senate Bill 443 (SB 443-B) Page 27
services, metering and billing, transition charges and other
types of costs included in electric rates on July 23, 1999.
(b) For an aluminum plant that averages more than 100 average
megawatts of electricity use per year, beginning on March 1,
2002, the electric company { + or Oregon Community Power + }
whose territory abuts the greatest percentage of the site of the
aluminum plant shall collect from the aluminum company a public
purpose charge equal to one percent of the total revenue from the
sale of electricity services to the aluminum plant from any
source.
(3)(a) The Public Utility Commission shall establish rules
implementing the provisions of this section relating to electric
companies { + and Oregon Community Power + }.
(b) Subject to paragraph (e) of this subsection, funds
collected by an electric company { + or Oregon Community
Power + } through public purpose charges shall be allocated as
follows:
(A) Sixty-three percent for new cost-effective conservation and
new market transformation.
(B) Nineteen percent for the above-market costs of constructing
and operating new renewable energy resources with a nominal
electric generating capacity, as defined in ORS 469.300, of 20
megawatts or less.
(C) Thirteen percent for new low-income weatherization.
(D) Five percent shall be transferred to the Housing and
Community Services Department Revolving Account created under ORS
456.574 and used for the purpose of providing grants as described
in ORS 458.625 (2). Moneys deposited in the account under this
subparagraph are continuously appropriated to the Housing and
Community Services Department for the purposes of ORS 458.625
(2). Interest on moneys deposited in the account under this
subparagraph shall accrue to the account.
(c) The costs of administering subsections (1) to (6) of this
section for an electric company { + or Oregon Community
Power + } shall be paid out of the funds collected through public
purpose charges. The commission may require that an electric
company { + or Oregon Community Power + } direct funds collected
through public purpose charges to the state agencies responsible
for implementing subsections (1) to (6) of this section in order
to pay the costs of administering such responsibilities.
(d) The commission shall direct the manner in which public
purpose charges are collected and spent by an electric company
{ + or Oregon Community Power + } and may require an electric
company { + or Oregon Community Power + } to expend funds
through competitive bids or other means designed to encourage
competition, except that funds dedicated for low-income
weatherization shall be directed to the Housing and Community
Services Department as provided in subsection (7) of this
section. The commission may also direct that funds collected by
an electric company { + or Oregon Community Power + } through
public purpose charges be paid to a nongovernmental entity for
investment in public purposes described in subsection (1) of this
section. Notwithstanding any other provision of this subsection
{ - , - } { + :
(A) + } At least 80 percent of the funds allocated for
conservation shall be spent within the service area of the
electric company that collected the funds { - . - } { + ; or
(B) If Oregon Community Power collected the funds, at least 80
percent of the funds allocated for conservation shall be spent
within the service area of Oregon Community Power. + }
Enrolled Senate Bill 443 (SB 443-B) Page 28
(e)(A) The first 10 percent of the funds collected annually by
an electric company { + or Oregon Community Power + } under
subsection (2) of this section shall be distributed to education
service districts, as described in ORS 334.010, that are located
in the service territory of the electric company { + or Oregon
Community Power + }. The funds shall be distributed to individual
education service districts according to the weighted average
daily membership (ADMw) of the component school districts of the
education service district for the prior fiscal year as
calculated under ORS 327.013. The commission shall establish by
rule a methodology for distributing a proportionate share of
funds under this paragraph to education service districts that
are only partially located in the service territory of the
electric company { + or Oregon Community Power + }.
(B) An education service district that receives funds under
this paragraph shall use the funds first to pay for energy audits
for school districts located within the education service
district. An education service district may not expend additional
funds received under this paragraph on a school district facility
until an energy audit has been completed for that school
district. To the extent practicable, an education service
district shall coordinate with the State Department of Energy and
incorporate federal funding in complying with this paragraph.
Following completion of an energy audit for an individual school
district, the education service district may expend funds
received under this paragraph to implement the energy audit. Once
an energy audit has been conducted and completely implemented for
each school district within the education service district, the
education service district may expend funds received under this
paragraph for any of the following purposes:
(i) Conducting energy audits. A school district shall conduct
an energy audit prior to expending funds on any other purpose
authorized under this paragraph unless the school district has
performed an energy audit within the three years immediately
prior to receiving the funds.
(ii) Weatherization and upgrading the energy efficiency of
school district facilities.
(iii) Energy conservation education programs.
(iv) Purchasing electricity from environmentally focused
sources and investing in renewable energy resources.
(f) The commission may not establish a different public purpose
charge than the public purpose charge described in subsection (2)
of this section.
(4) { + (a) + } An electric company that satisfies its
obligations under this section shall have no further obligation
to invest in conservation, new market transformation or new
low-income weatherization or to provide a commercial energy
conservation services program and is not subject to ORS 469.631
to 469.645 and 469.860 to 469.900.
{ + (b) Oregon Community Power, for any period during which
Oregon Community Power collects a public purpose charge under
subsection (2) of this section:
(A) Shall have no other obligation to invest in conservation,
new market transformation or new low-income weatherization or to
provide a commercial energy conservation services program; and
(B) Is not subject to ORS 469.631 to 469.645 and 469.860 to
469.900. + }
(5)(a) A retail electricity consumer that uses more than one
average megawatt of electricity at any site in the prior year
shall receive a credit against public purpose charges billed by
Enrolled Senate Bill 443 (SB 443-B) Page 29
an electric company { + or Oregon Community Power + } for that
site. The amount of the credit shall be equal to the total amount
of qualifying expenditures for new energy conservation, not to
exceed 68 percent of the annual public purpose charges, and the
above-market costs of purchases of new renewable energy resources
incurred by the retail electricity consumer, not to exceed 19
percent of the annual public purpose charges, less administration
costs incurred under this subsection. The credit may not exceed,
on an annual basis, the lesser of:
(A) The amount of the retail electricity consumer's qualifying
expenditures; or
(B) The portion of the public purpose charge billed to the
retail electricity consumer that is dedicated to new energy
conservation, new market transformation or the above-market costs
of new renewable energy resources.
(b) To obtain a credit under this subsection, a retail
electricity consumer shall file with the State Department of
Energy a description of the proposed conservation project or new
renewable energy resource and a declaration that the retail
electricity consumer plans to incur the qualifying expenditure.
The State Department of Energy shall issue a notice of
precertification within 30 days of receipt of the filing, if such
filing is consistent with this subsection. The credit may be
taken after a retail electricity consumer provides a letter from
a certified public accountant to the State Department of Energy
verifying that the precertified qualifying expenditure has been
made.
(c) Credits earned by a retail electricity consumer as a result
of qualifying expenditures that are not used in one year may be
carried forward for use in subsequent years.
(d)(A) A retail electricity consumer that uses more than one
average megawatt of electricity at any site in the prior year may
request that the State Department of Energy hire an independent
auditor to assess the potential for conservation investments at
the site. If the independent auditor determines there is no
available conservation measure at the site that would have a
simple payback of one to 10 years, the retail electricity
consumer shall be relieved of 54 percent of its payment
obligation for public purpose charges related to the site. If the
independent auditor determines that there are potential
conservation measures available at the site, the retail
electricity consumer shall be entitled to a credit against public
purpose charges related to the site equal to 54 percent of the
public purpose charges less the estimated cost of available
conservation measures.
(B) A retail electricity consumer shall be entitled each year
to the credit described in this subsection unless a subsequent
independent audit determines that new conservation investment
opportunities are available. The State Department of Energy may
require that a new independent audit be performed on the site to
determine whether new conservation measures are available,
provided that the independent audits shall occur no more than
once every two years.
(C) The retail electricity consumer shall pay the cost of the
independent audits described in this subsection.
(6) Electric utilities and retail electricity consumers shall
receive a fair and reasonable credit for the public purpose
expenditures of their energy suppliers. The State Department of
Energy shall adopt rules to determine eligible expenditures and
the methodology by which such credits are accounted for and used.
Enrolled Senate Bill 443 (SB 443-B) Page 30
The rules also shall adopt methods to account for eligible public
purpose expenditures made through consortia or collaborative
projects.
(7)(a) In addition to the public purpose charge provided under
subsection (2) of this section, beginning on October 1, 2001, an
electric company { + or Oregon Community Power + } shall collect
funds for low-income electric bill payment assistance in an
amount determined under paragraph (b) of this subsection.
(b) The total amount collected for low-income electric bill
payment assistance under this section shall be $10 million per
year. The commission shall determine each electric company's
proportionate share of the total amount { + and Oregon Community
Power's proportionate share of the total amount + }. The
commission shall determine the amount to be collected from a
retail electricity consumer, except that a retail electricity
consumer is not required to pay more than $500 per month per site
for low-income electric bill payment assistance.
(c) Funds collected by the low-income electric bill payment
assistance charge shall be paid into the Housing and Community
Services Department Revolving Account created under ORS 456.574.
Moneys deposited in the account under this paragraph are
continuously appropriated to the Housing and Community Services
Department for the purpose of funding low-income electric bill
payment assistance. Interest earned on moneys deposited in the
account under this paragraph shall accrue to the account. The
department's cost of administering this subsection shall be paid
out of funds collected by the low-income electric bill payment
assistance charge. Moneys deposited in the account under this
paragraph shall be expended solely for low-income electric bill
payment assistance. Funds collected from an electric company
{ + or Oregon Community Power + } shall be expended in the
service area of the electric company { + or Oregon Community
Power + } from which the funds are collected.
(d) The Housing and Community Services Department, in
consultation with the federal Advisory Committee on Energy, shall
determine the manner in which funds collected under this
subsection will be allocated by the department to energy
assistance program providers for the purpose of providing
low-income bill payment and crisis assistance, including programs
that effectively reduce service disconnections and related costs
to retail electricity consumers and electric utilities. Priority
assistance shall be directed to low-income electricity consumers
who are in danger of having their electricity service
disconnected.
(e) Notwithstanding ORS 293.140, interest on moneys deposited
in the Housing and Community Services Department Revolving
Account under this subsection shall accrue to the account and may
be used to provide heating bill payment and crisis assistance to
electricity consumers whose primary source of heat is not
electricity.
(f) Notwithstanding ORS 757.310, the commission may allow an
electric company { + or Oregon Community Power + } to provide
reduced rates or other payment or crisis assistance or low-income
program assistance to a low-income household eligible for
assistance under the federal Low Income Home Energy Assistance
Act of 1981, as amended and in effect on July 23, 1999.
(8) For purposes of this section, 'retail electricity
consumers' includes any direct service industrial consumer that
purchases electricity without purchasing distribution services
from the electric utility.
Enrolled Senate Bill 443 (SB 443-B) Page 31
{ + (9) For purposes of this section, amounts collected by
Oregon Community Power through public purpose charges are not
considered moneys received from electric utility operations. + }
{ +
REVENUE BOND CONFORMING AMENDMENTS + }
SECTION 44. ORS 287.025 is amended to read:
287.025. (1) As used in this section:
(a) 'Agreement for exchange of interest rates' or ' agreement'
means a contract, or an option or forward commitment to enter
into a contract, for the exchange of interest rates that provides
for:
(A) Payments based on levels of or changes in interest rates;
or
(B) Provisions to hedge payment, rate, spread or similar
exposure including, but not limited to, an interest rate floor or
cap or an option, put or call.
(b) 'Borrowing' means a bond, note, bond anticipation note,
commercial paper, certificate of participation or other agreement
made in exercise of the borrowing power of the issuer.
(c) 'Counterparty' means the entity with which an issuer enters
into an agreement for exchange of interest rates.
(d) 'Issuer' means a public body as defined in ORS
288.605 { + , + }
{ - or - } Oregon Health and Science University { + or Oregon
Community Power + }.
(e) 'Related borrowing' means a borrowing for which the issuer,
or the State Treasurer on behalf of a state issuer, enters into
an agreement for exchange of interest rates.
(f) 'Termination payment' means the amount payable under an
agreement for exchange of interest rates by one party to another
party as a result of termination, in whole or in part, of the
agreement prior to the expiration of the stated term.
(2) If the issuer is a state issuer, including the State of
Oregon or an agency, department, board or commission of the State
of Oregon, the State Treasurer may exercise the authority granted
by this section on behalf of the state issuer or the state
issuer, with the approval of the State Treasurer, may exercise
that authority directly.
(3) Subject to subsection (2) of this section, an issuer, or
the State Treasurer on behalf of a state issuer, may enter into
an agreement for exchange of interest rates for one or more
related borrowings that:
(a) Exist when the agreement for exchange of interest rates is
executed;
(b) Are reasonably expected to be executed when regularly
scheduled payments are due from the issuer under the agreement;
or
(c) Are identified after the agreement for exchange of interest
rates is executed and substituted for a borrowing described in
paragraph (a) or (b) of this subsection as a result of
prepayment, refunding, conversion, ratings changes, redemption,
defeasance or other similar event related to one or more of the
borrowings described in paragraph (a) or (b) of this subsection.
An agreement may be made to manage payment, interest rate, spread
or similar exposure undertaken in connection with a related
borrowing upon a finding by the issuer, or the State Treasurer on
behalf of a state issuer, that the agreement benefits the issuer.
Enrolled Senate Bill 443 (SB 443-B) Page 32
(4) The issuer, or the State Treasurer on behalf of a state
issuer, shall include in an agreement for exchange of interest
rates provisions related to payment, term, security,
collateralization, termination, default and remedy that the
issuer, or the State Treasurer on behalf of a state issuer,
determines necessary or appropriate upon consideration of the
covenants applicable to the related borrowing and the
creditworthiness of the parties.
(5) The issuer, or the State Treasurer on behalf of a state
issuer, may enter into an agreement for exchange of interest
rates only if:
(a) The credit ratings for obligations of the counterparty that
are similar to the termination payment obligations of the
counterparty, or the credit ratings for at least one of the
guarantors of the counterparty, are in one of the top three
rating categories without gradation by at least two nationally
recognized rating agencies and satisfy any other requirements
that may be imposed by the Oregon Municipal Debt Advisory
Commission or the State Treasurer, as applicable, pursuant to
subsection (13) of this section; or
(b) The termination payment obligations of the counterparty, or
at least one of the guarantors of the counterparty, with whom the
issuer, or the State Treasurer on behalf of a state issuer,
enters the agreement are collateralized by cash or obligations:
(A) That are rated in one of the top three rating categories
without gradation by at least two nationally recognized rating
agencies as determined by the Oregon Municipal Debt Advisory
Commission or the State Treasurer, as applicable, pursuant to
subsection (13) of this section;
(B) That are deposited with the issuer, or the State Treasurer
on behalf of a state issuer, or with an agent of the issuer;
(C) That have a market value sufficient to collateralize that
portion of the termination payment obligations of the party under
the agreement as determined at the discretion of the issuer, or
the State Treasurer on behalf of a state issuer; and
(D) That are revalued at least quarterly.
(6) An issuer, or the State Treasurer on behalf of a state
issuer, may agree, based on the issuer's reasonable expectations
when the agreement is executed:
(a) If the borrowing bears interest at one or more variable
rates, to pay sums equal to interest at one or more fixed rates
or one or more different variable rates determined under a
formula set forth in the agreement for exchange of interest rates
on an amount not to exceed the outstanding principal amount of
the borrowing when the agreement is entered into or, if the
borrowing has not been issued, the principal amount of the
borrowing reasonably anticipated to be outstanding when payments
are required to commence under the agreement in exchange for an
agreement for the issuer, or the State Treasurer on behalf of a
state issuer, to be paid sums calculated based on the same
principal amount at a variable rate determined under a formula
set forth in the agreement.
(b) If the borrowing bears interest at one or more fixed rates,
to pay sums calculated based on one or more variable rates or one
or more different fixed rates determined under a formula set
forth in the agreement for exchange of interest rates on an
amount not to exceed the outstanding principal amount of the
borrowing when the agreement is entered into or, if the borrowing
has not been issued, the principal amount of the borrowing
reasonably anticipated to be outstanding when payments are
Enrolled Senate Bill 443 (SB 443-B) Page 33
required to commence under the agreement in exchange for an
agreement for the issuer, or the State Treasurer on behalf of a
state issuer, to be paid sums calculated based on the same
principal amount at a fixed rate or rates set forth in the
agreement.
(7) The issuer, or the State Treasurer on behalf of a state
issuer, may not enter into an agreement under this section that:
(a) Has a term that exceeds the original term of the related
borrowing for which the agreement for exchange of interest rates
is made or, in the case of an option or a forward commitment, has
a term that exceeds the reasonably expected term of the related
borrowing for which the agreement is made; or
(b) Is for a purpose other than to manage payment, interest
rate, spread or similar exposure in connection with the related
borrowing of the issuer.
(8) The limitation on interest on an obligation in ORS 286.036,
or any other similar limitation, does not apply to an amount paid
under an agreement for exchange of interest rates entered into
under this section.
(9) Upon entering into an agreement for exchange of interest
rates under this section and continuing until the agreement is
satisfied, terminated or otherwise no longer in effect, as long
as no payment default has occurred, the issuer, or the State
Treasurer on behalf of a state issuer, shall treat the amount or
rate of interest on the related borrowing as the amount or rate
of interest payable after giving effect to the agreement for the
purpose of calculating:
(a) Tax levies, if any, to pay bond debt service; or
(b) Other amounts that are based upon the rate of interest of
the borrowing.
(10) Subject to covenants applicable to a related borrowing and
the limitation described in subsection (12) of this section,
payments required under the agreement by the issuer, or the State
Treasurer on behalf of a state issuer, may:
(a) Be treated as interest payments on the related borrowing;
(b) Be made from revenues or other moneys committed to or
legally available to pay the related borrowing; and
(c) Rank in an order of priority of payment relative to the
payment of the related borrowing as the issuer, or the State
Treasurer on behalf of a state issuer, determines. In connection
with entering into an agreement, the issuer, or the State
Treasurer on behalf of a state issuer, may enter into an
agreement that enhances or supports the credit of the issuer in
the agreement or enhances or supports the liquidity of the
agreement.
(11) An agreement entered into under this section:
(a) Is not a debt or other obligation of the issuer for
purposes of any limitation upon the indebtedness of the issuer.
(b) Is subject only to the limitations of this section and is
not subject to other limitations applicable to the related
borrowing.
(12) A termination payment required to be paid by an issuer
under an agreement for exchange of interest rates may not be paid
from taxes that the issuer may levy that are exempt from the
limitations of sections 11 and 11b, Article XI of the Oregon
Constitution.
(13)(a) The Oregon Municipal Debt Advisory Commission shall
promulgate administrative rules establishing required terms,
conditions, annual or periodic reporting requirements and other
requirements for an agreement for exchange of interest rates
Enrolled Senate Bill 443 (SB 443-B) Page 34
entered into by an issuer other than a state issuer and may
impose additional requirements for agreements for exchange of
interest rates that are executed by issuers other than a state
issuer, if the commission determines those requirements are
desirable to protect the interests of those issuers or citizens
of the State of Oregon.
(b) The State Treasurer may promulgate administrative rules:
(A) Establishing required terms, conditions, annual or periodic
reporting requirements and other requirements for an agreement
for exchange of interest rates entered into by a state issuer
acting with the approval of the State Treasurer under subsection
(2) of this section;
(B) Requiring a party to an agreement, the party's guarantor or
the collateral securing the obligation of a party or the party's
guarantor to meet specific credit rating standards or other
conditions; or
(C) If the State Treasurer determines that conditions and
restrictions are necessary or appropriate to protect the
interests of issuers, requiring the agreement to contain terms
and conditions that are more restrictive than the terms and
conditions established in subsection (5) of this section.
(14)(a) Before an agreement for exchange of interest rates may
be entered into under this section, the issuer, or the State
Treasurer on behalf of a state issuer, shall determine whether:
(A) The agreement for exchange of interest rates is being
executed for a permitted purpose and benefits the issuer; and
(B) The requirements of this section have been met.
(b) In addition to the determinations required under paragraph
(a) of this subsection, an issuer other than a state issuer shall
also determine whether the issuer has complied with the
requirements of the administrative rules promulgated by the
Oregon Municipal Debt Advisory Commission under subsection (13)
of this section.
(15) An issuer other than a state issuer shall notify the State
Treasurer of the execution by the issuer of an agreement for
exchange of interest rates under this section.
{ +
MISCELLANEOUS + }
SECTION 45. { + The unit and section captions used in this
2007 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2007 Act. + }
SECTION 46. { + This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2007 Act takes effect on
its passage. + }
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Enrolled Senate Bill 443 (SB 443-B) Page 35
Passed by Senate May 25, 2007
Repassed by Senate June 25, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 23, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 443 (SB 443-B) Page 36
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 443 (SB 443-B) Page 37