For the matters indicated in this article, the Regulatory Authority shall convene a hearing in which persons with a legitimate interest may participate to express their views. For this purpose, the Regulatory Authority shall order the publication in the Official Gazette La Gaceta and in two nationally circulating newspapers of the matters listed below:
a. Requests for the ordinary setting of rates and prices for public services.
b. Requests for authorization of electric power generation in accordance with Law Nº 7200, of September 28, 1990, reformed by Law Nº 7508, of May 9, 1995.
c. The formulation and revision of the norms indicated in Article 25.
d. The formulation or revision of price and rate-setting models, in accordance with Article 31 of this Law.
For these cases, anyone with a legitimate interest may present their opposition or coadjuvancy, in writing or orally, on the day of the hearing, at which time they must indicate the exact address or fax number for notification purposes by ARESEP. In said hearing, the interested party must set forth the factual and legal reasons they consider pertinent.
The hearing shall be convened once the petition has been admitted and if the formal requirements established by the legal system have been met. For this purpose, an extract shall be published in the official gazette La Gaceta and in two nationally circulating newspapers, twenty (20) calendar days prior to the holding of the hearing.
In the case of an ex officio action by the Regulatory Authority, the same procedure shall be observed.
For the purposes of standing based on collective interest, legal entities organized in associative form and whose purpose is the defense of consumer or user rights may register with the Regulatory Authority to act in their defense as an opposing party, provided that the tariff petition proceeding is related to their purpose. Likewise, community development associations or other social organizations whose purpose is the defense of the legitimate rights and interests of their members shall have standing.
Persons interested in filing an opposition with technical studies who do not have the necessary economic resources for such purposes may request ARESEP to assign a technical expert or professional duly accredited before this entity to carry out said work. This shall be at the expense of the Regulatory Authority's budget. Likewise, the Public Services Regulatory Authority is empowered to establish regional offices in other areas of the country, according to its possibilities and needs.
In accordance with the foregoing, it is clear that the Board of Directors of the Regulatory Authority is competent to issue the tariff methodologies for regulated public services, including electricity generation, for which it must follow the public hearing procedure ensuring citizen participation, and for their issuance, it must observe the cost-of-service principle, the rules of science and technique, and the general provisions issued in the National Development Plan related to the electricity sector.
The legal framework cited above provides the basis empowering ARESEP to establish regulatory methodologies that reflect the cost structure, financing, the required returns in accordance with the cost-of-service principle, and the applicable technical aspects, in such a way that reference tariffs are obtained to allow the competitive development of private hydroelectric generation.
Context of the national electricity sector.
II.That the National Electricity Sector finds itself at a stage in which the urgent incorporation of the greatest possible amount of energy is required, coming from electricity generation plants that use renewable energy sources and have costs lower than those of thermal plants. These latter plants currently generate a considerable amount of the available electric energy, despite their higher economic and environmental costs.
In this regard, and in accordance with the provisions of the Plan Nacional de Desarrollo 2011-2014(1) regarding the importance of guaranteeing an energy matrix based on renewable sources, the electricity sector must increase its generation capacity with clean energy, whether through state projects or with the participation of private generators.
(1) http://documentos.mideplan.go.cr:8080/alfresco/d/d/workspace/SpacesStore/122fcd1c-53a7-47a7- a0ad-84cac6f1d7b9/PND-2011-2014-Maria-Teresa-Obregon-Zamora.pdf Currently, technical studies are available that demonstrate the existence of sufficient untapped potential from different energy sources (wind, biomass, hydroelectric, and geothermal). To take timely advantage of this potential, it is essential to have adequate public policies, and this includes the regulatory policies that the Autoridad Reguladora de los Servicios Públicos (ARESEP) is responsible for designing and executing.
Among the most significant state efforts to incentivize generation from renewable sources is the determination of tariff schemes that encourage private investment in electricity generation plants using such sources. These tariff schemes must comply with the principle of service at cost and the other principles and criteria established by Ley Nº 7593.
Ley Nº 7200 of September 13, 1990, provides the opportunity to promote the contribution of private investors and increase the supply of electricity generation based on renewable energy sources. This Law authorizes autonomous or parallel electric generation and allows the Instituto Costarricense de Electricidad (ICE) to purchase electricity from rural electrification cooperatives and from those private companies that establish power plants whose installed capacity does not exceed twenty thousand kilowatts (20,000 KW) and that use renewable energy sources. The same Law establishes that the aforementioned energy purchases may not exceed 15% of the total power of the set of power plants that make up the national electric system.
According to recent estimates by ICE, this public company can currently contract a maximum of up to 183 MW from private electricity generators, within the framework of Ley Nº 7200. This is a considerable amount of energy that could be injected into the National Electric System to reduce dependence on thermal generation.
To achieve the aforementioned purpose, it is necessary for ARESEP to establish reference tariffs for transactions to be carried out within the framework of Ley Nº 7200.
One of the main obstacles to defining the aforementioned tariff methodologies has been the difficulty of accessing adequate information to estimate the costs associated with private electricity generation, under the conditions established by Ley Nº 7200. Recently, this limitation has been overcome to a considerable extent, with the analyses and data provided by ICE, with the consultation of national and international information sources, and with the contributions and comments received during the public hearing process organized by ARESEP.
The analyses carried out by ARESEP have shown that there is no single standard model for electricity generation with hydroelectric plants within the framework of Ley Nº 7200. Despite the fact that the equipment used in these activities is very standardized, the great diversity of geological, topographical, and hydrological conditions at the sites where these plants are located causes considerable dispersion of production costs. Taking this situation into account, it has been decided to establish a tariff band within which ICE may receive offers from a wide range of private generators and choose those most attractive to it. Within this scheme, ICE is placed in a position to buy energy from some plants whose production costs differ from the average costs of the private generation industry, within acceptable conditions of costs and operational efficiency. This is justified, taking into account that the regulation of private electricity generation by ARESEP responds to the objective of reducing dependence on thermal generation and thus reducing the high economic and environmental costs that this type of generation entails.
The methodology by which the aforementioned tariff band is determined is based on a procedure with which the upper and lower values of that band are estimated, expressed in dollars per KWh. These limits are defined based on the estimation of the average and the standard deviation of the investment costs corresponding to 24 Central American hydroelectric plants with installed capacities equal to or less than 20 MW, which are in the possession of ARESEP. Other data obtained in the future may be added to these, to expand the reference sample. The upper limit is given by the tariff corresponding to an investment cost equal to the average plus one standard deviation; and the lower limit is given by the tariff calculated with an investment cost equal to the average minus the standard deviation.
It is expected that the tariff methodology proposed in this report will contribute to reducing, in the short and long term, the electric energy tariffs paid by the final consumer. Thus, energy buyers (companies and users) and the national economy as a whole will benefit. It is also expected that this will reduce the considerable negative environmental impacts that thermal generation is causing, which could increase if dependence on that energy source were to grow.
The tariffs resulting from these models would be those used for the purchase of electric energy by ICE from all those new private generators that, under the protection of Ley Nº 7200, sign a contract with ICE and whose energy source is hydraulic.
Proposal submitted to public hearing
III.That the need for a reference tariff methodology for new private hydroelectric generation plants is based on the following considerations:
. The national electricity sector urgently requires the incorporation of the greatest possible number of electricity generation plants that use renewable energy sources and have lower costs than thermal plants. In this way, the greatest possible amount of energy generated by thermal plants can be substituted, on the basis of which a considerable amount of the available electric energy is currently generated, despite their high economic and environmental costs.
. The electricity sector must increase its generation capacity with clean energy, whether through state projects or with the participation of private generators, to ensure the supply of electric energy from renewable sources.
. Technical studies have been carried out demonstrating the existence of sufficient untapped potential in the different energy sources (wind, biomass, hydroelectric, and geothermal), which implies that all necessary efforts must be made to incentivize the use of these sources.
. To incentivize private investment in generation from renewable sources within the framework of Ley Nº 7200, it is necessary for the Autoridad Reguladora de los Servicios Públicos (ARESEP) to establish reference tariffs for the transactions regulated by that law.
During the current year, a proposal was submitted to public hearing, through file OT-029-2011, with the purpose of establishing a "Model for the determination of reference ceiling tariffs for new private hydroelectric generation plants." This proposal was based on the following criteria:
. It is a model that defines a range of reference tariffs with the objective of stimulating investment, operational efficiency (cost reduction in operation and maintenance), as well as the optimal use of the water resource and allocative efficiency (price reduction), thereby benefiting energy buyers (companies and citizens), as well as the national economy as a whole.
. The tariffs resulting from these models will be those used for the purchase of electric energy by ICE from all those new private generators that, under the protection of Ley Nº 7200, sign a contract with ICE and whose energy source is hydraulic. The resulting tariff will also serve for the sale of electricity by private generators to other agents in the national electricity market.
. To determine the reference tariff, information was obtained from hydroelectric plants (with installed capacities similar to those established in Ley Nº 7200) from the United States of America, from some Central American countries, and from a group of plants in Costa Rica.
. The model is developed with industry parameters from some Central American countries and some specific cases from Costa Rica. The profitability determined was calculated according to the CAPM methodology, established by ARESEP in similar models.
The complete model that was submitted to the public hearing process is contained in official communication 098-DEN-2011, where its different aspects are developed in detail.
IV.That for the purposes of determining the "Reference tariff methodology for new private hydroelectric generation plants," the following conclusions reached by the Dirección General Centro de Desarrollo de la Regulación, in its official communication 122-CDR-2011, are considered:
1. The ultimate objective of the tariff methodology defined in this report is to provide the necessary tariff incentives so that, in the shortest possible time, the country takes advantage of the instruments defined in the first chapter of Ley Nº 7200 to substitute the greatest possible proportion of energy generated from thermal sources with energy generated from hydraulic sources. In this regard, it is kept in mind that according to recent estimates by ICE, this public company can currently contract a maximum of up to 183 MW from private electricity generators that produce with renewable sources, within the framework of Ley Nº 7200.
2. A tariff model has been defined that stimulates private investment associated with hydroelectric generation plants with capacities equal to or less than 20 MW, capable of operating within an acceptable range of costs and operational efficiency. To this end, a tariff band is determined that allows ICE to offer electricity purchase prices with which the bidder can obtain sufficient income to cover its operating costs, recover the investment made, and obtain reasonable profitability for the level of risk associated with the electricity generation activity.
3. Having reference tariffs for the aforementioned energy transactions is of great importance for the National Electric System and, in general, for the economic and social development of the country.
4. In particular, the proposed tariff scheme allows taking advantage of the opportunities offered by Ley Nº 7200 of September 13, 1990, to promote the contribution of private investors and increase the supply of electricity generation based on renewable energy sources.
5. The tariffs resulting from this model would be those used for the purchase of electric energy by ICE from all those new private generators that, under the protection of the first chapter of Ley Nº 7200, sign a contract with ICE and whose energy source is hydroelectric.
6. The tariff methodology is based on a model with which the upper and lower values of a tariff band are estimated, expressed in dollars per KWh. Those limits are defined from the estimation of the average and the standard deviation of the available investment cost data for Central American hydroelectric plants with installed capacities equal to or less than 20 MW. The upper limit is given by the tariff corresponding to an investment cost equal to the average plus one standard deviation; and the lower limit is given by the tariff calculated with an investment cost equal to the average minus the standard deviation.
7. The model was developed with industry parameters from some Central American countries and some specific cases from Costa Rica, and profitability was calculated according to the CAPM methodology, established by ARESEP in similar models, updating the respective parameters.
The methodological proposal defines the tariff as the final result of the algorithm that includes operating costs (costos de explotación, CE), return of investment (depreciation) (recuperación de la inversión, RI), profitability (r), and an environmental factor (factor ambiental, fa).
8. The method for calculating operating costs is as follows: a) operating cost data are taken from a sample of hydroelectric plants operating in the country, of different installed capacities; b) an exponential regression exercise is performed to estimate the curve that best approximates the function relating installed capacity and operating cost; and c) the value of the aforementioned function is used, corresponding to a 10 MW plant, which is the average value of the range allowed by Chapter 1 of Ley Nº 7200.
The Fixed Capital Cost (Costo Fijo por Capital, CFC) will depend on the investment amount, the level of leverage used (debt / capital contribution ratio), the financing conditions (interest rate, payment method, and term), the rate of return, the investment recovery period (economic life), the age of the plant, and the applicable income tax rate.
9. The total investment amount (M) represents the total costs necessary to build a generation plant under normal conditions for our country. The calculation of this value is made from a sample of investment cost data for hydroelectric plants with installed capacities equal to or less than 20 MW. The resulting value is obtained from the average of the averages of the unit investment costs of five installed capacity ranges, each of 4 MW. To that value was added the amount corresponding to the payment of interest during the grace period.
10. With respect to the factor that reflects the investment conditions (FC), this will depend on the conditions established in the financing, namely: leverage (debt ratio), interest rate, debt term (years), the profitability of capital contributions (CAPM), in addition to the age of the plant (years), which will take into account the economic life of the plant (years).
11. The financing conditions (interest rate, debt ratio, and term) to be used in the proposed model will be determined, except for the term which is fixed, by the average of each of these parameters for a sample of national and international projects with capacities similar to those for which tariffs are intended to be applied. Said parameters will be subject to the financial conditions offered by the market at the time.
12. For the purposes of this model, the economic life of the project is 20 years, a period equal to that of the contract considered in the model to define the tariff.
13. The duration of the energy purchase-sale contract used in the model for the calculation of tariffs (20 years) is the maximum permitted by law.
14. The profitability of the capital contribution will be obtained by means of the Capital Asset Pricing Model (CAPM), which will take into account the following parameters: the risk-free rate, the beta of the leveraged investment according to the debt ratio, the risk premium, and the updated country risk.
15. The hourly-seasonal structure seeks to represent the cyclical changes in the value of energy in the electric system, due to the seasonal influence of hydrology and the weekly behavior of the load curve.
16. The tariffs resulting from the detailed methodology will be expressed and invoiced in United States dollars (US$ or $). The respective payments shall be made in accordance with what the parties establish via contract, in accordance with the applicable regulations.
The values of the tariff band shall be reviewed at least once a year, in accordance with the provisions of Ley Nº 7593.
17. To improve this methodology in the future, new private hydroelectric generators will have the obligation to annually submit audited financial information to ARESEP.
V.That from official communication 122-CDR-2011, which serves as the basis for this resolution, the main arguments of the opponents and coadjuvants are extracted, whose summary and analysis it is appropriate to cite as follows:
"(.)
5.1. Participants in the public hearing. The public hearing was held in accordance with Article 36 of the Ley de la Autoridad Reguladora de los Servicios Públicos, Nº 7593, and Articles 44 to 61 of the Regulation to the cited Law (Decreto Nº 29732-MP).
According to the Instructional Report presented by the Dirección General de Protección al Usuario, (official communication 0550-DGPU-2011), 20 admitted oppositions and coadjuvancies were received from the Asociación Costarricense de Grandes Consumidores de Energía, Rubén Zamora Castro, Stephen Yurica, Jorge Arturo Alfaro Fallas, Asociación Costarricense de Productores de Energía (ACOPE), Esteban Lara Erramouspe, José Daniel Lara Aguilar, Inversión La Manguera, S. A., Juwi Energía Hidroeléctricas Limitada, Compañía Eléctrica Doña Julia, S.R.L., Federico Fernández Woodridge, Allan Broide Wohlstein, Empresa Hidroeléctrica Matamoros, S. A., Aeroenergía, S.A., Hidroeléctrica Platanares, S. A., and Hidroeléctrica del General S.R.L., Hidroeléctrica Aguas Zarcas, S. A., Hidroeléctrica Caño Grande, S. A., El Embalse, S. A., Claudio Volio Pacheco, and Hidro Venecia, S. A.
The oppositions received that were not admitted due to lack of formal requirements correspond to: Molinos de Viento del Arenal S. A., Planta Hidroeléctrica Don Pedro S. A., and Planta Hidroeléctrica Río Volcán S. A.
5.2 Main arguments presented. The oppositions presented deal with a considerable number of specific topics. Below is a summary of some of the most recurring arguments that could eventually most significantly affect the tariff and the proposed model. ARESEP's position is set forth on each of them.
5.2.1 Tariff scheme: Ceiling tariffs, band, or single tariff? Several of the oppositions expressed at the hearing objected to the ceiling tariff scheme, and in particular the use of a tariff associated with average costs to establish that ceiling.
ARESEP's analysis after the hearing coincides with the majority of the arguments against establishing a ceiling tariff based on average costs. That scheme has the drawback that it leaves private generators with costs higher than the average that may be estimated without the possibility of participating as energy bidders for ICE. In this regard, it must be considered, firstly, that the average estimated in the proposal sent to the hearing does not correspond to a specific efficiency level, as it is simply a statistical average of available cost data. Secondly, it must be taken into account that in the industrial segment of hydroelectric energy generation with capacities equal to or less than 20 MW, there is no standard of efficient production. Despite the fact that the equipment used in that industry is highly standardized, the diversity of geological, topographical, and hydrological conditions of possible project sites implies the existence of a wide range of infrastructure costs. Thirdly, it is worth keeping in mind that the objective of the proposed tariff scheme is to minimize the use of thermal generation, provided that the substitution is made with renewable sources and significantly lower costs.
Considering the three aforementioned aspects, it is concluded that there may be plants with costs above the average that nevertheless produce with efficiency levels far superior to those of thermal generation and with less negative environmental impact. For this reason, the tariff scheme should establish an upper limit above average costs, within a reasonable range to stimulate efficiency in the segment of tradeable private hydroelectric generation within the framework of Ley Nº 7200.
On the other hand, the ceiling tariff scheme has the drawback that it does not establish a lower limit for the price of energy to be purchased by ICE. This would cause ICE, in its condition as a monopsony operator, to have an inconveniently wide margin to set prices below the cost of many operators that can be considered efficient.
In accordance with the foregoing, it has been decided to propose a tariff band scheme. Given the lack of detailed information on efficiency levels in the industrial segment of interest, a statistical criterion has been used to define the band (based on the average and standard deviation of investment costs).
Furthermore, some oppositions requested the establishment of a single tariff to set the sale price of the energy to be purchased by ICE within the framework of Ley Nº 7200. In this regard, it is worth keeping in mind that if a single tariff were established with a value equal to the upper limit of the tariff band proposed in this report, ICE would be left without any discretion to give preference to bidders offering lower tariffs. On the contrary, it would be forced to grant the same tariff to all bidders and to award contracts based on criteria other than the price offered. This possible scheme would entail a discouragement to technical and economic efficiency in the operation of hydroelectric companies willing to sell their energy within the framework of Ley Nº 7200.
5.2.2 Recognition of capital profitability: Although the CAPM (Capital Asset Pricing Model) method presents some disadvantages and practical application problems, it is usable for the conditions of the Costa Rican segment of private hydroelectric energy generation, because it operates under market conditions and is composed of a significant number of operators that have no restrictions on the mobility of their capital. For industries with conditions like those mentioned, the CAPM is an adequate method to recognize the return on capital. Among its advantages are that it allows considering the particularities of a sector (such as the electricity sector), it is more transparent than other alternatives, it allows taking long-term averages of relevant variables to avoid high volatility in the results, and it admits adjustments based on the degree of leverage or risk of each sector.
In the specific case of the value of the beta parameter that is part of the CAPM method, the recommendation expressed in several oppositions is accepted, in the sense of using as a source the information provided and published on the Internet by Dr. Aswath Damodaran, professor at the University of New York, USA, which provides updated information. Failing that, an alternate, public, and reliable source would be used.
5.2.3 Financing: The financing conditions were defined as follows: i) the amortization period was set at 20 years to equate it with the maximum contract term permitted by law; ii) the interest rate will be taken from the periodic publications of the Banco Central de Costa Rica; iii) the financial leverage will be estimated based on the available data on private hydroelectric projects held by ARESEP; and iv) other variables used to apply the CAPM method will be taken from the Internet site of Professor Aswath Damodaran.
5.2.4 The periodicity of contracts and the tariff: The original proposal that was taken to public hearing contained two alternatives regarding the tariff term: one with a single tariff during the 20 years of the contract; and another segmenting the term into two sub-terms of 13 and 7 years, respectively. This latter alternative was considered in some oppositions as causing greater uncertainty, which could, in turn, imply higher costs and potentially make some projects non-bankable. For this reason, in the final proposal, it was agreed to leave only the alternative of a single tariff for the entire term of the contract.
The tariff recognizes a contractual term of 20 years (the maximum permitted by legislation), although the projects have a useful life that can double this term. Although it is recognized that this restriction creates uncertainty for the investor, as they cannot be sure of being recontracted for a second period, it is imposed by the current legal framework. In any case, a 20-year contract is very favorable for any investor operating in the hydroelectric energy sales industry. Moreover, it is considered that the probability of a new contract after the expiration of the 20-year term is high, taking into account the imminent integration of the Central American electricity market, the increasing trend in hydrocarbon prices, and the growth of national electricity demand.
5.2.5 The environmental factor: ARESEP agrees with establishing an environmental factor in public service tariffs. The legislation allows it and it is advisable from a technical point of view. However, for this recognition, it is necessary to formulate a concrete, well-founded methodology, which must be submitted to the procedure provided for in the legislation (public hearing). It is expected that, in the short term, a separate procedure will be initiated to incorporate the environmental component into the tariff for private generation with hydroelectric plants, within the framework of Ley Nº 7200.
5.2.6 Tariff updating: The values of the tariff band shall be reviewed at least once a year, in accordance with the provisions of Ley Nº 7593. All values that determine the tariff shall be updated at each tariff setting.
5.2.7 Investment: Several alternatives have been proposed regarding the amount of investment to be recognized in this tariff model. Some of the opponents' proposals request recognition of information derived from a database of plants from the United States of America (USA). Although this database contains a large number of plants, which in principle is attractive from a statistical and economic point of view, the information contained presents several doubts about whether the average investment level in the USA is representative of the one corresponding to Costa Rica. Additionally, it should be noted that if one wishes to use this database to establish the investment cost, it should also be used to establish the operating cost, to be consistent in its application. Unfortunately, the actors who participated in the hearing did not provide comparative information that would allow reviewing these values with better elements of judgment, to guarantee consistency in the proposed model.
It was decided to select a sample of investment cost data from Central American plants, coming from a study prepared by a regional body: the Consejo de Electrificación de América Central - Grupo de Trabajo de Planificación Indicativa Regional (GTPIR). The report from which the investment data comes has the following title: "Plan Indicativo Regional de Expansión de la Generación. Período 2011-2025", and is dated December 2010. To the data from that source were added investment cost data for Costa Rican plants from ARESEP tariff studies. It is considered that these information sources are more adequate than the one containing the investment data from the USA, because they deal with hydroelectric projects with the physical and economic conditions of the Central American region.
The unit investment cost is actually an average of the average values corresponding to each of the five 4 MW ranges comprised below the 20 MW upper limit established by Ley Nº 7200. This is an attempt to give equal representativeness in the average to the sample values associated with each capacity range. As can be noted, an average value of all available data is being estimated. Therefore, it is not the investment value corresponding to a 10 MW plant, as indicated in some oppositions. It must be added that the average investment cost value includes the capitalization of two years of interest from the grace period. Furthermore, it must be considered that the CAPM model incorporates a leveraged "beta," which reflects the risk associated with financing.
5.2.8 Operating costs: Of the available sources, the best has been considered to be the one corresponding to the costs of ICE plants, as it involves a reasonably significant number of plants, these are national, and periodic information about them is available. Likewise, the corresponding adjustments must be made to the information presented to take into account the type of costs incurred and the size of the plants.
Taking into account what was expressed in some objections, the estimation of the operating cost was reviewed using the procedure indicated above.
5.2.9 Payment of dividend tax: It is the criterion of the regulatory entity that within the cost structure of public services, only those taxes inherent to the productive business activity corresponding to the executing economic entity should be considered, and not those that shareholders must pay on their profits, which must be assumed by the investors and not by the users of the public service. As occurs in all businesses, the tax on dividends must be covered by the beneficiaries thereof. It is not for the regulatory entity to decide on the destination of such returns.
5.2.10 Validity of resolution RJD-009-2010 (existing plants): The methodology that was approved to define the rates for existing plants (Resolution RJD-0009-2010) will be applied only to those that have already had a contract with ICE. The methodology now proposed is for new plants; therefore, it is not legally appropriate for the proposed methodology to repeal the previous one.
5.2.11 Objectivity of the methodology: In some objections, it was expressed that the fact that ICE contributed to the design of the proposed methodology creates objectivity problems in its formulation. In this regard, it must be specified that the methodology proposed by the Regulatory Authority is based on several sources of information, and was proposed, in its original version, by ARESEP officials. Subsequently, it has been enriched with the input of different actors, including some of the operators; it is not a proposal from ICE. Although it contributed valuable inputs, the same can be said of other actors.
Precisely, the public hearing process that has been carried out is so that all potential interested parties in the process express their technical opinion and their objection, if they eventually consider that the proposal suffers from conceptual or methodological problems, or biases in favor of one of the parties.
5.2.12 Promotion of private investment in hydroelectric generation: The model proposed in this report is designed to stimulate private investment in hydroelectric generation, aimed at taking advantage of the opportunities opened by Chapter I of Law No. 7200. Two of the main elements of the model that would allow the achievement of this objective are the following: a) establishing a rate band scheme, through which a considerable margin is offered so that firms with costs different from the average have possibilities to sell energy to ICE; and b) opening the possibility of including an environmental component in the rate, the design of which will be submitted to a hearing in the short term. Other improvements with respect to the formulation of the model submitted to public hearing that allow for establishing more attractive rates for private generators are the following: a) recognizing, in the investment cost, the interest corresponding to two years of the grace period; and b) using for the application of the CAPM methodology the values obtained from an internationally recognized, verifiable, and periodically updatable source of information.
5.2.13 ARESEP's power to set any rate modality: Regarding ARESEP's power to establish any type of rate methodology, the Office of the Attorney General of the Republic (Procuraduría General de la República) has already ruled, on several occasions, for example in its Opinions: C-348-2001, of December 17, 2001, and C-003-2002, of January 7, 2002, as follows:
[...] according to Article 3 of the Law of the Regulatory Authority, the principle governing rate setting is that of service at cost (servicio al costo). Said article states in subsection b) on service at cost:
'... Principle that determines the way of setting the rates and prices of public services, so that only the costs necessary to provide the service are contemplated, which allow for a competitive return and guarantee the adequate development of the activity, in accordance with the provisions of Article 31'.
And it adds that [...] 'This last article [referring to Article 31 of Law No. 7593] obligates the ARESEP to take into account the model productive structures for each service according to the development of knowledge, technology, the possibilities of the service, the activity in question, and the size of the company. Likewise, it indicates as elements for setting the criteria of social equity, environmental sustainability (sostenibilidad ambiental), energy conservation, and economic efficiency defined in the National Development Plan. At the same time, the Authority is obligated to ensure that its rates respect the financial equilibrium of the providing entities. [...]' In fulfilling this principle [referring to the principle of service at cost], the Regulatory Entity may establish various methodologies [the methodology - says the Office of the Attorney General of the Republic in its Opinion C-348-2001, of December 17, 2001 - is the set of ordered operations, directed at a determined result, in this case setting the rates corresponding to the public service in question], which will be valid as long as they are based on the necessary costs of the service provider. We point out, to this effect, that beyond respecting the principles governing rate setting, the selection of the most adequate methodology constitutes a technical problem. A character which also applies to the work aimed at determining whether the selected methodology respects the aforementioned principle. (The original is not underlined.)
'The foregoing could be expanded to maintain that in the selection and application of any methodology, the Regulatory Entity must comply with the Law and with the technical criteria, which in any case can be an element to determine the regularity of its actions, as derived from Article 16 of the General Law of Public Administration (Ley General de la Administración Pública).' (The original is not underlined.)
From the foregoing, it can be concluded that the ARESEP has broad powers to establish and use the methodologies it deems convenient, as long as the principle of service at cost is respected, the financial equilibrium of the public service providers subject to the regulations of Law No. 7593 is not threatened, and they conform to the provisions of Article 16 of the aforementioned General Law. These powers include the setting of specific rates or rate bands. It should be kept in mind that a rate band is nothing more than a possible sequence of authorized rates. It must be remembered that setting rates through bands is common practice by public service regulatory entities worldwide.
Finally, it is appropriate to cite the recent Resolution 000506-F-S1-2010 - issued by Chamber One of our Supreme Court of Justice, at 9:45 a.m. on April 30, 2010 -, in relevant part:
[...]
CONSIDERING (CONSIDERANDO) [...]
III.- [...] Therefore, despite alleging the infringement of the principles of legality, reasonableness, proportionality, and legal certainty, it does not indicate how this occurs, but merely points out that the band system constitutes a delegation of powers. For this Chamber, it is clear, according to precept 5 of the ARESEP Law, that among its competencies is that of setting prices and rates for public services [...] Hence, for this Collegiate Body, the defendant, without exceeding its powers in resolution RRG-9233-2008, whose annulment is sought in this process, created a band system for determining the price of fuels at port and airports [...] In accordance with the stipulations of numeral 31 ibidem, the ARESEP may enable or create price calculation models for regulated services, being able to take into account variables external to the providers [...] Thus, in the specific case, the defendant [refers to the ARESEP] did not delegate its competence to RECOPE, but rather established the formula that it technically deemed most suitable and ideal for regulating the specific market [...] Consequently, the only thing the Refinery [refers to RECOPE, S. A.] does is apply it [...], but it is the ARESEP who continues to determine the rate for that market, through the arranged methodology. [...] V.- According to the foregoing, the illegalities invoked by the appellant have not occurred, therefore, the appeal must be rejected.
5.3 Summary and analysis of objections and interventions (coadyuvancias). Below is a summary of the main arguments of the objections and interventions admitted for the rate methodology on hydroelectric generation, as well as the respective analysis of each argument. The reasoning presented below must be complemented with the previous analysis of the main themes of the objections.
Asociación Costarricense de Grandes Consumidores de Energía, ACOGRACE, represented by Carlos Roldán Villalobos, ID 4-138-436, folios 247-249:
The proposed models effectively set a cap on hydroelectric and wind generation rates for new projects, but they are based on investment data and operating costs of reference rates. Effectively, the problem is that we have no certainty that those plants ARESEP is using to define these caps were hydroelectric or wind projects that were developed efficiently. And the problem with this is that plants that were inefficient during their execution are used as a reference.
We agree with what is expressed in the cited text, in that there is no certainty that the estimated average investment and operation values correspond to efficient productive processes. The option proposed in this report, of establishing a rate band around the investment average, allows this uncertainty to be overcome, within reasonable limits. In relation to this topic, see point 5.2.1 of this section.
Annex 2 (Anexo 2) presents in greater detail the sample of projects available to calculate the average and the standard deviation, elements that were used to define the rate band.
ARESEP must initiate the financial oversight of private electricity generation projects, requesting and reviewing the corresponding financial statements so that they reflect, to review if the real investments and the proposed investment models are being reflected. And they should consider regional investment and operation data, adjusted to the national situation.
We agree with what is expressed in the cited text, regarding the importance of having financial information from private generation operations within the framework of Law No. 7200, as input for the adequate setting of rates. Currently, little information of this type is available. In this report, it is proposed that operators selected to sell energy to ICE must submit periodic financial reports on their operations to ARESEP.
Stephen Yurika, ID 8-076-871:
ARESEP must include an environmental factor in the rate, because in reality in many international treaties signed with Costa Rica, the social and environmental costs of companies must be internalized and that must be included in the rates.
We agree with what is expressed in the preceding text. See in this regard point 5.2.5 of this report.
Jorge Arturo Alfaro Vargas, ID 2-306-651:
The objection is regarding the concept of a price cap (tarifa tope), since we are in a condition where a very detailed analysis is being done, very close to real cost, where it is not possible to reduce that price being used in the model, and using a price cap concept puts the investor at a disadvantage in that concept.
We agree with what is expressed in the preceding text. See in this regard what is expressed in point 5.2.1 of this section.
Rubén Zamora Castro, ID 1-1054-273, folios 97-102:
Because the model does not incentivize, or rather, it is proposed that there must be incentivization and the model disincentivizes. It is proposed that an effort must be made in that incentivization and no effort is seen to have been proposed.
On this topic, see what is expressed in points 5.2.1, 5.2.5, and 5.2.12 of this section.
Because the model, first of all, proposes price caps (tarifas tope), that is, that is the maximum that will be set. Price caps are proposed, with information that was barely available, a lot of information that comes precisely from the sole buyer, ICE, which can generate a conflict of interest, because in the end, it is the only one that will buy, and generators know that this is the maximum to which they will aspire.
From the point of view of the content of the act, there is also a problem, which is that, in principle, the content, says the law, must also be lawful, that is, it is not just about it sounding good mathematically or economically. The content must also be lawful. And when we go to analyze if the content is lawful, what must be established by the legal system, with the environment being a fundamental right. It turns out that, additionally, the Law of the Regulatory Authority in Article 31, which refers precisely to rates, establishes that environmental sustainability (sostenibilidad ambiental) must be considered when setting rates, so we have in the Constitution, in the Law, and even in the same report mentioning an environmental factor, it has been established at all levels that there must be an environmental parameter, that this is part of the lawful content of that act. However, in the model, there is no environmental factor. An omission that could even constitute unconstitutionality by omission, because the Constitution has it, the Law has it, and it is in the initial report itself.
Regarding what is stated in the transcribed text concerning the disadvantages of establishing a price cap scheme based on average costs, see what is expressed in point 5.2.1. In relation to the need to include an environmental component in the rate, see point 5.2.5.
We must also legally distinguish the difference between a public works concession (concesión de obra pública) and a public service. Because in a public works concession, there is an asset, but that asset is owned by the State and is before, during, and after. But when we are in a case like this, where we have an electricity generation plant and it is owned by X company, that is framed by private property rights and cannot be given the same treatment, which is what happens in some cases, exactly the same treatment as if it were a concession where the State provided the asset.
That is very dangerous because it could also be a constitutional violation of the right to private property. Why? Because one of the elements of the right to private property, which is fundamental in any democratic country, is the economic value that private property has. If I leave supposedly private property without the economic value it has, I am distorting its nature and turning the country into a totalitarian state where no value is assigned to any assets, nor is any type of importance given to them.
We agree with what is expressed in this position, in that the contractual conditions inherent to the sale of electricity to ICE within the framework of Law No. 7200 are different from those of public service concession contracts. Within the methodology, the updating of all variables is being included in each rate setting, including the investment item, which allows the project value to be updated in each rate setting.
P.H. Don Pedro, S.A. and P.H. Río Volcán, S.A. Represented by José Antonio Benavidez Sancho, ID 1-0478-0037, folios 112-171 of OT -029-2011:
ARESEP is calling a rate hearing to determine the "reference price caps (tarifas tope de referencia)" and does so with a methodology (CAPM) that minimizes the calculation of investor profitability considering the principle of service at cost. ARESEP intends with this signal that private generators compete within a legal framework that is not designed for those purposes, offering different and lower prices than the cap, widely contradicting several fundamental precepts of Law No. 7593.
With the transition from the price cap scheme based on average costs to one of a rate band around these, and with the change in the values of several parameters of the CAPM methodology, the possibilities of incentivizing private investment aimed at selling energy to ICE within the framework of Law No. 7200 are expanded. See in this regard points 5.2.1, 5.2.2, and 5.2.5 of this section.
The CAPM used by ARESEP implies a minimum profitability that potential investors would require, but specifically, the proposed method should consider at least the existence of a premium for the additional risk associated with the small size of the investments, and a premium for the additional risk associated with other factors, such as the little or no liquidity that such investments have by not being listed on efficient stock markets. For the reasons stated above, ARESEP is requested not to establish a reference price cap (tarifa tope de referencia), but rather, as Law No. 7593 indicates, to set a rate for the purchase and sale of energy between private generators and ICE under Chapter I (Capítulo I) of Law No. 7200, which must consider the risk sources associated with the size and characteristics of the investment.
With the CAPM methodology, the main risk elements associated with the activity for which the rate needs to be set are considered. In any case, with the establishment of a rate band, a margin is offered to accommodate projects facing particular situations. See what is indicated in points 5.2.1, 5.2.2, and 5.2.5 of this section.
Regarding the disadvantages of establishing a single rate to set the energy price to be purchased by ICE within the framework of Law No. 7200, see the last paragraph of point 5.2.1 of this section.
There does not seem to be evidence, within the ARESEP model, of the inclusion of a variable representing the criterion of environmental sustainability (sostenibilidad ambiental), indicated in Law No. 7593, although the context of the document on the model continuously discusses this topic.
Regarding the advisability of including an environmental component in the rate, see point 5.2.5 of this section.
The way in which this model intends to "attract" investment for the development of electricity with renewable resources and private capital participation is not clear, as the ARESEP document does not explain how the model achieves said objective.
Point 5.2.12 of this section explains the main aspects of the tariff model proposed in this report that tend to stimulate private investment for hydroelectric energy generation, within the framework established by Law No. 7200.
It is inadmissible that the model and calculation parameters were elaborated by ICE officials, being one of the parties in the energy purchase and sale relationship under Chapter 1 (capítulo 1) of Law No. 7200. This position does not seem balanced, especially when there is no evidence that, during the model formulation process, the opinion of private generators or ACOPE was taken into account.
Regarding what is expressed in the text cited in the preceding paragraph, see point 5.2.11 of this section.
It is necessary to resolve the situation of the tariff file ET-135-2008, its result, resolution RJD-009-2010 published in La Gaceta No. 109 of June 7, 2010, this being the Methodology for setting rates for existing private generators (Law No. 7200) that sign a new electricity purchase and sale contract with ICE. Furthermore, the permanence of a methodology for existing private generators makes no sense given the current processing of files ET-028-2011 and OT-029-2011.
In relation to the topic raised in the text of the preceding paragraph, see point 5.2.10 of this section.
Regarding the model presented, it does not include: the 15% tax on dividends established by the Income Tax Law (Ley del Impuesto sobre la Renta) in its Article 18, subsection "a" (Law No. 7092). This tax must be considered within the tax burden, which is reflected by using a global tax rate of 40.5%, which combines income tax and the tax on dividend distribution.
Regarding the 15% tax on dividends, as is the case with all businesses, these taxes must be covered by the beneficiaries of said dividends. The destination of tariff surpluses or returns (payment of dividends, taxes, etc.) are not topics that should be addressed by the regulatory entity.
As the rate is established in United States dollars, it must be clarified that it must be convertible at the selling exchange rate corresponding to the day on which the monthly billing for the delivered energy is made.
In this report, it is established that the conditions under which payments are made will be defined in accordance with what the parties establish contractually, and based on the applicable regulations.
In relation to the rate adjustment, it must be established that the value at which the energy sale was contracted must govern for the entire term of the contract, being periodically adjusted for internal and external inflation variables, as well as for the devaluation of the colón. Said adjustment must be made at least annually, or with the frequency required if the level of the indicators in the adjustment formula shows behavior that justifies it.
Regarding the updating of the variables that define the rate, see point 5.2.6 of this section.
For investment costs, it was proposed to use a database from the USA, made up of 1634 data points corresponding to hydraulic plants equal to or less than 20 MW, run-of-river (a filo de agua) or with reservoir for these sizes. The updating of investment costs to present value was carried out using the United States industrial producer price index (IPPI-EEUU), for the year 2011 (February). The result obtained for the investment cost is $3,396/kW. It should be noted that the value could be underestimated, as it does not consider local entry costs (sales tax), which for US plants represent local costs.
On what is expressed in the preceding paragraph, see point 5.2.7 of this section.
It is necessary to review in the future the information on terms, rates, and conditions of bank financing used in the rate calculation.
Regarding the financial conditions included in the proposed model, information was requested from financial entities so that it is accurate and corresponds to the current conditions for projects of this type. Furthermore, to address this point, the methodology considers a leveraged "beta," which implicitly incorporates the risk derived from project financing. (See point 5.2.7).
The CAPM model with which profitability is calculated must be adjusted so as to reflect the reality of the private electricity generation sector in CR. Given this, what is proposed is to include in the formula an additional variable called Company Risk (Riesgo Empresa), and which considers that the liquidity of the shares of a generation company of less than 20 MW is significantly lower than the liquidity of a basket of shares of energy companies of the same size and diversification as those in the USA but located in CR. Likewise, with this value, geological, hydrological, environmental, and construction risk can also be considered, with which the formula would be: Ke = Kl + βa *(Km - Kl) + RP + Remp, where it is proposed to use a β = 0.48 according to a database compiled by Dr. Aswath Damodaran (http://pages.stern.nyu.edu/-adamodar/), a tax rate of 40.5% to reflect the effect of the tax on dividend distribution, and a Company Risk (Remp) of 3% which is 2 times the normal deviation of the profitability of a hydroelectric project, 100% financed with equity, according to the 2008 Cubujuquí hydroelectric project of Coopelesca, R.L. and the P.H. San Joaquín of Coopesantos, R.L. for a cost of capital of 13.41% for a 13- and 20-year contract and 9.46% for a renewed 7-year contract.
Given the limitations of the Costa Rican stock market, what is cited as company risk is captured by country risk (which is the difference between the domestic market and the market of the United States of America). Furthermore, it must be considered that in general, regulated markets have a lower risk than competitive markets.
Regarding the definition of the β parameter, we agree with the proposed source, or another similar one that is public and reliable. See point 5.2.2 of this report.
In relation to the recognition of the tax on dividends, refer to point 5.2.9.
Regarding the rate adjustment, it was proposed that it be only on operating costs, this being inadequate due to the length of the proposed terms for the contracts, which correspond to 14 and 20 years of operation to which the construction period must be added. Within these terms, the entirety of the rate must be adjusted, as future flows are affected by inflation and devaluation. Regarding inflation, it is convenient to use the US Producer Price Index parameter using as a source the Bureau of Labor Statistics of the United States of America; for the rest of the components, it is proposed to use national inflation and the exchange rate of the Costa Rican colón against the dollar, as shown: P1 = Pi-1*((0.6*(IPPi/IPPi-1)+0.4*((1+(IPIi/IPIi-1))/(1+(TCi/TCi-1))).
In relation to the length of the contracts and the costs involved in the construction period, it is considered convenient to incorporate the financial expenses incurred during the grace period as an integral part of the investment cost. Regarding the updating of the different costs, see what is expressed in point 5.2.6.
Objections filed by: Asociación Costarricense de Productores de Energía (ACOPE), represented by Mario Alvarado Mora, ID 4-129-640, folios 367-406 of ET-028-2011 and 368-407 of OT-029-2011; Empresa Eléctrica Matamoros, SA, represented by Juan Carlos Madrigal Matamoros, ID 1-0771-0693, folios 251-283 of ET-028-2011 and 250-282 of OT-029-2011; Hidroeléctrica Aguas Zarcas, represented by José Jonathan Zúñiga Prado, ID 1-890-593, folios 194–232; and Inversiones La Manguera, S.A., represented by Mauricio López Cedeño, ID 1-869-512, folio 330-365 of OT-029-2011.
The concept of price cap (tarifa tope) has no legal or technical basis and, at least in the analysis conducted, would only promote price competition against the profitability of the investors.
It is, moreover, a competition that lacks a legal framework, since Law 7200 nor any other Law we know of is designed for this purpose; it is precisely for this that the special electricity commission of the Legislative Assembly is discussing the General Electricity Law bill, which will establish that type of competition. But the current frameworks do not contain it, and furthermore, the price cap concept contradicts some principles of Law No. 7593. It demands from the investor a lower profitability than that established by a methodology like the CAPM, promoting a potentially ruinous business and against the financial equilibrium of the company, a topic established in Law No. 7593.
In this report, the price cap scheme is replaced by a rate band one. See in this regard point 5.2.1 of this report. In relation to the application of the CAPM methodology, see point 5.2.2. Regarding the legal framework that allows ICE to establish contracts for electricity purchases within the framework of Law No. 7200, based on a rate band scheme defined by ARESEP, see point 5.2.13 of this report.
There is no evidence in the model of the criterion of environmental sustainability (sostenibilidad ambiental) established in Law No. 7593; there are important elements that should be considered to assess this criterion: the opportunity cost and externality of thermal sources. By opportunity cost, I mean that if thermal plants are not installed and the country needs renewable plants, thermal plants would have to be installed, with the difference in costs, with the difference in terms of emissions, with the difference in terms of foreign currency outflow, with the difference in terms of the image problems for a country.
Regarding the advisability of including an environmental component in the rate, see point 5.2.5 of this section.
ARESEP also cites the possibility that these rates decided through this process could be applied to private generators that sell to other authorized agents, but we are not really aware that there are other authorized agents or under what legal framework that could be done because the only possibility we are aware of is Ley 7200 for private generators. If the Regulatory Authority could enlighten us on this matter, we could really assess this issue because the case file does not show what those other options are.
The objector is correct; current legislation does not open the possibility for private generators to sell to other companies. Therefore, all references to that possibility in the methodology are corrected.
The models and calculation parameters, as indicated by the case file of this public hearing, were made by ICE, which is the buyer, which demonstrates the conflict of interest.
On the matter addressed in the preceding paragraph, see what is set forth in point 5.2.11 of this section.
On May 7, 2010, according to resolution RJD-009-2010, published on June 7, 2010, it establishes a methodology for setting rates for existing generators. The current rate proceeding contemplates the case of a rate for recontracting, and furthermore the proceeding we are now discussing differentiates between hydroelectric cases and wind cases, which is, let us say, an additional element as opposed to what was established in the previous resolution of the Board of Directors, and we consider it very prudent, in order to avoid confusion, to avoid contradictions, and to avoid errors, to request that ARESEP repeal and archive this resolution published on June 7, 2010.
The rate models that were discussed at the public hearing on April 6, 2011, are only applicable to new hydroelectric plants. On this matter, see what is expressed in point 5.2.10 of this section.
The model does not include the 15% dividend tax established by the Income Tax Law (Ley del Impuesto sobre la Renta) in its Article 18, subsection a. This is reflected by using a global tax rate of 40.5%, which combines the income tax and the dividend distribution tax.
On what is expressed in the preceding paragraph, see point 5.2.9 of this section.
The energy sale rate must govern for the entire term of the contract; this is very important because otherwise we will have no possibility of securing bank financing, and adjustments must be periodic for internal and external inflation variables and also for devaluation, because the financial component is also variable. Rates are variable; it is very difficult to find fixed rates in the financial sector, so a formula is proposed that is attached in the study we have submitted as documentation here at the entrance of this hearing for the Regulatory Authority's assessment.
On the duration of the contracts, see what is expressed in point 5.2.4 of this section. And on the subject of financing, see points 5.2.2 and 5.2.3.
For the investment cost for hydroelectric plants, ARESEP basically discards an important database and discards it because the update of its data reaches a value of 4,500 dollars per installed kilowatt and considers it too high. ACOPE updated the database, but not the entire database, taking the projects that truly pertain to this rate setting, which are run-of-river plants under 20 Megawatts or with reservoirs for those sizes, with the weighted average using the United States Industrial Producer index, which is the one recommended by ARESEP, resulting in a value of 3,396 dollars per installed kilowatt.
On what is expressed in the preceding paragraph regarding the estimation of investment costs, see point 5.2.7 of this section.
In the case of operation and maintenance costs (costos de explotación) for hydroelectric plants, to the data provided by ARESEP we have added the data that were included in rate case file 135-2008, which come from our associates. Also included are the administrative costs that were omitted by ARESEP and are very important, since it is not just operation and maintenance, but the administration of that operation and maintenance. And they are updated with the appropriate index, and the new adjustment curve is calculated. To select the value for the average plant size, plant capacities are considered that are basically in that group but are equal to or less than 20 Megawatts, and with the average data of these capacities the operation and maintenance cost is obtained, which is 146 dollars per kilowatt per year.
In the category of operation and maintenance costs, administrative, operation, and maintenance costs are included, which were taken from a representative sample of plants, updated to present value. On this matter, also see what is expressed in point 5.2.8 of this section.
On the subject of profitability (CAPM), conducting an analysis of the process for the case of Costa Rica, according to information provided not only by ACOPE associates but also by academics from the Tecnológico, we have an effect of adjusting this process to the Costa Rican case, and the values it yields are explained in the document. First, they are within the range of 15 and 18 and 27 and 96 the value of the academics from the Tecnológico, and those we calculated for specific cases in new contracts are 15, 81, and 9.45 for the matter of the investor's cost of capital profitability.
In the proposal presented in this report, several of the parameters used to apply the CAPM methodology were modified. See in this regard point 5.2.2 of this report.
Regarding the rate adjustment, it was proposed that it be only on the operation and maintenance costs, this being inadequate due to the lengthy terms proposed for the contracts, which correspond to 14 and 20 years of operation, to which the construction period must be added. Over these terms, the entire rate must be adjusted, since future cash flows are affected by inflation and devaluation. Regarding inflation, it is advisable to use the United States Producer Price Index parameter, using as a source the Bureau of Labor Statistics of the United States of America; for the rest of the components, the use of national inflation and the exchange rate of the Costa Rican colón against the dollar are proposed, as shown: P1 = Pi-1*((0.6*(IPPi/IPPi-1)+0.4*((1+(IPIi/IPIi-1))/(1+(TCi/TCi-1))) In relation to the subject of the construction period, it is indicated that the proposal in this report is including, as part of the project cost, the capitalization of two grace years. Regarding the updating of the different costs, see point 5.2.6 of this report.
Esteban Lara Erramouspe, ID 1-785-994, 408-540:
The rate established by ARESEP does not provide an adequate profitability for the activity carried out. ARESEP's rate model is methodologically correct, but the information applied to it is incorrect, and the signals ARESEP is sending to the market do not at all incentivize the participation of private enterprise.
Point 5.2.12 of this section explains the main aspects of the rate model proposed in this report that tend to stimulate private investment for hydroelectric energy generation, within the framework of Ley 7200.
Regarding the rate structure, the seasonality concentrates too much income in 5 months of the year, which, let us say, financially is sometimes not logical for those who have financial burdens. Since it is observed that 66% of the income is generated in 5 months of the year, while in the remaining 7 months only 34% comes in, which creates a significant imbalance to cover the current expenses of an indebted company.
The rate structure is designed so that all the financial resources required by the project are generated. The management of funds throughout the year falls within the scope of administrative management by the investor. The annual periodicity of energy purchases responds to energy demand requirements of the National Electric System (Sistema Eléctrico Nacional) and is therefore a condition external to the rate model design.
Regarding the actual production of a plant, we see that the method used by ARESEP is very simplistic; they even make their calculations at the time of application with an efficiency of 0.91. I imagine it is a very new technology, and we conducted a real operational analysis of a plant, that is, introducing the hydrological factors, the actual equipment efficiencies at their different operating levels, and it yields that instead of being 14.35 Gigawatts per year in the case of a 2.5 plant, it would be approximately 14.7 Gigawatts, and although the variation seemed positive, the value in the formula is in the denominator, which again reduces the rate.
The determination of the plant factor (factor de planta, Fp) is made from the average of the plant factor values from several years, corresponding to national private hydroelectric plants with installed capacities equal to or less than 20 MW, which have been generating during a substantial portion of the respective year (10 or more months). It is, therefore, an estimate based on a large amount of actual data from plants similar to those that can sell energy to ICE within the framework of Chapter 1 of Ley 7200.
It is not understandable how the profitability of an investment must decrease upon the expiration of the contract term, since what incentivizes in a real investment environment is to sell those plants and seek new investments that generate greater profitability. This differentiation violates the principles of equal treatment in an open market, and the only one who would benefit would be the intermediary (ICE), which would reduce its energy purchase costs and would not necessarily transfer it to its consumers (at least to date it has not done so with the plants that renewed contracts under the terms of Ley 7200).
In relation to the matter addressed in the preceding paragraph, see point 5.2.4 of this section.
In the case of the investment and contract term, it must be clarified whether the financing is the initial one when subscribing the financing or the form in which it must be applied. In the tax part, only the application of income taxes is foreseen, and dividend taxes are not being contemplated. Existing legislation applies a 15% tax rate to profits distributed among the partners of the companies.
In relation to the matter of the recognition of the dividend tax, see point 5.2.9 of this section.
The interest rate applied to the investment must be the effective rate, that is, one that includes origination costs and commissions, unless they are included as part of the total investment costs.
The interest rate was estimated using the rate periodically calculated by the Central Bank of Costa Rica for loans in dollars to the industrial sector. On this matter, see point 5.2.3.
In calculating the cost profitability, ARESEP proposes using a somewhat outdated beta and, that is, an average leverage of projects that is not necessarily the reality for each one of the projects.
This report adopts the recommendation expressed in several objections, regarding using as a source the information provided and published on the Internet by Dr. Aswath Damodaran, professor at the University of New York. See in this regard point 5.2.2.
José Daniel Lara Aguilar, ID 1-1326-0817:
The problem starts because despite ARESEP's intent to stimulate investment by using terms of reference provided by ICE, being the sole buyer, it fails to reflect the activities of energy costs or the investment markets, and, well, that has been mentioned previously, but what happens is that by failing in this task, it makes the model, while mathematically correct, lack real applicability, and we will touch very clearly on the concept of reasonable profit, which clashes with the concept of a price cap (tarifa tope) being implemented, since a rate lower than the result of a non-reasonable profit. So, if we say it is a price cap for a reasonable profit, then a lower rate would be a non-reasonable profit.
This report proposes a rate band scheme, not a price cap. See point 5.2.1 of this section.
The value of the "beta" parameter of the CAPM model used in this report says they are based on reports 499-DEN-2000 and 837-DEN-2000, which are not easy to find since they are from the year 2000, but after an almost library-like effort, finding them here at ARESEP, let us see a couple of details and phrases that are in those same reports. The first thing we can see is that here it is established that since the year 2000, those limitations that Mr. Álvaro mentions are known.
We are in 2011; the knowledge of the Betas for capital returns has not been resolved with certainty. This raises serious questions as to whether those reasonable profits that these reports seek can be achieved with information that has not been attempted to be updated, and let us see here the first thing, which is the sources. It says very clearly, and I will read it, "the limitations originate in the case of the Betas, because when consulting the probable information source on the Internet, it should be noted that a credit card number must be entered to continue with the query." This means, then, that the procedures for rate setting are based on free information from the Internet and that the necessary investments have not been made to acquire them from sources that are a little more serious or a little more reliable.
In relation to the beta value, the recommendation expressed in several objections is adopted, regarding using as a source the information provided and published on the Internet by Dr. Aswath Damodaran, professor at the University of New York. See in this regard point 5.2.2.
Tobías Cossen, ID 1267600140826:
What ARESEP, with that rate and with that model with a price cap of 9.4 cents, does is impede private investment in projects. Because with that rate, there is clearly no project that can be carried out.
The improvements introduced in the rate model proposed in this report make it possible to enhance its capacity to stimulate private investment aimed at selling hydroelectric energy to ICE within the framework of Ley 7200. See in this regard the rate estimation in annex 3 of this report.
Compañía Eléctrica Doña Julia, represented by Ronald Álvarez Campos, ID 2-530-396, folios 283-328:
Related to the contractual terms that the model proposes. In the case file, ARESEP emphasizes that the aim is to incentivize the participation of private entities in generation; this is not only incentivized thanks to a good rate or a good legal framework. There is a factor we are leaving aside, and that is business continuity. We all know, and the same case file attests, that hydroelectric projects have a useful life not of 20 years, not of 13 years, they have useful lives of 40 years or even more. What happens with these projects after their contracts? Where are we guaranteeing the business continuity of these investors?
See what is expressed regarding contract periodicity in point 5.2.4.
In the 2008 model, the resulting rate with the parameters used by ARESEP was to set the rate for existing plants at 5.74 dollar cents per kilowatt/hour generated. This is evidently lower than the 6 cents established in the 2002 resolution and clearly lower than the 7.72 cents that today, in 2011, are being set as the acceptable rate for recontracting a plant. The repeal of resolution RJD-009-2010 is requested, that the model proposed for this hearing be applied to existing generators, and not only that it be applied but that the values be truly updated in such a way that they reflect the reality that allows an investor to find it attractive to bring a plant to this country.
In relation to the matter of the rate methodology for existing plants, see point 5.2.10 of this section.
Federico Fernández Woodbridge, ID 1-844-157:
A fixed rate; what ARESEP is proposing is to adjust the operation and maintenance costs, that is, possibly the employees can continue buying their basic food basket and I can buy spare parts and that kind of thing, but what happens with the dividends. In other words, the investor enters a project to make money, and that money must at least preserve its purchasing power, and what is happening with the dollar today is very concerning. So, I wanted to start with that point.
The updating of costs in the proposal of this report makes it possible to recover their purchasing power, given that they are subject to fluctuations over time generated by the evolution of macro-prices (local inflation, exchange rate, and external inflation).
The fair rate of return of 11.43 that ARESEP is proposing is very interesting because the financing bank of the region par excellence is the Central American Bank (Banco Centroamericano), and the cut-off rate of the Central American Bank is 12, that is, any project that any of the people here take to the BCIE for financing, they are going to say, no, look, I cannot finance this project, because I have a cut-off rate of 12%.
Based on the profitability estimation method established in this report, it is projected that it will be higher than 12% and therefore facilitates that the projects will be bankable. See point 5.2.2 of this section.
Allan Broide Wohlstein, ID 1-1110-0069:
If a price cap is set, the concept of the incentive is lost; one falls into a problem called the "winner's curse" or the curse of the winner, which is a phenomenon that occurs in auctions or bidding processes, and one example is the project that won in the last bidding, and it also places it in an asymmetric negotiating position with the single buyer, as others mentioned, that is, there is no clarity on how the final price would be determined.
In the event of setting a price cap, they should not use the average price but rather the marginal price, right? They should use the highest costs and the lowest efficiency in order to include all projects and not fall into the vices, let us say, or the problems that this implies.
Given the time desired to bring in new projects, the best is to define it once and for all. If you set the price, we no longer have to enter into a year-and-a-half process with ICE to determine what the new price will be.
There is agreement with what is expressed in the preceding text, in relation to the disadvantages associated with establishing a price cap. On the other hand, regarding the drawbacks of establishing a single rate to set the sale price of the energy to be purchased by ICE within the framework of Ley 7200, see point 5.2.1 of this section.
Hidroeléctrica Caño Grande, represented by Alonso Núñez Quesada, ID 4-160-063, folios 233-246:
This object or this existing philosophy in the mathematical model has serious friction with what is established in Ley 7593, Law of the Regulatory Authority for Public Services (Ley de la Autoridad Reguladora de los Servicios Públicos). The rate-setting power, as is correctly indicated and has been indicated in various rulings by the Constitutional Chamber (Sala Constitucional), is a power-duty, but more than that, it is a sovereign power that the Law attributed to a decentralized entity so that these officials, as officials and abiding by the principle of legality, can then apply existing legislation. The guidelines for that rate-setting power are clearly established in Articles 3, 5, 25 to 29, and 31 of Ley 7593. And it turns out that, being a sovereign power, because it effectively affects the legal sphere of private parties, and that affecting the legal sphere of private parties has its vicissitudes because it signifies the sovereign power of the State to restrict, to limit, or to eliminate consolidated legal situations that exist in a contractual relationship.
This means that, according to what is sought in the mathematical method, and if it can be observed, there is ultimately a lack of competence at the moment the respective price fixing is carried out between the generator and the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad). Why? Because there is no rule that authorizes the Regulatory Authority for Public Services to establish a rate that determines a reference cap and allows the generator and ICE to establish prices of the contractual relationship. That would imply a delegation of that rate-setting power, and there is no rule that establishes that power of delegation on the part of the Law so that a private party can establish a price, which is public, and precisely there is where friction exists regarding the concept of legal reserve. And why a legal rule must exist that establishes that possibility of delegating, of delegating that power. The model refers to the price being determined between the generator and ICE; they are the ones who set the rate, not ARESEP. The providers are going to define a rate.
Where precisely the cross-cutting axis of the Law of the Regulatory Authority for Public Services is that, as an entity, ARESEP comes to be the impartial entity that comes to determine that rate, that power, that economic compensation that is the fair one that must be given to the provider of the public service. Indeed, I have included here that if a band system concept is given, because from the cap to zero there is a band, then that would imply effectively disregarding the competencies held by ARESEP due to the lack of application, which is a defect; lack of competence is one of the gravest defects that administrative conduct has. And so, Articles 3, 5, 29, 30, and 31 of Ley 7593 are violated by that lack of application.
The State recently, in 2009, through legal opinion 0J-66-2009, has said that the establishment of a band system in a rate is illegal and is an illegitimate conduct that the regulatory entity would deploy. I believe that, although the legal opinion is not binding, one must keep in mind that it is a source of administrative law as jurisprudence. And this effectively has a hint that it must be assessed at this procedural stage, that because we are in the preparatory stage, these matters related to the powers, with that sovereign power, with the Legal Reserve that the regulatory entity has, must be observed, where it is established that it cannot delegate that competence to private parties in the concession relationship.
Another effect that can occur with a reference rate as a cap is that there may be an effect of service liberalization because there can effectively be a liberalization of the rate-setting powers when there is a liberalization of the public service, as is clearly established in Article 50 of the General Telecommunications Law (Ley General de Telecomunicaciones), where it says that the rates for telecommunications services available to the public are only fixed by SUTEL initially, but as the market becomes more efficient and effective competition can be guaranteed, rates will be fixed by the providers.
It is clear that if there is no liberalization of the public generation service, there can be no transfer of the exercise of sovereign power in rate setting to that generator and ICE. Because otherwise we would then enter into a liberalization of the public service contained in Article 5 of Ley 7593.
Regarding the legal framework that allows ICE to establish contracts for electricity purchases within the framework of Ley 7200, based on a rate band scheme defined by ARESEP, see point 5.2.13 of this report.
Manrique Rojas Araya, ID 1-893-107:
A list of paper projects is used; none of them, as far as I know, are built and operating projects, so they are merely expectations, and we have seen that many of these projects are done with very poor engineering studies where the cost projection does not adjust to reality. And I do not understand why the use of data that do exist is omitted, and some of them are included in the same Regulatory Authority, for example, in ET-161-2010, it states what the cost of the Sigifredo Solís Hydroelectric Plant was, which, although it is more than 20 Megawatts, consists of a 24 and a 2 Megawatt plant.
To estimate investment costs, the best information available was used. In this regard, see point 5.2.7 of this section.
On what basis is the value defined to be calculated at 10 Megas. Why 10 Megas, why not 8, why not 5, why not 4?
The investment cost values were not established with respect to a model plant of 10 MW. With the available information, average costs were estimated for the entire range of installed capacity under 20 MW. In this regard, see point 5.2.7 of this section and annex 2 of this report. Regarding the calculation of the operation and maintenance cost, a value corresponding to the mean value of the installed capacity range allowed by Ley 7200 was indeed estimated. Given that there are very few operation and maintenance cost data for that range, a conservative criterion was chosen when estimating that value. See the explanation of that calculation in Anexo 2 of this report.
The risk-free rate is a little different, but it is simply because a broader base is being used. Now, the unlevered Beta, a lot was already said about that in a previous presentation. Totally outdated data from 11 years ago is used, and those reports, DEN-499 and 837, were not in the case file; one of the presenters was able to locate them, but I did not find them in the case file at least. And, why if in 2008 a database was used that is quite prestigious, that of Professor Damodaran from the University of New York, why is it not being used now, why if in 2008 an updated database was used at that time, in 2011 do we go back to 2000?
The value of the "beta" parameter being used is the one that comes from Professor Damodaran's Internet site. See in this regard point 5.2.2 of this section.
The investment cost. Data should be used for plants under 20 Megas, with plants already built, not paper plants. If we are going to use plants from elsewhere, it does not matter, but let us make the corresponding adjustments; there are plants that have very preferential tax treatment in other latitudes. Regarding the operation and maintenance cost, let us include all costs, let us include the private plants, the information already provided in 2008; for ICE's plants, let us include all costs, not just a part, and yes, we suggest that the reference value for the calculation is not 10 Megawatts, but rather the point where the curve begins to have an inflection.
The investment cost values were not established with respect to a model plant of 10 MW. With the available information, average costs were estimated for the entire range of installed capacity under 20 MW. In this regard, see point 5.2.7 of this section.
Furthermore, financial conditions cannot be established as constant on day 1 for the entire life of the contract; there is variability. Taxes. All taxes must be included, not just part. Profitability. One must be consistent; independent, verifiable sources must be used, and the CAPM methodology must be adjusted to the reality of the sector and the country.
In relation to the matter of financial conditions, see point 5.2.3 of this section. In relation to the matter of the recognition of taxes, see point 5.2.9 of this section. And in relation to the CAPM methodology, see point 5.2.2 of this section.
Regarding the price cap, it should be a definitive rate. And as for the adjustment formula, it must be complete, not partial, not just adjusting operation and maintenance; that does not allow the project to be bankable.
In relation to the rate scheme to be used, see point 5.2.1 of this section. As for the matter of cost updating, see point 5.2.6.
Claudio Volio Pacheco, ID 1-302-793:
And without financing, it is essential that there are adequate rates and bankable rate schedules, that is, rates must be predictable, and as said earlier, they must give tranquility to the banks, and among those costs that exist and that do not appear in the model, there are costs such as interest during construction and another series of costs, the reserves that exist and so on, for which one must keep their feet on the ground and know what it costs to finance a plant, because, as I say, if there is no financing, there are no plants.
In relation to the matter of financing, see point 5.2.3 of this section.
Hidro Venecia S. A., represented by Rafael Rojas Rodríguez, folios 172-193:
To use the CAPM model, it is necessary to employ the model developed by the Business Administration School of the Technological Institute of CR (Instituto Tecnológico de CR), for the context of an emerging economy.
In relation to the use of the CAPM methodology, see point 5.2.2 of this section.
The investment cost per installed kW, used in the ARESEP proposal, is based on hydroelectric projects, many of which are unbuilt, mainly from Panama (10 out of 15 projects), which is why it does not provide a picture that faithfully reflects the investment cost for Costa Rican hydroelectric generation projects, since financial costs are lower, the dividend tax (15%) is not paid, in addition to using only three references from Costa Rican hydroelectric plants to support the cost of a generation model, and furthermore it was adjusted using the U.S. Bureau Composite Trend index, which does not reflect the increase in local labor costs.
Investment costs were estimated using the best information currently available. In this regard, see point 5.2.7 of this section. Regarding the recognition of the dividend tax, see point 5.2.9 of this section.
Regarding the financial cost, the ARESEP model proposes an interest rate based on offers presented in the 2006LI-00043-PROV tender for the hydroelectric BOT promoted by ICE and from the Vara Blanca and El Angel, S.A. hydroelectric projects. For this cost, one must consider not only the interest rate, but also the arrangement and disbursement fees, the liquidity reserves required by the financial institution, and any other cost related to obtaining financing.
As indicated in point 5.2.3, the method for estimating the interest rate was changed compared to what was proposed in the submission to the public hearing.
Indexation of the fixed capital quota must be done semi-annually, in order to maintain the purchasing power of the corresponding payments, using the following equations: Cen = Cen-1*(IPPIcrn/IPPIcrn-1) and Mn = Mn-1*(IPPIusan/IPPIusan-1), and this should also be applied during the construction period.
Regarding the method for indexing the tariff, see point 5.2.6 of this section.
With respect to the economic life of the project, to encourage investment in hydroelectric projects, it is advisable that the contracting periods equal the economic life of the project.
Regarding the periodicity of contracts, see point 5.2.4 of this report.
The concept of a price-cap tariff (tarifa tope) is not appropriate to establish as a reference. Article 6, subsection d of Law No. 7593, the Autoridad Reguladora de los Servicios Públicos Law, establishes the power to set tariffs, but Article 31 states that tariff fixations that undermine the financial equilibrium of the public service-providing entities are not permitted. Therefore, ARESEP cannot delegate its function to other entities, which it would do if it established a price-cap tariff.
A price-cap tariff scheme is not established, but rather a tariff band scheme. In this regard, see point 5.2.1 of this section. Regarding the legitimacy of establishing a band and not a specific tariff, see point 5.2.13 of this section.(.)
VI.In extraordinary session 050-2011, of August 8, 2011, the minutes of which were ratified on August 10, 2011; the Board of Directors of the Autoridad Reguladora resolved by majority: 1) To fully accept official communication 122-CDR-2011 of August 5, 2011. 2) To establish the model for determining reference tariffs for private electricity generation for new hydroelectric plants. 3) To consider the response to the opponents to be what is indicated in Considerando V of this resolution and to thank them for their valuable participation in this process. 4) To instruct the Centro de Desarrollo de la Regulación to prepare and submit for the knowledge of this Board of Directors a proposed methodology to determine the environmental factor as soon as possible, as ordered. Therefore:
THE BOARD OF DIRECTORS OF THE AUTORIDAD REGULADORA DE LOS SERVICIOS PÚBLICOS; RESOLVES:
I.-To establish the following: "Reference tariff methodology for new private hydroelectric generation plants," General Provisions (This section was eliminated by resolution No. RJD-027-2014 of March 20, 2014) Objective The ultimate objective of the reference tariff model defined in this report is to provide the necessary tariff incentives so that, in the shortest possible time, the country takes advantage of the instruments defined in the first chapter of Law No. 7200 to replace the greatest possible proportion of energy generated from thermal sources with energy generated from renewable sources. In this regard, ICE estimates indicate that it can currently contract with private electricity generators that produce from renewable sources for up to a maximum of 183 MW.
(*) Scope The model presented is applicable to the tariff fixations for energy sales to ICE by private generators that produce with new hydroelectric plants, within the framework of what is established in Chapter 1 of Law 7200, for those purchases and sales of electric energy from new private hydroelectric plants with conditions similar to those established by Law 7200, which are legally feasible and must be regulated by ARESEP, and for those purchases and sales of energy from new plants that produce with non-conventional sources for which an approved specific tariff methodology does not yet exist from the Autoridad Reguladora.
The tariff band applicable to private generation with non-conventional energy sources for which no specific methodology exists is the tariff band estimated through this methodology, without considering seasonal structure.
A new plant is understood to be one whose investment in physical capital has not yet been used in any electricity production process. Consequently, new plants by definition could not have generated energy that was sold under any contract for the purchase and sale of electricity or for self-consumption purposes.
Source of information (The preceding paragraph was thus added by resolution No. RE-0014-JD-2024 of April 4, 2024) The calculation of operating costs (costos de explotación) shall be done using the financial-accounting information of the group of plants to which this methodology applies, and the calculation shall only consider the costs necessary to maintain and operate the power contracted by ICE, which corresponds to the regulated public service.
(The preceding paragraph was thus added by resolution No. RE-0014-JD-2024 of April 4, 2024) This information must be justified in accordance with Article 33 of Law 7593; it shall not include costs that do not correspond to those necessary to maintain and operate the power contracted by ICE, nor those defined in Article 32 of that same Law, and shall only include the useful and usable costs necessary to provide the regulated public service, which is the sale of energy to ICE. The financial-accounting information from the latest available annual report shall be used, as detailed below, as of the initiation date of the tariff fixation process, with the opening of the respective administrative case file (expediente), in accordance with the regulatory accounting provisions issued for this sector.
(The preceding paragraph was thus added by resolution No. RE-0014-JD-2024 of April 4, 2024) The cutoff date for the input data for the variables to perform the tariff calculation shall be the fiscal year-end date established at the national level, that is, December 31 of the year prior to the start of the tariff fixation procedure, or failing that, the national fiscal close established by law.
(The preceding paragraph was thus added by resolution No. RE-0014-JD-2024 of April 4, 2024) Additional considerations (The preceding paragraph was thus added by resolution No. RE-0014-JD-2024 of April 4, 2024) In the event that a source of information required for the calculation of any variable in this methodology ceases to be available for use, the Intendencia de Energía (or the Aresep body that the Board of Directors may designate as responsible for the tariff fixation process for this service) shall have the authority to substitute this source of information with another reliable source, based on public information, issued by a competent entity, and that technically achieves the required purpose. For this, a detailed justification for the change must be set forth in the report supporting the tariff study in which the new source of information will be incorporated, in a separate section or an independent section.
(The preceding paragraph was thus added by resolution No. RE-0014-JD-2024 of April 4, 2024) When an additional variable is indispensable for performing intermediate calculations, the Intendencia de Energía (or the Aresep body that the Board of Directors may designate as responsible for the tariff fixation process for this service) shall have the authority to apply these calculations using the criteria indicated in the preceding paragraph.
(The preceding paragraph was thus added by resolution No. RE-0014-JD-2024 of April 4, 2024) (*)(The point called "scope" was thus added by resolution No. RJD-027-2014 of March 20, 2014) General formulation of the model To achieve the mentioned objective, a tariff model has been defined that stimulates private investment associated with hydroelectric generation plants with capacities equal to or less than 20 MW, capable of operating within an acceptable range of costs and operational efficiency. To this end, a tariff band is established that allows ICE to offer electricity purchase prices with which the offeror can obtain sufficient income to cover their operating costs, recover the investment made, and obtain a reasonable return (rentabilidad) for the level of risk associated with the electricity generation activity.
The tariffs per KWh estimated through the proposed model include operation and maintenance costs, financial costs, and the net return to the investor.
(*) In general, the economic equation for the supply of electric energy can be expressed by equating costs plus return with income, from the perspective of the private generator. In this way, the following equation is obtained:
CE + CFC = IR (Equation 1) Where:
CE = Operating costs (Costos de explotación) CFC = Fixed capital cost (Costo fijo por capital), which is the sum of the recovery of the investment (RI) and the return (r). Thus, CFC = RI + r RI = Recovery of the investment (depreciation) R = Return (Rentabilidad) on investment IR = Required income, which is the result of multiplying the tariff "p" by the energy sales "E", that is, IR = p x E p = Sale tariff E = Sales (amount of energy) Solving for p:
From the above it follows that, for the purposes of this model, the tariff depends on the electricity sales expectations, the operating costs, the capital recovery (depreciation), and the return.
(*)(The preceding formula was thus amended by resolution No. RJD-17-2016 of February 8, 2016) Where:
CE = Operating costs (Costos de explotación) CFC = Fixed capital cost (Costo fijo por capital), which is the sum of the recovery of the investment (RI) and the return (r). Thus, CFC = RI + r RI = Recovery of the investment (depreciation) r = Return (Rentabilidad) on investment fa = Total or unit environmental factor (factor ambiental) IR = Required income, which is the result of multiplying the tariff "p" by the sales of energy "E", that is, IR = p x E p = Sale tariff E = Sales (amount of energy) Solving for p:
From the above it follows that, for the purposes of this model, the tariff depends on the electricity sales expectations, the operating costs, the capital recovery (depreciation), the return, and the environmental factor.
The environmental cost would be incorporated into the price determined by the general formula, becoming an integral part of the final price. The approval of the mechanism and methodology corresponding to the environmental component, as well as its respective amount, must be processed through the procedures established in the current legal framework (convening and holding a public hearing).
(*) Sales expectations (E) The production of the plant also depends on the availability of the installed capacity for generation, which in turn depends on the physical characteristics of the utilization (aprovechamiento), the technology used, the age of the facilities, as well as the company's maintenance practices. In turn, the distance between the plant and the delivery point is important due to the losses associated with transmission.
In any case, it is possible to express all these factors in terms of a capacity utilization factor (Factor de Planta). This is a commonly used factor that can be associated with each type of primary source; a value for this parameter can be established applicable to each type of source, making it possible to differentiate the sale tariff based on the primary source.
In summary, to estimate the amount of energy that will be used to determine the applicable tariff, the following equation is considered:
Where:
E = Annual sales (amount of energy).
C = Average contracted capacity of the plants in MW.
H = average amount of real annual hours in which the plants were in operation delivering energy for sale to ICE over the last 5 years.
fp = Average plant factor (Factor de planta) over the last 5 years of the plants used for the calculation.
Although there is a scale effect in electricity generation plants, especially regarding installation costs and operating costs, it is possible to simplify the model and perform the analysis for a plant of unitary size (unit contracted capacity), whereby the previous formula is reduced to:
The annual plant factor (fp) of a power plant, for this case, is defined as the quotient between the actual energy generated by the power plant during a period and the energy generated if it had worked at full load during that same period, according to the contracted values, using the following formula:
Where:
Fpi,a = Plant factor for each plant in each year.
Egi,a = Amount of energy in kWh that each plant generated in each year.
Pconi,a = Contracted power in kW, per plant in each year.
Hi,a = amount of hours in which the plant was in operation delivering energy for sale to ICE in each year.
i = Each one of the plants in the group.
a = Each one of the 5 years.
The value of the average plant factor over the last 5 years used in this model shall be obtained from data of Costa Rican private hydroelectric plants with installed capacities of less than 20 MW, on which ARESEP possesses such information. This value shall be updated in each tariff fixation. For this purpose, data from the latest five-year period on which ARESEP has information shall be used.
The value of the plant factor shall be calculated as follows:
For each of the years in the five-year period, an arithmetic average of the values of each individual plant shall be estimated, according to the following formula:
Where:
Fpa = Average annual plant factor for the group of plants.
Fpia = Plant factor for each plant in each year.
i = Each one of the plants.
a = Each one of the years.
n = Index representing the number of plants.
Subsequently, the arithmetic average of the five resulting values shall be obtained, and the result is the plant factor data to be used in the tariff fixation, calculated in the following way:
Where:
Fp = Average plant factor for the group of plants.
Fpa = Average annual plant factor for the group of plants.
Q = Number of years used to calculate the average.
a = Each one of the years.
(*)(The preceding subsection Sales expectations (E) was thus amended by resolution No. RE-0205-JD-2021 of September 28, 2021) Operating costs (CE) Operating costs include the costs necessary to maintain and operate a plant under normal conditions for our country. They do not include depreciation expenses, financial expenses, taxes associated with profits, or earnings.
This value shall be updated in each tariff fixation, using for its indexation the "manufacturing price index" (índice de precios a la manufactura) of the Banco Central de Costa Rica (BCCR.), with the data from the latest cut available as of the date of opening of the tariff case file.
(The preceding paragraph was thus amended by resolution RE-0014-JD-2024 of April 4, 2024) The calculation method was as follows:
- a)Data on operating costs are taken from a sample of hydroelectric plants operating in the country, with different installed capacities.
- b)A regression exercise is performed to estimate the curve that best approximates the function relating installed capacity and operating cost.
(Subsection b) above was thus amended by resolution No. RJD-027-2014 of March 20, 2014) c) The value of the mentioned function corresponding to a 10 MW plant is used, which is the median value of the range permitted by Chapter 1 of Law No. 7200.
- d)In each tariff fixation, any new operating cost data that may have been obtained, corresponding to hydroelectric plants operating in the country, are incorporated.
The calculation of the operating cost value with the data available at the time this report was drafted is presented in Annex 1 (Anexo 1). This value shall be updated in each tariff fixation.
Fixed capital cost (CFC) Through the component called "Fixed Capital Cost" (Costo Fijo por Capital, CFC), investors are guaranteed returns comparable to those they could obtain in other investments with a similar level of risk, in order to make the alternative of participating in the development of the plant attractive.
The CFC depends on the amount of the investment, the level of leverage used (debt/equity contribution ratio), the financing conditions (interest rate, payment method, and term), the recognized rate of return, the investment recovery period (economic life), the age of the plant, and the applicable income tax rate.
This Fixed Capital Cost item is determined by the following equation:
CFC = RI + r = M x FC (Equation 4) (The preceding equation was thus amended by resolution RJD-161-2011 of October 26, 2011) CFC = Fixed capital cost, which is the sum of the recovery of the investment (RI) and the return (r).
RI = Recovery of the investment (depreciation) r = Return (Rentabilidad) on investment (*)RI = Recovery of the investment (depreciation) (*)(The preceding point was thus added by resolution RJD-161-2011 of October 26, 2011) Where:
r = M x FC (Equation 5) Where:
r = Return (Rentabilidad) on investment M = Total amount of the unit investment FC = Factor reflecting the conditions of the investment The FC factor depends on the conditions under which the financing is established and on the age of the plant.
The value of each variable that determines the CFC shall be updated in each tariff fixation.
6.1.1 Investment conditions factor. The FC factor reflects a mean value of the investment return applicable throughout the entire economic life. Within this context, during the first years, the net profit received by the investor is low (and less than the loss of value of the plant), since a portion is being allocated to progressively "buy" the participation of the financial entities in the investment made.
The FC factor is calculated using an equation that allows determining the amount of the uniform quota, applicable throughout the entire economic life, required by the plant owner to recover their investment and obtain a reasonable return. The equation is as follows:
Where:
ψ = Leverage (apalancamiento) (debt ratio) (%) ρ = Return (Rentabilidad) on equity contributions (%) t = Income tax rate (%) i = Interest rate (%) e = Age of the plant (years) d = Term of the debt (years) v = Economic life of the project (years) The components of the FC factor formula are defined below.
Leverage (ψ) The financial leverage value is used to estimate the relationship between debt and equity capital, which is part of the formula for the leveraged beta (beta apalancado) defined later.
To perform the calculation, an average of the financing information for electric projects available at the Autoridad Reguladora shall be used.
This value shall be updated in each tariff fixation.
Return on equity contributions (ρ) The calculation of the return on equity contributions is determined using the method called the Capital Asset Pricing Model, commonly known as CAPM.
The CAPM method is based on considering that changes in the return of an asset are related to the risk associated with it and can be separated into two major components: the risk related to the market as a whole (systemic risk) and that derived from specific investments (specific risk).
The CAPM determines the cost of average equity capital for each industry, according to the following formula:
ρ = KL + βa * PR + RP Where:
ρ = Return (Rentabilidad) on equity capital contributions.
KL = Risk-free rate, which corresponds to an investment alternative that has no risk for the investor.
PR = Risk premium (Prima por riesgo). It is defined as the difference between the risk-free rate and the market rate of return.
RP = Country risk (Riesgo país). It is the risk of an economic investment due only to specific and common factors of a certain country.
βa = Leveraged beta (Beta apalancada) of the investment. It is the co-variance of the return of a given asset and the market return. It is called "leveraged" when part of the investment is financed with debt.
The leveraged beta is obtained from the following formula:
βa = βd * (1 + (1-t)* D/Kp) Where:
βa = Leveraged beta (Beta apalancada).
βd = Unleveraged beta (Beta desapalancada).
D/Kp = Ratio between debt and equity capital (estimated through financial leverage) t = Tax rate on income.
The parameters required to be calculated to estimate the return on equity contributions are the following: risk-free rate, risk premium, country risk, unleveraged beta, debt-to-equity ratio, and income tax rate. The source for each of them is as follows:
Risk-free rate (KL): It is the nominal rate (TCMNOM) of the U.S. Treasury Bonds. The rate shall be used with the same maturity period as that used for calculating the risk premium, which is available on the internet page of the U.S. Federal Reserve, at the internet address: http://www.federalreserve.gov/datadownload/Build.aspx?rel=H15.
Risk premium (PR) shall use the variable called "Implied Premium (FCFE)". For Country risk (RP), the value published for Costa Rica is considered, from the data called Risk Premiums for the other markets, where the country risk is called Country Risk premium). The values for this variable and the Unleveraged beta shall be obtained from the information published by Dr. Aswath Damodaran, at the internet address http://www.stern.nyu.edu/~adamodar or, alternatively, from the "Ibbotson® Cost of Capital Yearbook". If any of these sources were to become unavailable, another public and reliable source shall be used.
3. The source of information chosen for the variables described in points 1 and 2 shall be used consistently, in terms of the length of the historical series (5 years), the frequency of the observations (one observation per year, corresponding to the published average), and the calculation of the average (arithmetic average of the 5 observations corresponding to the 5 most recent years for which information is available). In the event that, for one or more of the cited variables, it is not possible for ARESEP to have a recent historical series that completes 5 annual observations, the historical series of less than 5 years but that is the same for all variables shall be used.
4. Debt-to-equity ratio (D/Kp): It is estimated with the formula D/Kp = Y/(1-Y), where Y is the financial leverage. For this calculation, a weighted average by installed capacity of the most recent information referring to the financing level for each type of private electric generation plant available at the Autoridad Reguladora shall be used.
5. Income tax rate: It is the tax rate for for-profit legal entities, corresponding to the last income tax bracket—the highest marginal rate—established and updated by decree by the Ministerio de Hacienda.
6. Other variables a) Interest rate (i) The monthly average of the values of the last sixty months of the rate published by the Banco Central de Costa Rica for loans to the industrial sector in dollars from private banks shall be used.
- b)Economic life of the project (v) For the purposes of this model, the economic life of the project is 20 years, a period equal to that of the contract considered in the model for defining the tariff. It is being assumed that this economic life is half of the useful life of the project, estimated at 40 years.
- c)Term of the debt (d) and term of the contract The term of the debt is 20 years. This duration has been assigned so that it is equal to the maximum term of the energy purchase-sale contract. The duration of the energy purchase-sale contract used in the model for calculating the tariffs is 20 years, which is the maximum allowed by law. If ICE were to contract the purchase of energy for a period of less than 20 years, the investor would be assuming the risk of not being contracted subsequently. This risk is reduced as progress is made in the processes of opening the national electricity market and creating the regional electricity market.
- d)Age of the plant (e) Given that these are new plants, this variable is assigned a value of zero.
(The subsection "Return on equity contributions (ρ)) above was thus amended by resolution No. RJD-027-2014 of March 20, 2014) Amount of the unit investment (M).
The investment cost represents the total costs necessary to build a generation plant under normal conditions for our country.
(The preceding paragraph was thus amended by resolution No. RJD-027-2014 of March 20, 2014) (*) The calculation of this value shall be performed using data on investment costs of hydroelectric plants with installed capacities equal to or less than 20 MW, from which extreme values shall be excluded, from four sources of information:
- a)The most recent version of the Regional Indicative Generation Expansion Plan (Plan Indicativo Regional de Expansión de la Generación), published by the Consejo de Electrificación de América Central–Grupo de Trabajo de Planificación Indicativa Regional (GTPIR).
- b)Reports made by the Autoridad Reguladora on fixation of sale prices for energy to ICE or other companies from private hydroelectric plants, within the framework of Law No. 7200 and Law No. 8345.
1. Audited information on investment costs of new hydroelectric plants that in the future sell energy to ICE or other companies, within the framework of Law No. 7200 and Law No. 8345.
2. The bidding processes carried out to acquire energy from private generators.
(*)(The preceding paragraph was thus amended by resolution No. RJD-17-2016 of February 8, 2016) (Thus added by resolution RJD-013 of February 29, 2012) (*) All available data on investment costs of hydroelectric plants with installed capacities equal to or less than 20 MW shall be extracted from the mentioned sources of information. Subsequently, this data shall be subjected to the following treatment:
- a)Calculate the investment per installed kW for each plant (US$/KW).
- b)Obtain the simple average of the investment cost per installed kW of the plants used for the calculation.
(*) (Thus amended by resolution RE-0014-JD-2024 of April 4, 2024 Table 2.1 of Annex 2 (Anexo 2) of this report presents the current calculation of the average investment cost, based on the previously established criteria. This value shall be updated in each tariff fixation.
(*) Update of the investment amount in fixed assets The update of the investment amount in fixed assets that make up the rate base shall be performed using a representative price index, in the event that the data used are more than one year old. The selection of the index shall consider the following aspects: that it comes from a publicly accessible source, specialized in the generation of technical information, and with the most recent information. The update of the investment amount in fixed assets shall be performed annually and the same index shall be applied consistently. In the event that it becomes necessary in the future to modify the index to be used, the technical reason supporting said decision shall be justified based on science, technique, and logic, as established by the Ley General de la Administración Pública.
(*)(The preceding paragraph was thus added by resolution No. RJD-027-2014 of March 20, 2014) Definition of the tariff band (*) The sale price of energy by private generators to the ICE, within the framework of Chapter I of Law No. 7200, shall be regulated by means of a tariff band.
The main considerations taken into account when establishing a tariff band scheme are the following:
1. The standard deviation corresponding to all the data used to estimate the average investment cost is calculated.
2. The upper limit is established using the average investment cost plus one standard deviation.
3. The lower limit of the band consists of using, for the tariff calculation, the value of the average investment cost minus the value of three standard deviations, provided that the investment value is greater than 0. In the event that the calculation with the three proposed standard deviations indicates a lower limit of zero or less than zero, the immediately preceding positive natural number of standard deviations shall be taken such that the lower limit is greater than zero. That is, if with three standard deviations the investment amount is zero, two standard deviations are used; if with two standard deviations the investment amount is zero, one standard deviation is used; and if with one standard deviation the investment amount is zero, the average is used.
(*)(The preceding paragraph was thus amended by resolution No. RJD-17-2016 of February 8, 2016) During the design process of the methodology proposed in this report, it was observed that there is no standard model for hydroelectric generation with installed capacities equal to or less than 20 MW in Costa Rica. Although equipment costs are well established and are standard, the diversity of geological, hydrological, and topographical conditions means that infrastructure costs show substantial differences. Consequently, the option of establishing a price band based on efficiency levels is made difficult. It was therefore decided to define this band using a statistical criterion.
In particular, it is proposed to define the price band based on the determination of a maximum and a minimum investment cost value. To do this, first, the standard deviation corresponding to all the data used to estimate the average investment cost is calculated. The upper limit of the price band is defined as the average investment cost plus the standard deviation. And the lower limit, as the average investment cost minus the standard deviation.
Table 2.2 of Anexo 2 presents the calculation of the investment cost range on which the definition of the tariff band is based, using the data available at the time this report was drafted. This range shall be updated in each tariff setting.
Time-of-use and seasonal structure The tariff shall have a monomic structure, such that payment shall only be made for energy. The time-of-use and seasonal structure is a relative differentiation of the price of energy, by hours of the week and by hydrological seasons. It seeks to represent the cyclical changes in the value of energy in the electrical system, due to the seasonal influence of hydrology and the weekly behavior of the load curve.
The seasonal time-of-use tariff structure to be used is the following:
. The high season period (high period) covers the five months from January to May, and the rest of the year is the low season or period.
. The time periods are divided into three: peak, valley, and night. The peak period consists of the five hours, separated into two blocks, of highest demand on the five working days of the week, from 10:30 a.m. to 1:00 p.m. and from 5:30 p.m. to 8:00 p.m. The night period covers from 8:00 p.m. to 6:00 a.m. the following day, all seven days of the week. The valley period covers the remaining hours, including from 6:00 a.m. to 8:00 p.m. on weekends, where there is no peak period.
The dimensionless parameters that shall be applied to the defined tariff level are the following:
These parameters shall be updated in each tariff setting, based on the reports of the Instituto Costarricense de Electricidad (ICE) in which a seasonal time-of-use structure model is defined for the purchase prices paid to electric generators.
Currency in which the tariff shall be expressed The tariffs resulting from the detailed methodology shall be expressed and invoiced in United States of America dollars (US$ or $).
The conditions under which payments are made shall be defined in accordance with what the parties establish contractually, and based on the applicable regulations.
Adjustment of the tariff band values The values of the tariff band shall be reviewed at least once a year, in accordance with what is established by Law No. 7593.
At no time may the prices paid for the purchase of electric energy be greater than the upper limit of the current tariff band, nor less than the lower limit of that band.
(The preceding paragraph was thus added by resolution RJD-161-2011 of October 26, 2011) Other considerations To improve this methodology in the future, it is established that new private hydroelectric generators to which the tariffs established through this tariff methodology are applied are obligated to annually submit to the ARESEP the audited financial information (including operating and maintenance expenses, administrative expenses, and individual investment expenses) as well as its due justification. In this way, the ARESEP will be able to have better information for adjusting the model to real operating conditions. For these purposes, the audited financial statements of the company must be submitted at least annually.
TRANSITORY PROVISION. Once the changes to the tariff methodology of the "Metodología tarifaria de referencia para plantas de generación privada hidroeléctricas nuevas", issued through resolution RJD-152-2011 and its modifications RJD-161-2011, RJD-013-2012, RJD-027-2014, RJD-017-2016, and RE-0205-JD-2021, come into force, the Intendencia de Energía must initiate ex officio, within a maximum period of 60 calendar days, within that period the opening of the tariff file must be requested, the initial report must be issued, and the DGAU must be requested to convene the respective public hearing.
(The preceding transitory provision was thus added by resolution RE-0014-JD-2024 of April 4, 2024) II.- To provide as a response to the opponents what is indicated in Considerando V of this resolution and to thank them for their valuable participation in this process.
DISSENTING VOTE OF THE DIRECTOR EMILIO ARIAS RODRÍGUEZ File OT-029-2011 Metodología Tarifaria de referencia para plantas de generación privada hidroeléctricas nuevas, official communication 417 RG -2011 of August 5, 2011.
Based on my constitutional oath to uphold and respect the Constitución Política and the laws of the Republic, I dissent from the majority vote insofar as the proposal called "Metodología Tarifaria de referencia para plantas de generación privada hidroeléctricas nuevas" must, in my opinion, be added to, clarified, or corrected, in accordance with the observations I note below:
First: Within the powers of the Autoridad Reguladora de los Servicios Públicos (ARESEP) regarding concessions and tariffs with respect to private generators, it is not legally acceptable to assume that the Instituto Costarricense de Electricidad conducts auctions or tenders to decide from which company it purchases energy. Furthermore, the tariff-setting power is a sovereign power that cannot be delegated and is assigned by Law to the Autoridad Reguladora de los Servicios Públicos, so the justification for the proposed establishment of the Tariff Band system, presented by the Centro de Desarrollo de la Regulación (CDR), lacks legal support. The report indicates that there is a monopsony power held by the ICE in the energy purchase market authorized by Chapter I of Law No. 7200, which is true; (see page 21 of 113-CDR-2011), the report indicates that the ceiling tariffs included in the original proposal submitted to a public hearing have the drawback that no lower limit is established, so the ICE would make use of that power, and therefore to solve that problem, the bands are proposed. However, in the opinion of the undersigned director, the proposal of tariff bands does not solve the identified problem either. Under current conditions, where a Ley General de Electricidad has not yet been approved and there is no competitive market, a specific tariff subject to review must be established for private generators that sell energy to the ICE under Chapter I of Law No. 7200.
Second: The sale prices of energy to the ICE authorized by Law No. 7200 must comply with the provisions of Articles 3 and 31 of Law No. 7593, in concordance with Article 17 of Law No. 8723, Ley Marco de Concesión para el aprovechamiento de las fuerzas hidráulicas para la generación hidroeléctrica, which state:
"Article 3.-Definitions For the purposes of this law, the following concepts are defined:
- a)Public Service. That which, due to its importance for the sustainable development of the country, is classified as such by the Asamblea Legislativa, in order to subject it to the regulations of this law.
- b)Service at cost. Principle that determines the method of setting the tariffs and prices of public services, so that only the costs necessary to provide the service are considered, allowing a competitive return and guaranteeing the adequate development of the activity, in accordance with what is established in Article 31.
- c)Public service provider. Public or private entity that provides public services by concession, permit, or law. (Thus amended by Article 41, subsection a) of Law No. 8660 of 8/8/2008, published in Alcance 31, to La Gaceta 156 of 8/13/2008).
- d)Environmental impact assessment. Scientific-technical study, carried out by professionals in the field, that allows identifying and predicting the effects that a specific project will produce on the environment, quantifying and weighing them, to propose a recommendation." "Article 31.-Setting of tariffs and prices. To set the tariffs and prices of public services, the Autoridad Reguladora shall take into account the model production structures for each public service, according to the development of knowledge, technology, the possibilities of the service, the activity in question, and the size of the providing companies. In this last case, efforts shall be made to promote small and medium-sized enterprises. If there is a proven impossibility to apply this procedure, the particular situation of each company shall be considered.
The criteria of social equity, environmental sustainability, energy conservation, and economic efficiency defined in the Plan nacional de desarrollo shall be central elements for setting the tariffs and prices of public services. Settings that jeopardize the financial equilibrium of the public service providing entities shall not be permitted.
The Autoridad Reguladora must apply models for annual tariff adjustment, based on the modification of variables external to the administration of the service providers, such as inflation, exchange rates, interest rates, hydrocarbon prices, wage adjustments made by the Poder Ejecutivo, and any other variable that the Autoridad Reguladora deems pertinent.
Likewise, when setting public service tariffs, the following aspects and criteria must be considered, when applicable:
- a)Guarantee financial equilibrium.
- b)The recognition of the cost schemes of the different contracting mechanisms for project financing, their special forms of payment, and their effective costs; among them, but not limited to, type B schemes: (build and operate, or build, operate, and transfer, BOO), as well as operating leases and/or financial leases and any others that are regulated.
- c)The protection of water resources, environmental costs, and services.
(Thus amended, the entire article, by Article 41, subsection g) of Law No. 8660 of 8/8/2008, published in Alcance 31, to La Gaceta 156 of 8/13/2008)." "Article 17.-Electricity tariffs. The regulation regarding the public service and the sale tariffs for electricity to the ICE, which are approved for companies that have concessions for the exploitation of hydraulic forces for hydroelectric generation under this Law, shall be established in accordance with the principles, criteria, and rules of Law No. 7593, in particular the precepts of service at cost and the setting of prices and tariffs contained in Articles 3 and 31, respectively. The avoided cost criterion may not be used, under any circumstances, in the setting of prices and tariffs for the sale of energy to the ICE or other distributors authorized by law. This rule prevails over any other that precedes it in this matter. Chapter II of Law No. 7200 is exempted from the scope of this article." From the reading and analysis of these articles, it is deduced that the so-called environmental factor is an imperative; there is an obligation to include it within the proposed methodology. This factor is one of the central elements for setting the tariffs and prices of public services. The methodology refers to the inclusion of the factor (fa) with a value of zero because it was not calculated. In this regard, I point out that the consideration of this methodological proposal must be postponed until it is complete; this factor cannot be relegated and left unconsidered indefinitely, until a new methodology is approved that defines it.
Specifically, within point 5.2.12 called "Promotion of private investment in hydroelectric generation," in point b), it is textually indicated: "opening the possibility of including an environmental component in the tariff, whose design will be submitted to a public hearing shortly." From this, it follows that we are indeed facing a possibility that remains undefined in time, especially considering the historical time that the processing of a methodology at the institutional level entails. Additionally, it is important to question the economic and human cost this represents.
On the other hand, on page 22 of the document delivered via official communication 122-CDR-2011 / 65718, which is the one submitted for consideration by the Junta Directiva, it is indicated that "the ARESEP agrees with establishing an environmental cost factor." Again, in the opinion of this director, it is not that it agrees; it is that Article 31 of Law No. 7593 obligates it to include it within the methodology.
Third: At the time of voting on the "Metodología Tarifaria de referencia para plantas de generación privada hidroeléctricas nuevas," official communication 417 RG -2011 of August 5, 2011, this director has not received the information requested in session 46-2011 of July 20, 2011, a session where the proposals of the Dirección de Servicios de Energía and the Centro de Desarrollo de la Regulación (CDR) were presented, which is of vital importance for making a decision. However, it should be noted that informally, during the course of this session, I viewed the official communication DEN 2011/ 17963, of July 22, 2011, through which the Dirección de Servicios de Energía delivers to this board the information requested by this director; however, it was not delivered to me in time, which once again demonstrates the concealment of information from this director, preventing me from making a decision with complete and accurate information.
Fourth: Currently, the Junta Directiva of the ARESEP, due to decisions not attributable to this director or to directora Echandi Gurdián, lacks technical and legal advisory services independent of the rest of the administration's bodies, a situation that began on October 9, 2010. This limits the verification by this collegiate body of the conformity of the Administration's proposal with the respective regulations and technical rules, which I support in accordance with the principle of impartiality of public officials and the fundamental right of the administered to the impartiality of the Administration. See rulings 6472-2006, 2883-96, and 3932-95 of the Sala Constitucional. It is clear that, in their capacity as public officials, legal advisors are equally called upon to respect the principle of impartiality and transparency that emanates from Article two of the Constitution, in concordance with Article 230 and following of the Ley General de Administración Pública.
San José, August 17, 2011.