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Item 4ECity of Southlake, Texas M E M O R A N D U M TO: Shana Yelverton, City Manager FROM: Sharen Jackson, Director of Finance SUBJECT:RESOLUTION NO. 07-055, DENYING THE REQUEST OF ATMOS ENERGY CORP., MID-TEX DIVISION, FOR AN ANNUAL GAS RELIABILITY INFRASTRUCTURE PROGRAM (GRIP) RATE INCREASE IN THIS MUNICIPALITY, AS A PART OF THE COMPANY’S STATEWIDE GAS UTILITY DISTRIBUTION SYSTEM; SUPPORTING STATUTORY REFORM OF THE TEXAS GRIP STATUTE, FINDING THAT THE MEETING AT WHICH THIS RESOLUTION IS PASSED IS OPEN TO THE PUBLIC; AND PROVIDING FOR NOTICE OF THIS RESOLUTION TO ATMOS ENERGY CORP., MID-TEX DIVISION AND THE CITY'S LEGISLATIVE DELEGATION. __________________________________________________________________________ Action Requested: Approval of Resolution No. 07-055. Background Information: The law mandates that a Gas Reliability Infrastructure Program (GRIP) surcharge request cannot become effective until sixty days following the filing. The effective date may be suspended by a city. On July 17, 2007 City Council approved Resolution No. 07-043 suspending the effective date of the Company's surcharge request to evaluate the filing, determine whether the filing complies with law, and if unlawful, to determine what further strategy to pursue. This is particularly important given that the Atmos Cities Steering Committee (ACSC) initiated a rate case (GUD No. 9670) in which it was determined that Atmos had included inappropriate expenditures in its previous GRIP surcharges for rate years 2003, 2004, and 2005. If Cities, through ACSC, and other interveners, not investigated the filings to determine the impropriety of these expenditures and of their inclusion in the GRIP surcharges, this would not have been exposed, and the refund of $2.5 million would not have been ordered. ACSC’s rate consultant has identified approximately $3.4 million in expenses included in the 2006 GRIP surcharge request that are inconsistent with the statute and/or the Railroad Commission's order in GUD 9670. For example, the Company’s surcharge request is based in part on inappropriate expenses related to furniture and office fixtures. The Commission excluded furniture expenses from the Atmos Mid-Tex GRIP surcharge in GUD 9670. The Company acknowledges this and has removed some of the furniture and fixture expense from the current filing. The filing offers no explanation why any furniture or fixture expense remains part of the GRIP surcharge. In addition, our consultant has also identified expenses included in this surcharge request that occurred prior to 2006, therefore ineligible for inclusion in the 2006 GRIP Shana Yelverton, City Manager September 12, 2007 Page 2 surcharge. Finally, Atmos Mid-Tex has just received a rate increase of approximately $5 million and should be collecting sufficient revenues to earn its allowed return without the necessity for a surcharge to recover incremental investment. Atmos Mid-Tex filed its fourth surcharge request under the Gas Reliability Infrastructure Program (“GRIP”) statute, seeking to implement monthly surcharges of $0.59 (average residential customers), $1.47 (average commercial customers), and $28.74 for industrial customers. The resolution denies Atmos Mid-Tex's 2006 surcharge request on the grounds that it does not comply with the law and is not reasonable. The resolution also indicates the City's support for statutory changes to the Texas GRIP statute to ensure fairness for ratepayers and to eliminate piecemeal ratemaking for any change in invested capital. Financial Considerations: No immediate financial consideration. Historically, the Steering Committee which is funded with membership dues will cover the cost of legal and consultant fees then reimbursed pending final determination. City Council approved Resolution No. 07-043 in July 2007 which requested reimbursement of any reasonable legal and consultant ratemaking costs from Atmos. Citizen Input/ Board Review: None required Legal Review: Legal counsel (Lloyd Gosselink) for ACSC Alternatives: Approve or deny Supporting Documents: Resolution No. 07-055 Staff Recommendation: Approval of Resolution No. 07-055 RESOLUTION NO. 07-055 A RESOLUTION OF THE CITY OF SOUTHLAKE, TEXAS, DENYING THE REQUEST OF ATMOS ENERGY CORP., MID-TEX DIVISION, FOR AN ANNUAL GAS RELIABILITY INFRASTRUCTURE PROGRAM (GRIP) RATE INCREASE IN THIS MUNICIPALITY, AS A PART OF THE COMPANY’S STATEWIDE GAS UTILITY DISTRIBUTION SYSTEM; SUPPORTING STATUTORY REFORM OF THE TEXAS GRIP STATUTE, FINDING THAT THE MEETING AT WHICH THIS RESOLUTION IS PASSED IS OPEN TO THE PUBLIC; AND PROVIDING FOR NOTICE OF THIS RESOLUTION TO ATMOS ENERGY CORP., MID-TEX DIVISION AND THE CITY'S LEGISLATIVE DELEGATION. WHEREAS, the City of Southlake, Texas (“City”) is a gas utility customer of Atmos Energy Corp., Mid-Tex Division (“Atmos Mid-Tex” or “the Company”), and a regulatory authority with an interest in the rates and charges of Atmos Mid-Tex; and WHEREAS, Atmos Mid-Tex made filings with the City and the Railroad Commission of Texas (“Railroad Commission”) on or about May 31, 2007, proposing to implement interim rate adjustments (“GRIP rate increases”), pursuant to Texas Utilities Code § 104.301, on all customers served by Atmos Mid-Tex, effective July 30, 2007; and WHEREAS,the Gas Reliability Infrastructure Program (GRIP) statute approved in the th 2003 Regular Session of the 78 Legislature changes 100 years of Texas law and allows a natural gas utility to implement annual surcharges for increases in investment without having to account for the offsetting decreases in costs or increases in revenue experienced by the utility; and WHEREAS,Texas is the only state out of the twelve states served by Atmos that has a GRIP statute that allows for piecemeal recovery for any change to invested capital; and 1 2557\02\res070807kpd 2006 GRIP denial WHEREAS, Atmos has implemented four GRIP surcharges and collected more than $20 million in GRIP surcharges from customers since the utility acquired the TXU Gas system in 2004; WHEREAS, the City supports the statutory reform of the GRIP statute to ensure fairness to ratepayers and to eliminate piecemeal recovery for any change to invested capital; and WHEREAS, Atmos Mid-Tex was recently granted a rate increase as a result of its filing in GUD No. 9670, in which the Final Order was only signed on March 29, 2007; and WHEREAS, in GUD No. 9670, it was determined that Atmos Mid-Tex had inappropriately included certain expenditures in its prior GRIP rate increases for rate years 2003, 2004, and 2005; and WHEREAS, the City, as a regulatory authority, suspended the July 30, 2007, effective date to examine this latest GRIP filing to determine its compliance with the Texas Utilities Code and Railroad Commission final order in the most recent Atmos Mid-Tex rate case; and WHEREAS, the City has joined with other cities to review the Company’s filing, said coalition being known as Atmos Cities Steering Committee (“ACSC”); WHEREAS, the consultant hired by Steering Committee has reviewed the GRIP surcharge application and has issued a final report finding that the Company has included millions of dollars of expenses in the current GRIP surcharge that are inconsistent with the Texas Utilities Code and Railroad Commission final order in the most recent Atmos Mid-Tex rate case and not related to ensuring the safety and reliability of the system; WHEREAS, counsel for the Steering Committee, upon review of the Company’s filing and the consultant's report, recommends finding that the Company’s proposal is unjustified and unreasonable; and 2 2557\02\res070807kpd 2006 GRIP denial WHEREAS, ratepayers of Atmos Mid-Tex, including the City and its residents, will be adversely impacted by the proposed GRIP rate increases. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: SECTION 1. That the Company’s GRIP rate increase request is found to be unreasonable and inconsistent with the Texas Utilities Code and Railroad Commission final order in GUD 9670, Atmos Mid-Tex most recent rate case, and is therefore denied in all respects. SECTION 2. This Resolution shall become effective immediately from and after its passage, as the law and charter in such cases provide. SECTION 3. That the City hereby advocates statutory reform of the Texas GRIP statute to ensure fairness to ratepayers and to eliminate piecemeal recovery for any change to invested recovery. SECTION 4. That the City calls upon its state representatives and senator to support st legislation in the 81 Regular Session of the Texas Legislature that would reform the Texas GRIP statute to ensure fairness for ratepayers and eliminate piecemeal recovery for any changes to invested capital. SECTION 5. That it is hereby officially found and determined that the meeting at which this Resolution is passed is open to the public as required by law and that public notice of the time, place and purpose of said meeting was given as required. SECTION 6. A copy of this Resolution, constituting final action on the Company’s application, be forwarded to the following: 3 2557\02\res070807kpd 2006 GRIP denial Charles R. Yarbrough, II Atmos Energy Corporation 5420 LBJ Freeway, Suite 1800 Dallas, Texas 75240 Lloyd Gosselink Blevins Rochelle & Townsend c/o Geoffrey Gay P.O. Box 1725 Austin, Texas 78767-1725. SECTION 7. A copy of the resolution shall be sent to the elected lawmakers representing the City’s interests in the Texas House and Senate. DULY PASSED and approved by the City Council of the City of ____________, Texas, on this the ______ day of __________, 2007. APPROVED: ____________________________________ ATTEST: ____________________________________ APPROVED AS TO FORM: _____________________________ City Attorney 4 2557\02\res070807kpd 2006 GRIP denial