For the matters indicated in this article, the Autoridad Reguladora will call a hearing, in which persons having a legitimate interest may participate to express themselves. For that purpose, the Autoridad Reguladora will order publication in the Diario Oficial La Gaceta and in two newspapers of national circulation, the matters listed below:
a. Requests for the ordinary setting of tariffs and prices of public services.
b. Requests for authorization of electric power generation in accordance with Ley Nº 7200, of the 28th of September, 1990, reformed by Ley Nº 7508, of the 9th of May, 1995.
c. The formulation and revision of the norms indicated in article 25.
d. The formulation or revision of price and tariff 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 provide the exact address or fax number for notification purposes by the ARESEP. In said hearing, the interested party must set forth the factual and legal grounds they deem 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 circulated 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 purposes of standing based on collective interest, legal entities organized under an associative form whose purpose is the defense of consumer or user rights may register with the Regulatory Authority to act in defense thereof, as an opposing party, provided the tariff petition proceeding is related to their purpose. Likewise, community development associations or other social organizations whose purpose is the defense of the rights and legitimate interests of their members shall have standing.
Persons interested in filing an opposition with technical studies who lack the necessary economic resources for such purposes may request from the ARESEP the assignment of a technical expert or professional duly accredited before this entity to carry out such work. This shall be covered by the budget of the Regulatory Authority. Likewise, the Public Services Regulatory Authority is empowered to establish regional offices in other areas of the country, in accordance with its capabilities 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 that guarantees citizen participation, and for the issuance thereof, it must observe the cost-of-service principle, the rules of science and technique, and the general provisions issued in the National Development Plan regarding the electricity sector.
The legal framework cited above provides the basis empowering ARESEP to establish regulatory methodologies that reflect the cost structure, financing structure, required returns in accordance with the cost-of-service principle, and 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.
The National Electricity Sector is at a stage where it urgently requires the incorporation of the greatest possible amount of energy from electricity generation plants that use renewable energy sources and have costs lower than those of thermal plants. The latter currently generate a substantial amount of the available electricity, despite their higher economic and environmental costs.
In this regard, and in accordance with the provisions of the National Development Plan 2011-2014 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.
Technical studies are currently available demonstrating the existence of sufficient unused potential from different energy sources (wind, biomass, hydroelectric, and geothermal). To take advantage of this potential in a timely manner, it is necessary to have adequate public policies, and this includes the regulatory policies that the Public Services Regulatory Authority (ARESEP) is responsible for designing and executing.
Among the most significant state efforts to incentivize generation with 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 cost-of-service principle and the other principles and criteria established by Law No. 7593.
Law 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 Costa Rican Electricity Institute (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 power of all the power plants that make up the national electricity system.
According to recent ICE estimates, this public company can currently contract up to a maximum of 183 MW from private electricity generators, within the framework of Law 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 the transactions to be carried out within the framework of Law No. 7200.
One of the main obstacles to defining the aforementioned tariff methodologies has been the difficulty in accessing adequate information to estimate the costs associated with private electricity generation, under the conditions established by Law No. 7200. Recently, this limitation has been overcome to a considerable extent, with the analyses and data provided by the 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 Law No. 7200. Although the equipment used in these activities is highly standardized, the great diversity of geological, topographical, and hydrological conditions at the sites where these plants are located causes considerable dispersion in production costs. Taking this situation into account, it has been decided to establish a tariff band within which the ICE may receive offers from a wide range of private generators and choose those most attractive to it. Within this scheme, the ICE is placed in a position to purchase 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, considering that the regulation of private electricity generation by ARESEP responds to the objective of reducing dependence on thermal generation and thereby decreasing 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 for estimating the upper and lower values of that band, expressed in dollars per kWh. These limits are defined from the estimation of the average and the standard deviation of the investment costs corresponding to 23 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 this data, 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 one standard deviation.
It is expected that the present application of the "Reference tariff methodology for new private hydroelectric generation plants" approved by the Board of Directors according to resolution RJD-152-2011 of fourteen hours and fifteen minutes on August tenth, two thousand eleven, and published in the Official Gazette La Gaceta No. 168 of September 1, 2011, contributes to the benefit of energy purchasers (companies and users) and the national economy as a whole.
The tariff resulting from this model would be the one used for the purchase of electric energy by the ICE from all those new private generators that, under Law No. 7200, sign a contract with the ICE and whose energy source is hydraulic.
1. CURRENT METHODOLOGICAL FRAMEWORK This section includes a summary of the methodology approved by the Regulatory Authority through resolution RJD-152-2011 of August 10, 2011, and published in the Official Gazette La Gaceta No. 168 of September 1, 2011, which constitutes the methodology to be applied in this case, as ordered by the Board of Directors.
1.1. Reference Tariff Level for new private hydraulic generators The model shall set the tariff level for new private generators under Law No. 7200 and allow for incentivizing new investments in the private electricity sector that use water as a primary energy source and whose capacity is less than or equal to 20 MW, in such a way as to complement current electric energy generation, substituting thermal energy production and its high costs.
1.1.1. General Aspects The model presented aims to determine the reference tariffs for new hydroelectric private generation plants for sale to the ICE.
1.1.2. 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 chapter one of Law No. 7200, to replace the greatest possible proportion of energy generated with thermal sources with energy generated from renewable sources. ICE estimates indicate that it can currently contract, from private electricity generators that produce with renewable sources, up to a maximum of 183 MW.
1.2. 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 the 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 for the level of risk associated with the activity of electricity generation.
The tariffs per kWh estimated through the proposed model include operation and maintenance costs, financial costs, and the investor's net return.
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. Thus, the following equation is obtained:
CE + CFC + fa = 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 investment (RI) and the return (r). Thus, CFC = RI + r RI = Recovery of investment (depreciation) r = Return on investment fa = Total or unit environmental factor (factor ambiental) IR = Required income, which is the result of multiplying the tariff "p" by the energy sales "E", that is, IR = p x E p = Sales tariff E = Sales (quantity of energy) Solving for p:
p= CE + CFC + fa E From the above, it follows that, for the purposes of this model, the tariff depends on electricity sales expectations, operating costs (costos de explotación), capital recovery (depreciation), 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 (call for and holding of a public hearing). Currently, this methodology and its value have not been defined.
1.3. Sales expectations (E) The plant's production also depends on the availability of installed capacity for generation, which in turn depends on the physical characteristics of the development, 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 an installed capacity utilization factor (Plant Factor). This is a commonly used factor that can be associated with each type of primary source; a value can be established for this parameter applicable to each type of source, making it possible to differentiate the sales tariff according to the primary source.
In summary, to estimate the amount of energy to be used to determine the applicable tariff, the following equation is considered:
E = C x 8760 x fp (Equation 2) Where:
E = Annual sales (quantity of energy) C = Installed capacity of the plant in MWh 8760= Number of hours in a year fp = Plant factor applicable according to the source Although there is an economy of scale in electricity generation plants, especially regarding installation costs and operating costs (costos de explotación), it is possible to simplify the model and perform the analysis for a plant of unitary size (unitary installed capacity), whereby the previous formula is reduced to:
E = 8,760 x fp (Equation 3) The plant factor (fp) of a power plant is defined as the quotient between the real energy generated by the power plant during a period (generally annually) and the energy generated if it had worked at full load during that same period, according to the nominal plant values identified for the different equipment.
The plant factor value used in this model shall be obtained from data from Costa Rican private hydroelectric plants with installed capacities of less than 20 MW, for which ARESEP possesses such information. Only data from plants in the aforementioned group that generated energy during 10 or more months of the respective year shall be used. This value shall be updated in each tariff setting. For this purpose, data from the last five-year period for which ARESEP has information shall be used. The plant factor value shall be calculated as follows: for each of the years of the five-year period, an arithmetic average of the values of each individual plant shall be estimated; then, the arithmetic average of the five resulting values shall be obtained, and the result is the plant factor datum to be used in the tariff setting.
1.4. Operating Costs (CE) (Costos de explotación) The operating cost (costo de explotación) includes the costs necessary to maintain and operate a plant under normal conditions for our country. It does not include depreciation expenses, financial expenses, or taxes associated with utilities or profits.
The operating costs (costos de explotación) include both variable operating costs (those expenses that occur exclusively when the production process takes place, such as taxes associated with production, spare parts, and other consumable materials during the production process) and fixed costs (those unavoidable expenses independent of whether the plant operates or not, such as insurance policies, permits, permanent personnel, technical advisory services, administrative expenses, etc.). It is important to note that they correspond to expenses involving cash disbursements and, therefore, depreciation must not be included.
The calculation method shall be as follows:
- a)Data on operating costs (costos de explotación) from a sample of hydroelectric plants operating in the country, of different installed capacities, are taken.
- b)An exponential regression exercise is carried out to estimate the curve that best approximates the function relating installed capacity and operating cost (costo de explotación).
- c)The value of the mentioned function corresponding to a 10 MW plant is used, which is the midpoint of the range permitted by Chapter 1 of Law No. 7200.
- d)In each tariff setting, new operating cost (costo de explotación) data that have been obtained, corresponding to hydroelectric plants operating in the country, are incorporated.
The calculation of the operating cost (costo de explotación) value shall be updated in each tariff setting.
1.5. Fixed Capital Cost (CFC) (Costo Fijo por Capital) Through the component called "Fixed Capital Cost" (CFC), investors are guaranteed returns comparable to those they could obtain in other investments with a similar level of risk, to make the alternative of participating in the plant's development attractive.
The CFC depends on the investment amount, the leverage level used (debt/equity ratio), 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 (Equation 4) CFC = Fixed Capital Cost (Costo fijo por capital), which is the sum of the recovery of investment (RI) and the return (r).
RI = Recovery of investment (depreciation) r = Return on investment Where:
RI + r = M x FC (Equation 5) Where:
r = Return on investment M = Total amount of the unit investment FC = Factor reflecting the investment conditions RI = Recovery of investment (depreciation) The FC factor depends on the conditions under which the financing is established and the age of the plant.
The value of each variable that determines the CFC shall be updated in each tariff setting.
The FC factor is calculated through an equation that allows determining the amount of the uniform installment, applicable throughout the economic life, that the plant owner requires to recover their investment and obtain a reasonable return. The equation is as follows:
Where:
ψ = Leverage (debt ratio) (%) ρ = Return 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.
1.5.1. Leverage (ψ) The financial leverage value is used to estimate the relationship between debt and equity, which is part of the leveraged beta formula defined later.
An average of the financing information for electrical projects available at the Regulatory Authority shall be used for the calculation. This value shall be updated in each tariff setting.
1.5.2. Return on equity contributions (ρ) The calculation of the return on contributions is determined using the method called the Capital Asset Pricing Model, commonly known as CAPM.
The CAPM method is based on the consideration that changes in an asset's return are related to the risk associated with it and can be separated into two main 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 on equity capital contributions.
PR: Risk premium (Prima por riesgo). It is defined as the difference between the risk-free rate and the market rate of return. The risk-free rate (Kl) corresponds to an investment alternative that has no risk for the investor. The market rate of return corresponds to the respective activity sector.
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 of the investment. It is the covariance of the return on 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 βd = Unleveraged beta D/Kp = Relationship between debt and equity (estimated through financial leverage).
T = Income tax rate The parameters required to apply the CAPM method are as follows: return on equity capital contributions, unleveraged beta, risk premium (prima por riesgo), country risk (riesgo país), relationship between debt and equity, and income tax rate. Each of them is defined below.
a. Risk premium (PR) (Prima por riesgo): The risk premium (prima por riesgo) shall be obtained from the information published by Dr. Aswath Damodaran, professor at New York University (USA), at the following internet address: http://www.stern.nyu.edu/~adamodar/pc/implprem/ERPbymonth.xls. The arithmetic average of the available values within the last twelve months for which information is available, at the time the tariff setting is calculated, shall be used. If this source ceases to be available, another public and reliable source shall be used.
b. Unleveraged beta: The value of the unleveraged beta (βd) shall be obtained from the information published by Dr. Aswath Damodaran, professor at New York University (USA), at the internet address cited in the previous point. The arithmetic average of the available values within the last twelve months for which information is available, at the time the tariff setting is calculated, shall be used. If this source ceases to be available, another public and reliable source shall be used.
c. Country risk (Riesgo país): The country risk (riesgo país) shall also be obtained from the information published by Dr. Aswath Damodaran, at the internet address cited in the previous point. The arithmetic average of the available values within the last twelve months for which information is available, at the time the tariff setting is calculated, shall be used. If this source ceases to be available, another public and reliable source shall be used.
d. Interest rate (i): The monthly average of the values from the last sixty months of the rate published by the Central Bank of Costa Rica for loans to the industrial sector in dollars, from private banks, shall be used.
e. 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 to define the tariff. It is assumed that this economic life is half of the project's useful life, estimated at 40 years.
f. Term of the debt (d) and term of the contract: The term of the debt is 20 years. This duration has been assigned to it so that it equals the maximum term of the energy purchase-sale contract.
The duration of the energy purchase-sale contract used in the model for the tariff calculation is 20 years, which is the maximum permitted by law. If the ICE contracted the purchase of energy for a period of less than 20 years, the investor would be assuming the risk of not being contracted later. This risk is reduced as progress is made in the opening processes of the national electricity market and the creation of the regional electricity market.
g. Income tax rate (t): The income tax rate is defined based on current legislation.
h. Age of the plant (e): Given that these are new plants, this variable is assigned the value of zero.
1.6. 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 calculation of this value shall be made from data on investment costs of hydroelectric plants with installed capacities equal to or less than 20 MW, from three sources of information:
a. From the document titled "Regional Indicative Generation Expansion Plan. Period 2011-2025. December 2010", published by the Central American Electrification Council-Regional Indicative Planning Working Group (GTPIR), the table "Hydro candidates in OPTGEN. Capitalized investment costs updated to January 2010".
b. The reports made by the Regulatory Authority on the setting of energy sales prices to the ICE from private hydroelectric plants, within the framework of Law No. 7200.
c. Audited information on investment costs of new hydroelectric plants that in the future sell energy to the ICE, within the framework of Law No. 7200.
From the two mentioned sources of information, all available data on investment costs of hydroelectric plants with installed capacities equal to or less than 20 MW shall be extracted. Subsequently, these data shall be subjected to the following treatment:
a. Five groups of plants shall be formed, each corresponding to a 4 MW range of installed capacity; that is, the group from zero to 4 MW, from 4.1 MW to 8 MW, from 8.1 MW to 12 MW, from 12.1 MW to 16 MW, and from 16.1 MW to 20 MW.
b. The average investment cost of the plants included in each of the aforementioned groups is obtained.
c. The average of the average values of each of the plant groups is obtained.
d. To the value cited above, the amount corresponding to the payment of interest during the grace period is added. This is estimated as equivalent to two years of interest on the calculated average investment value.
1.7. Definition of the tariff band The energy sales price by private generators to the ICE shall be regulated, within the framework of chapter I of Law No. 7200, through a tariff band.
The main considerations taken into account when establishing a tariff band scheme are as follows:
. The standard deviation corresponding to all the data used to estimate the average investment cost is calculated.
. The upper limit is established as the average production cost plus the standard deviation. This opens the option for some of the offerors to be chosen by the ICE to have costs different from the average. This option is justified, considering that the main objective of this methodology is to stimulate investments in private hydroelectric generation with competitive costs compared to thermal generation.
. By determining a tariff band, the risks of potential collusion strategies by the offerors, which could be contrary to the objective of contracting energy with prices reflecting reasonable levels of efficiency, are reduced.
. By setting a lower limit, the ICE's margin of action for establishing the price to contract with hydroelectric energy offerors is bounded. This restriction is convenient, taking into consideration the strong market power that the ICE has under the conditions associated with the tariff being proposed.
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 results in substantial differences in infrastructure costs. Consequently, the option of establishing a price band based on efficiency levels is made difficult. The decision was therefore made to define this band using statistical criteria.
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, the standard deviation corresponding to all the data used to estimate the average investment cost is first 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.
The values of the tariff band will be reviewed at least once a year, in accordance with the provisions of Ley Nº 7593.
1.8. Time-of-use seasonal structure The tariff will have a single-rate structure (estructura monómica), so that payment will only be made for energy. The time-of-use seasonal structure is a relative differentiation of the energy price, 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 as follows:
. The high season period (período alto) covers the five months from January to May, and the rest of the year is the low season or period.
. The time-of-use periods are divided into three: peak (punta), off-peak (valle), and night (noche). The peak is constituted by 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, seven days a week. The off-peak covers the remaining hours, including from 6:00 a.m. to 8:00 p.m. on weekends, where there is no peak.
The dimensionless parameters that will be applied to the defined tariff level are the following:
These parameters will be updated in each tariff setting, based on reports from the Instituto Costarricense de Electricidad (ICE) in which a model of a seasonal time-of-use structure for purchase prices from electric generators is defined.
1.9 Currency in which the tariff will be expressed The tariffs resulting from the detailed methodology will be expressed and invoiced in United States dollars (US$ or $).
The conditions under which payments are made will be defined in accordance with what the parties establish contractually, and based on applicable regulations.
1.10 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 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, ARESEP will be able to have better information for adjusting the model to real operating conditions. For these purposes, the company's audited financial statements must be submitted, at least annually.
2. FINAL APPLICATION OF THE MODEL The application of the "Reference tariff methodology for new private hydroelectric generation plants" is detailed below, according to resolution RJD-152-2011 published in La Gaceta Nº 168 of September 1, 2011.
Before analyzing the details of this tariff setting and the respective calculations, it is necessary to indicate that these differ from those calculated and the tariff originally submitted to the public hearing, precisely due to the changes that the Board of Directors approved in the tariff methodology.
The tariff to be calculated is guided by the goal of establishing a tariff band that allows incentivizing new investments in electric energy generation through the use of water as a productive input, and substituting thermal generation due to its high costs and pollution levels, and on the other hand, decreasing the possibility of collusion among interested economic agents, as well as providing a framework of action for ICE as a buyer to assign a price for energy, following the principles of allocative and productive efficiency.
The proposed tariff (tariff range) depends on electricity sales expectations, operating costs (costos de explotación), capital recovery (depreciation), profitability, and the environmental factor. In this way, the calculation of the tariffs (upper and lower limit) is obtained as follows:
Where:
P = Sale tariff CE = Operating costs CFC = Fixed capital cost (costo fijo por capital), which is the investment (M) multiplied by the factor that reflects the financing conditions (FC).
Thus, CFC = M * FC fa = Total or unit environmental factor E = Annual sales (quantity of energy) 2.1. Sales expectations (E) To estimate the amount of energy to be used to determine the applicable tariffs, the following equation is considered:
Where:
E = Annual sales (quantity of energy) 8760 = Hours in a year (24*365) Fp = Plant factor (factor de planta) 2.2. Plant factor The value of the plant factor used by this model is obtained using information from hydroelectric plants under the legal framework of Ley Nº 7200 that the Regulatory Authority possesses, that is, Costa Rican private hydroelectric plants with installed capacities less than 20 MW. Information from the last five available years and data from the plants in the group that generated energy for 10 or more months of the respective year were used.
To obtain the value of the plant factor, it was calculated as follows:
a. For the last five years with available information, that is, for 2007, 2008, 2009, 2010, and 2011, the arithmetic mean weighted by installed capacity of the values for each individual plant with 10 or more months of production in each of those years was estimated.
b. Once the weighted average by capacity for each particular plant is obtained, the annual weighted average by installed capacity is obtained for each of the years mentioned above, yielding five data points, one for each year. In this case, the plant factor for 2007 is 0.60, for 2008 it is 0.63, for 2009 it is 0.60, for 2010 it is 0.62, and for 2011 it is 0.55.
c. The weighted average by annual capacity of these five values is the plant factor to be used to obtain the tariff. With the above data, the average is 0.60.
Annex No. 1 of the technical report of the DEN with official letter 237-DEN-2012 shows the information required to obtain the plant factor, that is, the amount of energy produced per plant and the installed capacity, the weighting, and the result for each of the private generation hydroelectric plants under the framework of Ley Nº 7200. The following table shows a summary of the results.
2.3. Operating costs Operating costs are considered to be the costs necessary to maintain and operate a plant under normal conditions for our country, excluding depreciation expenses, financial expenses, and taxes associated with profits or earnings.
The operating cost was calculated as follows:
a. The sample used to obtain the operating costs is derived from the final Cost Report of the Generation System for 2010, specifically the operation and maintenance costs of ICE's hydroelectric plants, and the tariff settings for private generators carried out by the Regulatory Authority in recent years with different installed capacities; such as the Central Hidroeléctrica Sigifredo Solís (Et-161-2010, folios 620 and 627), El Ángel (ET-169-2010, folios 857-858 and worksheets) and Vara Blanca (ET-185-2010, folios 327 and 328).
The operation and maintenance costs of Central Hidroeléctrica Sigifredo Solís S. A. are calculated with data from file ET-161-2010 and the result is $131.01 per kW. This amount is obtained by subtracting from costs and expenses (folio 620), the depreciation expenses and financial expenses (folio 627); the resulting amount is dollarized (using the average exchange rate for 2011) to be comparable to the other data in the sample and is divided by the plant's capacity, which is 26 MW (folio 625). For the case of the hydroelectric plant El Ángel S. A., according to file ET-169-2010 the amount obtained for operating costs is $104.19 per kW, which is the result of subtracting financial expenses, depreciation, and taxes from costs and expenses (folio 858) and dividing this by the plant's installed capacity, which is 3.85 MW (folio 880). The tariff study of Central Hidroeléctrica Vara Blanca S. A., which was processed in file ET-185-2010, shows its operating costs are $111.76 per kW (operating costs are obtained from folios 327-328 and installed capacity from folio 3).
b. The sample was updated with the Industrial Producer Price Index (IPPI), as this is the index that best suits the type of cost being addressed. As the ICE operation and maintenance cost sample is as of December 2010, these data are updated with the variation between the index for January 2012 and that for December 2010, which results in a variation of 7.86%. The data from the settings made by ARESEP are 2011 data, which is why the variation is between January 2012 and the annual average for 2011, resulting in a variation of 2.22%.
c. A scatter plot was then generated with the information on plant capacity and operating cost, and an exponential regression exercise was performed (as indicated in RJD-152-2011) to estimate the function that best approximates the relationship. In this case, with the available information, the equation obtained is:
where "y" is the operating costs that depend on "x," which is the installed capacity.
d. For the above function, the value for a plant with a 10 MW capacity was used, which is the mean value of the range permitted by Chapter 1 of Ley Nº 7200. The amount for operating cost is $216.08 per kW, which is the amount used to obtain the tariff.
Annex 2 and 3 of the technical report of the DEN with official letter 237-DEN-2012 contain the sample used to generate the equation and the graph with the trend curve.
It is important to note that the regression that should be used is the one that best fits the curve according to the available information, which in this case is the power regression, which has an R² of 72.56% versus an R² of 59.32% for the exponential regression. With the power regression equation, the operating cost would be $174.85 instead of the $216.08 resulting from using the exponential regression; in the tariff band, this is reflected in a variation of between eleven and six percent more. Despite this, the exponential regression is used as indicated in resolution RJD-152-2011.
2.4. Fixed capital cost (CFC) The fixed capital cost (CFC) reflects the investment amount and the investment conditions, among which are the debt-to-equity ratio, the financing conditions, the age of the plant and its useful life, among others. It was determined using the following equation:
Where:
CFC = Fixed capital cost M = Total unit investment amount FC = Factor that reflects the investment conditions The FC factor is calculated using the equation that allows determining the amount of the uniform quota, applicable throughout the economic life, that the plant owner requires to recover their investment and obtain a reasonable return. The equation is as follows:
Where:
ψ = Leverage (debt ratio) (%) ρ = Return 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) 2.5. Leverage (ψ) Leverage is the percentage of the investment that will be financed with debt. To obtain this datum, the Regulatory Authority calculated the average debt financing of the electrical projects for which it has information.
In this case, the available information is that of the bidders in public tender Nº 2006LI-000043-PROV promoted by the ICE, which are five: Consorcio Hidrotárcoles (P.H. Capulín), Unión Fenosa Internacional (P.H. Torito), GHELLA SPA (P.H. Los Negro II), Consorcio Las Palmas (P.H. Las Palmas), and Consorcio ENEL-Ielesa (P.H. Chucás). In addition, the information contained in the tariff studies on leverage, from the latest settings for private generators, specifically for P.H. El Ángel S. A., with a leverage of 65% according to data found in folio 855 of ET-169-2010, and for P.H. Vara Blanca it is 75% according to folio 327 of ET-185-2010.
The following table shows the specific values for each project:
2.6. Return on equity contributions (ρ) The calculation of the return on equity was determined using the method called the Capital Asset Pricing Model, commonly known as CAPM.
The CAPM determines the cost of average equity for each industry, according to the following formula:
ρ = KL + βa * PR + RP Where:
ρ: Return on equity contributions.
KL: Risk-free rate. This corresponds to an investment alternative that has no risk for the investor.
PR: Risk premium. It is defined as the difference between the risk-free rate and the market rate of return.
RP: Country risk. This is the risk of an economic investment due only to specific and common factors of a certain country.
βa: Levered beta of the investment. This is the covariance of the return of a specific asset and the market return. It is called "levered" when part of the investment is financed with debt.
The levered beta is obtained from the following formula:
βa = βd * (1 + (1-t)* D/Kp) Where:
βa = Levered beta βd = Unlevered beta D/Kp = debt-to-equity ratio (estimated through financial leverage).
t = Income tax rate The value and the source from which each of the parameters calculated to obtain the CAPM are obtained are defined below:
a. Risk-free rate. This is obtained as the arithmetic average of the last 60 months of the rate for 20-year United States of America (USA) Treasury Bonds, which is available on the website of the Federal Reserve of the United States, at the following address: http://www.federalreserve.gov/datadownload/Build.aspx?rel=H15. It is calculated this way because RJD-152-2011 does not define the method, and this is how it is currently used in all the methodologies applied by the Energy Services Directorate that use the CAPM model. If this source becomes unavailable, another public and reliable source will be used.
The risk-free rate for the last 60 months is from February 2007 to January 2012; the average of these values is 4.17. Annex No. 4 of the technical report of the DEN, official letter 237-DEN-2012, details each of the monthly values.
b. Unlevered beta. The arithmetic average of the available values within the last twelve months for which information is available, at the time the tariff setting is calculated, was used. The value of the unlevered beta (βd) is obtained from the information published by Dr. Aswath Damodaran, professor at the University of New York (USA), at the address http://pages.stern.nyu.edu/~adamodar/New_Home_Page/datafile/Betas.html (different from the address indicated in RJD-152-2011 because it does not have the information corresponding to this parameter). If this source becomes unavailable, another public and reliable source will be used.
It is not possible to use an average of the last twelve months because the information source does not have monthly data, as it only calculates an annual beta. For this reason, the unlevered beta is obtained as the arithmetic average of the unlevered betas for the electricity service in the United States of America for the sector, central, east, and west for January 2012. The value obtained is 0.48. See Annex No. 5 in the technical report with official letter 237-DEN-2012.
c. Risk premium (PR). The arithmetic average of the available values within the last twelve months for which information is available, at the time the tariff setting is calculated, was used. The risk premium will be obtained from the information published by Dr. Aswath Damodaran, professor at the University of New York (USA), at the following Internet address: http://www.stern.nyu.edu/~adamodar/pc/implprem/ERPbymonth.xls. If this source becomes unavailable, another public and reliable source will be used.
The last twelve months available at the date of the setting are from February 2011 to January 2012, with which the arithmetic average is 5.87. See Annex No. 6 of official letter 237-DEN-2012, DEN technical report.
The period to be taken into account according to the methodology is twelve months, which is a very short period to calculate the risk premium. Several documents point out the importance of considering a broad time horizon for the risk premium so as not to use rates that contain biases; this is mentioned in official letters 499-DEN-2000, 837-DEN-2000 and is indicated by the primary source of the risk premium information, that is, Aswath Damodaran. Despite this, the indicated reference period (12 months) was used as indicated in resolution RJD-152-2011.
d. Country risk. The arithmetic average of the available values within the last twelve months for which information is available, at the time of calculating the tariff setting, was used. The country risk is obtained from the information published by Dr. Aswath Damodaran, at the internet address: http://pages.stern.nyu.edu/~adamodar/New_Home_Page/datafile/ctryprem.html (different from the address indicated in RJD-152-2011 because it does not have the information corresponding to this parameter). If this source becomes unavailable, another public and reliable source will be used.
As with the levered beta, it is not possible to use an average of the last twelve months because the information source does not have monthly data, as the country risk is only calculated for annual periods.
The country risk value used is 3%, which is specifically for Costa Rica. See Annex No. 7 of the technical report with official letter number 237-DEN-2012.
e. Income tax rate (t). The income tax rate is defined based on current legislation.
The current income tax rate is 30% according to the Ley del Impuesto sobre la Renta, Ley Nº 7092.
With this information, the cost of capital results in being 15.42%, according to the following detail:
2.7. Interest rate (i).
The monthly average of the values from 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, is used. It is obtained from the address: http://www.bccr.fi.cr/flat/bccr_flat.htm.
The arithmetic average of the last sixty months, that is, from February 2007 to January 2012, of the aforementioned interest rate is 9.40%. See Annex No. 8 in official letter 237-DEN-2012.
2.8. Economic life of the project (v).
According to the provisions of RJD-152-2011, for the purposes of the 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.
2.9. Debt term (d) and contract term.
According to the provisions of resolution RJD-152-2011, the debt term is 20 years. This duration has been assigned so that it is equal to the maximum term of the energy purchase-sale contract, which is the maximum permitted by Ley Nº 7200.
2.10. Age of the plant (e).
Given that these are new plants, this variable is assigned the value of zero.
2.11. Unit investment amount (M).
The investment cost represents the total costs necessary to build a generation plant under normal conditions for our country.
The calculation of this value is carried out using data on investment costs of hydroelectric plants with installed capacities equal to or less than 20 MW, from three sources of information:
a. From the document titled "Plan Indicativo Regional de Expansión de la Generación. Período 2011-2025. Diciembre 2010," published by the Consejo de Electrificación de América Central-Grupo de Trabajo de Planificación Indicativa Regional (GTPIR), the table "Candidatos hidro en el OPTGEN. Costos de inversión capitalizados y actualizados a enero 2010," page 39. From this source, 21 projects with a capacity equal to or less than 20 MW and with available investment cost information are obtained. These are projects that include capitalization during the construction period.
b. The reports prepared by the Regulatory Authority on price settings for energy sales to the ICE from private hydroelectric plants, under the framework of Ley Nº 7200. In recent years, the individual settings requested that serve for use in this sample are those for El Ángel (ET-169-2010) and Vara Blanca (ET-185-2011). For these data, the interest during the grace period was calculated so that they are comparable with the GTPIR data.
For El Ángel, a total investment of $10,324,715 was considered, as recorded in folio 882 of ET-169-2010, with a nominal capacity of 3.85 MW. The investment recognized by ARESEP for Vara Blanca was $7,196,016 as recorded in folio 325 of ET-185-2010, and its capacity is 2.65 MW. These amounts do not include the interest for the grace period; for this reason, it was estimated as the equivalent of two years of interest on the calculated average investment value (the interest rate used was obtained by calculating the monthly average of the values from 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).
c. Audited information on investment costs of new hydroelectric plants that in the future sell energy to the ICE, under the framework of Ley Nº 7200. This information is currently unavailable.
From the sample obtained with the available information from the previous sources, the following was carried out:
a. The sample is separated by installed capacity ranges into five groups, each of which corresponds to a 4 MW range of installed capacity; that is, the group from zero to 4 MW, from 4.1 MW to 8 MW, from 8.1 MW to 12 MW, from 12.1 MW to 16 MW, and from 16.1 MW to 20 MW.
b. The investment cost for each of the projects included in the sample is updated with the Industrial Producer Price Index for Electric Power Generation (PCU221110221110)(*), using this index to be consistent with the methodology approved via resolution RJD-163-2011, because the methodology for hydroelectric plants (RJD-152-2011) does not specify the index to use in the update. The GTPIR data are from January 2010, for this reason, the variation of the index from January 2010 to January 2012 is calculated, and the result is negative 11.35%, while the projects from the settings carried out by the Regulatory Authority are 2011 data, which is why they are updated with the variation between the index for January 2012 and the annual average for 2011, resulting in a variation of negative 11.03%.
(*) (Note from Sinalevi: Through the por tanto 3° of resolution RJD 002-2013 of February 18, 2013, the present regulation is partially revoked solely regarding the use of index PCU221110221110 for updating the investment cost and regarding the data used to calculate the standard deviation in order to establish the tariff band) The average investment cost of the plants included in each of the groups is obtained. The first group has three projects that on average have an investment cost of $2,361 per kW, the second group also contains three projects and the average of these projects is $1,979 per kW, the third group has nine projects and the average is $2,495 per kW, the fourth group contains three projects and the average is $2,269 kW, and the fifth group has five projects with an average of $3,239 per kW.
c. Subsequently, the arithmetic average of the average values of each of the plant groups is obtained, which is $2,469 per kW.
d. Due to the characteristics of the sample, interest during the grace period is included beforehand for the projects that did not include it.
Annex No. 9 of the technical report with official letter number 237-DEN-2012 shows the sample and the investment values used.
2.12. Environmental factor Currently, the environmental factor is equal to zero. According to resolution RJD-152-2011, this factor will be included in the tariff once the methodology corresponding to the environmental component is approved, as well as its respective amount. The approval of this methodology must comply with the procedures established in the current legal framework (convening and holding a public hearing).
2.13. Definition of the band To establish the tariff band, the following steps are taken:
a. The standard deviation corresponding to all the data used to estimate the average investment cost was calculated, resulting in $1,041.
b. The upper limit is established as the updated average investment cost plus the standard deviation, that is, $2,469 + $1,041 = $3,510 per kW.
c. The lower limit is established as the updated average investment cost minus the standard deviation found in step 1, in other words, $2,469 - $1,041 = $1,427 per kW.
According to RJD-152-2011, at no time can the prices paid for the purchase of electric energy be higher than the upper limit of the current tariff band, nor lower than the lower limit of that band.
2.14. Calculation of the tariff The calculation of the tariff is obtained as follows:
Where:
p = Sale tariff CE = Operating costs CFC = Fixed capital cost, which is the investment (M) multiplied by the factor that reflects the financing conditions (FC).
Thus, CFC = M * FC fa = Total or unit environmental factor E = Annual sales (quantity of energy) Once all the variables of the formula to obtain the tariff have been calculated, they are entered into the tariff calculation formula, and the result is as follows:
2.15. Time-of-use seasonal structure The seasonal time-of-use tariff structure that was used is the one approved in RJD-152-2011 which indicates the following:
. The high season period (período alto) covers the five months from January to May, and the rest of the year is the low season or period.
. The time-of-use periods are divided into three: peak (punta), off-peak (valle), and night (noche). The peak is constituted by the five hours, separated into two blocks, of highest demand on the five working days of the week, from 10:30 a.m. to 1:00 p.m. and from 5:30 p.m. to 8:00 p.m. The night period covers from 8:00 p.m. to 6:00 a.m. the following day, seven days a week. The off-peak covers the remaining hours, including from 6:00 a.m. to 8:00 p.m. on weekends, where there is no peak.
The dimensionless parameters that will be applied to the defined tariff level are the following:
According to the above dimensionless parameters and the calculated tariff bands, the tariff structure to be approved for the average and the band ($/kWh) is:
2.16. Currency in which the tariff will be expressed According to the provisions of resolution RJD-152-2011, the tariffs resulting from the detailed methodology will be expressed and invoiced in United States dollars (US$ or $).
The conditions under which payments are made will be defined in accordance with what the parties establish contractually, and based on applicable regulations.
2.17. Adjustment of the tariff band values The values of the tariff band will be reviewed at least once a year, in accordance with the provisions of Ley Nº 7593.
2.18. Obligation to submit information New private hydroelectric generators to which the rates established through this tariff setting are applied are obligated to submit annually to ARESEP audited financial information (including operational and maintenance expenses, administrative expenses, and individual investment expenses) along with their proper justification. For these purposes, the company’s audited financial statements must be submitted at least annually.
2.19. Application of methodology The methodology approved through resolution RJD-152-2011 establishes that its application is for new private generation plants for sale to ICE that operate under the framework of Chapter I of Ley Nº 7200 and that generate electricity with hydroelectric sources, once it is published in the Official Gazette La Gaceta.
II.-That with respect to the statements of the opponents, summarized in Resultando VI of this resolution and in accordance with the analysis conducted by the Energy Services Directorate (Dirección de Servicios de Energía), the following is indicated:
Some of the most recurrent arguments that could potentially most significantly affect the rate are summarized. ARESEP’s position on each of them is set forth.
This section is based on the analysis that was carried out when the respective methodology was submitted to a public hearing (OT-029-2011). In our case, it is not possible to differentiate between the arguments put forward by opponents to the methodology and those regarding its respective application. However, it must be taken into account that once the methodology is defined by the Board of Directors (Junta Directiva), the arguments presented lose their validity.
"(.)
1.1. Main arguments presented.
The oppositions deal with a considerable number of specific topics.
3.1.1 Rate scheme: Price-cap rates, band rate, or single rate? Several of the oppositions expressed at the hearing objected to the price-cap rate scheme, and in particular the use of a rate associated with average costs to establish that cap.
ARESEP's analysis subsequent to the hearing coincides with the majority of the arguments against establishing a price-cap rate based on average costs. That scheme has the drawback of leaving private generators with costs higher than the average that ends up being estimated without the possibility of participating as an energy supplier for ICE. In this regard, it must be considered, first, 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 efficient production standard. Although the equipment used in that industry is highly standardized, the diversity of geological, topographical, and hydrological conditions of the 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 rate scheme is to minimize the use of thermal generation, provided that the substitution is carried out with renewable sources and significantly lower costs.
Considering the three aspects mentioned above, it is concluded that there may be plants with costs higher than the average that nevertheless produce with efficiency levels much higher than those of thermal generation and with less negative environmental impact. For that reason, the rate scheme should establish an upper limit above average costs, within a reasonable range to stimulate efficiency in the segment of tradable private hydroelectric generation under the framework of Ley Nº 7200.
On the other hand, the price-cap rate scheme has the drawback of not establishing a lower limit for the price of energy to be purchased by ICE. This would mean that ICE, in its condition as a monopsonistic operator, would have an inconveniently wide margin to set prices below the cost of many operators who can be considered efficient.
In accordance with the foregoing, the Board of Directors chose to approve a band rate scheme. Given the lack of detailed information on efficiency levels in the relevant industrial segment, a statistical criterion has been employed to define the band (as a function of the average and standard deviation of investment costs).
On the other hand, some oppositions requested that a single rate be established to set the sale price of the energy to be purchased by ICE under the framework of Ley Nº 7200. In this regard, it is worth keeping in mind that if a single rate were established with a value equal to the upper limit of the rate band proposed in this report, ICE would be left with no discretion to give preference to suppliers quoting lower rates. On the contrary, it would be obligated to grant the same rate to all suppliers, and to award contracts based on criteria other than the offered price. This eventual scheme would entail a disincentive to technical and economic efficiency in the operation of the hydroelectric companies willing to sell their energy under the framework of Ley Nº 7200.
3.1.2 Recognition of capital profitability: Although the CAPM (Capital Assets Pricing Model) method presents some disadvantages and practical application problems, it is usable for the conditions of the Costa Rican private hydroelectric energy generation segment, because it operates under market conditions and is composed of a significant number of operators who do not have restrictions on the mobility of their capital. For industries with conditions such as those mentioned, the CAPM is an adequate method for recognizing the return on capital. Among its advantages are that it allows consideration of the particularities of a sector (such as the electrical one), it is more transparent than other alternatives, it allows for taking long-term averages of relevant variables to avoid high volatility in results, and it admits adjustments due to 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.
3.1.3 Financing: The financing conditions were defined as follows: i) the amortization period was set at 20 years to match it with the maximum contract period allowed by law; ii) the interest rate will be taken from the periodic publications of the Central Bank of Costa Rica (Banco Central de Costa Rica); iii) financial leverage will be estimated based on 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.
3.1.4 Periodicity of contracts and rates: The original proposal that was taken to public hearing contained two alternatives regarding the rate term: one with a single rate during the 20 years of the contract; and another segmenting the term into two sub-periods 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 unbankable. For this reason, in the approved methodology, it was agreed to leave only the alternative of a single rate for the entire duration of the contract.
The rate recognizes a contractual period of 20 years (maximum permitted by legislation), although the projects have a useful life that can double this period. Although it is recognized that this restriction creates uncertainty for the investor, by not being able to be sure of being re-contracted 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. Furthermore, it is considered that the probability of a new contract after the expiration of the 20-year period is high, taking into account the imminent integration of the Central American electricity market, the trend of increasing hydrocarbon prices, and the growth of national electricity demand.
3.1.5 The environmental factor: ARESEP agrees with establishing an environmental factor in public service rates. 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 undergo the process established in the legislation (public hearing).
3.1.6 Rate updating: The values of the rate band will be reviewed at least once a year, in accordance with the provisions of Ley Nº 7593. All the values that determine the rate will be updated in each tariff setting.
3.1.7 Investment: Several alternatives have been proposed regarding the amount of investment to be recognized in this rate model. Some of the opponents' proposals request recognizing information derived from a database of plants from the United States of America (USA). Although this database contains a large number of plants, which is in principle 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 that corresponding to Costa Rica. Additionally, it must be noted that if one wishes to use this database to establish the investment cost, it must also be used to establish the cost of exploitation (costo de explotación), 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.
A decision was made to select a sample of investment cost data from Central American plants, coming from a study prepared by a regional body: the Electrification Council of Central America-Regional Indicative Planning Working Group (Consejo de Electrificación de América Central-Grupo de Trabajo de Planificación Indicativa Regional, GTPIR). The report from which the investment data originates 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 the investment cost data of Costa Rican plants coming from ARESEP tariff studies. It is considered that these sources of information are more appropriate than the one containing investment data in 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 contained below the upper limit of 20 MW established by Ley Nº 7200. In this way, an attempt is made 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 was indicated in some oppositions. It must be added that, to the average investment cost value, the capitalization of two years of interest from the grace period is included. Furthermore, it must be considered that the CAPM model incorporates a leveraged "beta," which reflects the risk associated with financing.
3.1.8 Exploitation costs: Of the available sources, it has been considered that the best is the one corresponding to the costs of ICE plants, because it involves a moderately significant number of plants, these are national, and periodic information about them is available. Likewise, corresponding adjustments must be made to the information presented to account for the type of costs incurred and the size of the plants.
Taking into account what was expressed in some oppositions, the estimation of the exploitation cost was revised using the procedure indicated above.
In this case, the Energy Services Directorate strictly applied what was approved by the ARESEP Board of Directors when approving the respective methodology.
3.1.9 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 business productive 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 up to the regulatory entity to decide on the destination of such returns.
3.1.10 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.
3.1.11 Objectivity of the methodology: In some oppositions, it was expressed that the fact that ICE contributed to the design of the proposed methodology generates objectivity problems in its formulation. In this regard, it must be clarified that the methodology proposed by the Regulatory Authority (Autoridad Reguladora) is based on several sources of information, and was proposed, in its original version, by ARESEP officials. It has subsequently been enriched with contributions from different actors, including some of the operators; it is not an ICE proposal. Although the latter 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 possible interested parties in the process may express their technical opinion and their opposition, if they eventually considered that the proposal suffers from conceptual or methodological problems, or biases in favor of one of the parties.
3.1.12 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 Ley Nº 7200. Two of the main elements of the model that would allow achieving that 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 of selling 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 due course. Other improvements with respect to the formulation of the model sent 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 when applicable; and b) using for the application of the CAPM methodology the values obtained from an internationally recognized, verifiable, and periodically updatable source of information.
3.1.13 ARESEP's authority to set any rate modality: Regarding ARESEP's authority to establish any type of rate methodology, the Office of the Attorney General of the Republic (Procuraduría General de la República) has already pronounced itself 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:
[...] pursuant to Article 3 of the Law of the Regulatory Authority (Ley de la Autoridad Reguladora), the principle governing tariff setting is that of cost-of-service (servicio al costo). Said article states in its subsection b) regarding cost-of-service:
'... Principle that determines the way of setting rates and prices for public services, so that only the costs necessary to provide the service are considered, 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 [refers to Article 31 of Ley Nº 7593] obligates 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, energy conservation, and economic efficiency defined in the National Development Plan (Plan Nacional de Desarrollo). At the same time, the Authority is obligated to ensure that its rates respect the financial equilibrium of the service-providing entities. [...]' In compliance with this principle [refers to the principle of cost-of-service], the Regulatory Entity (Entidad Reguladora) may establish various methodologies [the methodology - states 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 specific result, in this case the setting of 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 that effect, that beyond respecting the principles governing tariff setting, the choice of the most adequate methodology constitutes a problem of a technical nature. A nature that also applies to the work aimed at determining whether the selected methodology respects the cited principle. (The original is not underlined).
'One could expand on the above to maintain that in the choice and application of any methodology, the Regulatory Entity must comply with the Law and with technical criteria, which in any case may be an element for determining 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 ARESEP has broad authority to establish and use the methodologies it deems convenient, as long as the principle of cost-of-service is respected, the financial equilibrium of the public service providers subject to the regulations of Ley Nº 7593 is not undermined, and they are in conformity with the provisions of Article 16 of the cited General Law. These authorities include the setting of specific rates or rate bands. Keep in mind that a rate band is nothing other than a possible sequence of authorized rates. It must be borne in mind that the setting of rates via bands by public service regulatory entities worldwide is frequent.
Finally, it is worth citing the recent Resolution 000506-F-S1-2010 -issued by the First Chamber (Sala Primera) of our Supreme Court of Justice (Corte Suprema de Justicia), at 9:45 a.m. on April 30, 2010-, in what is pertinent:
[...]
CONSIDERING (CONSIDERANDO) [...]
III. [...] Then, despite alleging that the principles of legality, reasonableness, proportionality, and legal certainty were infringed, it does not indicate how this occurs, but rather limits itself to pointing out that the band system constitutes a delegation of powers. For this Chamber, it is clear, according to precept 5 of Ley Nº 7593 of ARESEP, 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 nullity is sought in this process, created a band system for determining the price of fuels at ports and airports [...] In accordance with the stipulations of numeral 31 ibidem, ARESEP can enable or create price calculation models for regulated services, being able to take into account variables external to the providers [...] Thus, in this case, the defendant [refers to ARESEP] did not delegate its competence to RECOPE, but rather established the formula that it technically estimated to be more adequate and suitable for regulating the specific market [...] Consequently, the only thing the Refinery [refers to RECOPE S. A.] does is apply it [...], but it is ARESEP who continues determining the rate for that market, through the established methodology. [...] V. In accordance with the foregoing, the illegalities invoked by the appellant have not occurred, therefore, the appeal must be rejected.
1.2. A summary is presented below of the main arguments of the oppositions and supporting briefs admitted at the time for the rate methodology on hydroelectric generation and that may have an impact on the definition of the rate level.
1.2.1. Asociación Costarricense de Grandes Consumidores de Energía, ACOGRACE, represented by Carlos Roldán Villalobos, ID 4-138-436, folios 87-95 of ET-028-2011:
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 are not certain that those plants ARESEP is using to define those caps were hydroelectric or wind projects that were developed efficiently. And the problem with this is that plants that were inefficient at the time of their execution are used as a reference.
There is agreement with what is expressed in the cited text, insofar as there is no certainty that the estimated average investment and exploitation values correspond to efficient productive processes. The option proposed in this report, of establishing a rate band around the investment average, allows for overcoming this uncertainty, within reasonable limits. In relation to this topic, see point 3.1.1 of this section.
ARESEP must initiate the financial oversight of private electrical generation projects, requesting and reviewing the corresponding financial statements so that they reflect, to review whether the actual investments and the proposed investment models are being reflected. And they should consider regional investment and operation data, adjusted to the national situation.
There is agreement with what is expressed in the cited text, regarding the importance of having financial information from private generation operations under the framework of Ley Nº 7200, as input for the adequate setting of rates. Currently, little information of that type is available. In this report, it is proposed that operators selected to sell energy to ICE must submit to ARESEP periodic financial reports on their operations.
1.2.2. Jorge Arturo Alfaro Vargas, ID 2-306-651:
The objection is with respect to the price-cap rate concept, since one is in a condition where a very detailed analysis is being conducted, very much at real cost, where it is not possible to reduce that price being used in the model and that using a price-cap rate concept disadvantages the investor in that concept.
There is agreement with what is expressed in the previous text. See in this regard what is expressed in point 3.1.1 of this section.
1.2.3. Rubén Zamora Castro, ID 1-1054-273, folios 97-102 of ET-028-2011:
Because the model does not incentivize, that is, it is proposed that incentives are needed and the model disincentivizes. It is proposed that an effort must be made in that incentivization and no effort is seen to be proposed.
On this topic, see what is expressed in points 3.1.1, 3.1.5, and 3.1.12 of this section.
Because the model first proposes price-cap rates, that is, that is the maximum that will be set. Price-cap rates are proposed, with information that was hardly available, much information coming precisely from the single buyer which is ICE, which can generate a conflict of interest, because in the end it is the only one that will buy and what the generators know is that this is the maximum they will aspire to.
From the point of view of the act's content, there is also a problem, which is that in principle the content, the law says, 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, 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 must be considered when setting rates, so we have that in the Constitution, in the Law, and even in the same report that mentions an environmental factor, it is established at all levels that there must be an environmental parameter, which is part of the lawful content of that act. However, in the model there is no environmental factor at all. An omission that could even be an 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 drawbacks of establishing a price-cap rate scheme based on average costs, see what is expressed in point 3.1.1. In relation to the need to include an environmental component in the rate, see point 3.1.5.
We must also legally distinguish the difference that exists 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 the property of the State and it is before, during, and after. But when we are in a case like this, where we have an electric generation plant and it is the property of X company, that is framed by the right of private property 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 gave the asset.
That is very dangerous because it could also be a constitutional violation of the right of private property. Why? Because one of the elements of the right of private property, which is fundamental in any democratic country, is the economic value that private property has. If I leave supposedly private property without its economic value, I am denaturing it and turning myself into a totalitarian country where I assign no value to any assets nor give them any type of importance.
There is agreement with what is expressed in this position, in that the contractual conditions inherent to the sale of electricity to ICE under the framework of Ley Nº 7200 are different from those of public service concession contracts. The methodology includes the updating of all variables in each tariff setting, including the investment line item, which allows the project value to be updated in each tariff setting.
1.2.4. P.H. Don Pedro S. A. and P.H. Río Volcán S. A. Represented by José Antonio Benavídez Sancho, ID 1-0478-0037, folios 113-172 of ET-028-2011:
ARESEP is calling a tariff hearing to determine the "reference price-cap rates" and does so with a methodology (CAPM) that minimizes the calculation of investor profitability considering the principle of cost-of-service. ARESEP intends that with this signal, private generators compete within a legal framework that is not designed for those purposes, offering different prices lower than the cap, widely contradicting several fundamental precepts of Ley Nº 7593.
With the shift from the price-cap rate scheme based on average costs to a rate band scheme around these, and with the change in the values of several CAPM methodology parameters, the possibilities of incentivizing private investment aimed at selling energy to ICE under the framework of Ley Nº 7200 are broadened. See in this regard points 3.1.1, 3.1.2, and 3.1.5 of this section.
The CAPM used by ARESEP implies a minimum profitability that potential investors would demand, but specifically, the proposed method should at least consider 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 low or nil liquidity that such investments have because they are not listed on efficient stock markets. For the reasons set forth above, ARESEP is requested not to establish a reference price-cap (tarifa tope), but rather, as indicated in Law No. 7593, to set a rate (tarifa) for the purchase and sale of energy between private generators and ICE under Chapter I of Law No. 7200, which must consider the sources of risk 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 is to be set are considered. In any case, the establishment of a tariff band (banda tarifaria) offers a margin to accommodate projects facing particular situations. See what is indicated in points 3.1.1, 3.1.2, and 3.1.5 of this section.
Regarding the drawbacks of establishing a single rate to set the price of energy to be purchased by ICE under Law No. 7200, see the last paragraph of point 3.1.1 of this section.
There does not appear to be evidence, within ARESEP's model, of the inclusion of a variable representing the criterion of environmental sustainability, 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 3.1.5 of this section.
It is not clear how this model intends to "attract" investment for the development of electricity with renewable resources and private capital participation, as ARESEP's document does not explain how the model achieves this objective.
Point 3.1.12 of this section explains the main aspects of the tariff model proposed in this report that tend to stimulate private investment for hydroelectric power generation, within the framework of what Law No. 7200 establishes.
It is inadmissible that the model and the calculation parameters were developed by ICE officials, who are one of the parties in the energy purchase-sale relationship under Chapter 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 was expressed in the text cited in the previous paragraph, see point 3.1.11 of this section.
It is necessary to resolve the situation of the tariff file (expediente tarifario) 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-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 issue raised in the text of the previous paragraph, see point 3.1.10 of this section.
Regarding the presented model, 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 using a global tax rate of 40.5%, which combines the income tax and the tax on dividend distribution.
Regarding the 15% tax on dividends, as with all businesses, these taxes must be covered by the beneficiaries of said dividends. The destination of surpluses or tariff revenues (payment of dividends, taxes, etc.) are not issues that should be addressed by the regulatory body.
Since the rate is established in US dollars, it must be clarified that it must be convertible at the corresponding selling exchange rate.
This report establishes that the payment conditions will be defined in accordance with what the parties establish contractually, and based on 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. This 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 3.1.6 of this section.
For investment costs, it was proposed to use a US database, comprised of 1634 data points corresponding to hydraulic plants of 20 MW or less, run-of-river (a filo de agua) or with reservoirs for these sizes. The updating of investment costs to present value was carried out using the industrial producer price index of the United States (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 import costs (sales tax), which in the case of US plants represent local costs.
Regarding what was expressed in the previous paragraph, see point 3.1.7 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 precise and corresponds to the current conditions for projects of this type. Additionally, to address this point, the methodology considers a leveraged "beta", which implicitly incorporates the risk derived from the project's financing.
The CAPM model with which profitability is calculated must be adjusted in such a way as to reflect the reality of the private electricity generation sector in CR. Given this, what is proposed is to include an additional variable in the formula called Company Risk (Riesgo Empresa), 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 US but located in CR. Similarly, this value can also consider geological, hydrological, environmental, and construction risk, 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 standard deviation of the profitability of a hydroelectric project, financed 100% 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 the 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 lower risk than competitive markets.
Regarding the definition of the β parameter, there is agreement with the proposed source, or another similar one that is public and reliable. See point 3.1.2 of this report.
On the other issues, the Board of Directors (Junta Directiva) has already established the respective methodology and sources of information.
In relation to the recognition of the dividend tax, refer to point 3.1.9.
Regarding the rate adjustment, it was proposed that it be only on operating costs (costos de explotación), this being inadequate due to the length of the proposed contract terms, which correspond to 14 and 20 years of operation to which the construction period must be added. Within these terms, the entire rate must be adjusted, since future flows are affected by inflation and devaluation. Regarding inflation, it is advisable to use the US Producer Price Index parameter using the Bureau of Labor Statistics of the United States of America as a source; 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 long duration of the contracts and the costs involved in the construction period, it is considered advisable to incorporate the financial expenses incurred during the grace period as an integral part of the investment cost when applicable. Regarding the updating of the different costs, see what is expressed in point 3.1.6.
1.2.5. Oppositions presented by: Asociación Costarricense de Productores de Energía (ACOPE), represented by Mario Alvarado Mora, ID 4-129-640, folios 367-406 of ET-028-2011; Empresa Eléctrica Matamoros S. A., represented by Juan Carlos Madrigal Matamoros, ID 1-0771-0693, folios 251-283 of ET-028-2011; Hidroeléctrica Aguas Zarcas, represented by José Jonathan Zúñiga Prado, ID 1-890-593, folios 195-237 of ET-028-2011; and Inversiones La Manguera S. A., represented by Mauricio López Cedeño, ID 1-869-512, folios 330-365 of ET-028-2011.
The concept of a 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 investors.
It is a competition that also lacks a legal framework, as Law 7200 nor any other Law that we know of is designed for this purpose; it is precisely for this that the special electricity commission of the Legislative Assembly (Asamblea Legislativa) is discussing the General Electricity Law project that 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 a lower profitability from the investor than that established by a methodology like 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 tariff band (banda tarifaria) scheme. See in this regard point 3.1.1 of this report. In relation to the application of the CAPM methodology, see point 3.1.2. Regarding the legal framework that allows ICE to establish contracts for electricity purchases under Law No. 7200, based on a tariff band scheme defined by ARESEP, see point 3.1.13 of this report.
There is no evidence in the model of the environmental sustainability criterion established in Law No. 7593; there are important elements that should be considered to assess this criterion, opportunity cost and externalities of thermal sources, and 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 emissions, with the difference in foreign currency outflow, with the difference in a country's image problems.
Regarding the advisability of including an environmental component in the rate, see point 3.1.5 of this section.
ARESEP also cites the possibility that these rates decided through this process be applied to private generators that sell to other authorized agents, but we really do not know of any other authorized agents or under what legal regulations this could be done because the only possibility we know of is Law No. 7200 for private generators. If the Regulatory Authority (Autoridad Reguladora) could enlighten us on this topic, we could really assess this matter because the file does not contain evidence of what those other options are.
Regarding this point, the present tariff setting will be applicable only to those new hydroelectric plants that sell electric energy solely to ICE, since its scope of action was defined in the methodology approved by the Board of Directors (resolution RJD-0152-2011).
The models and calculation parameters, as indicated in the same file of this public hearing, were made by ICE, which is the buyer, evidencing a conflict of interest.
On the topic addressed in the previous paragraph, see what is set forth in point 3.1.11 of this section.
On May 7, 2010, according to resolution RJD-009-2010, published on June 7, 2010, it establishes a methodology to set rates for existing generators. The current tariff procedure contemplates the case of a rate for re-contracting and, furthermore, the procedure we are discussing now differentiates between hydroelectric and wind cases, which is an additional element compared to what was established in the previous resolution of the Board of Directors, and we consider it very prudent, to avoid confusion, contradictions, and errors, to request ARESEP to repeal and archive this resolution published on June 7, 2010.
The tariff models that were discussed in the public hearing of April 6, 2011, are only applicable to new hydroelectric plants.
On this topic, see what is expressed in point 3.1.10 of this section.
The model does not include the 15% tax on dividends established by the Income Tax Law in its Article 18, subsection a. Which is reflected using a global tax rate of 40.5%, which combines the income tax and the tax on dividend distribution.
Regarding what was expressed in the previous paragraph, see point 3.1.9 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 the adjustments must be periodic for internal and external inflation variables as well as for devaluation, because the financial part 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 annexed in the study we have submitted in documentation here at the entrance of this hearing for it to be assessed by the Regulatory Authority.
On the duration of the contracts, see what is expressed in point 3.1.4 of this section. And on the financing topic, see points 3.1.2 and 3.1.3.
For the investment cost for hydroelectric plants, ARESEP basically discards an important database and discards it because the updating 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 actually pertain to this tariff setting, which are run-of-river plants smaller than 20 Megawatts or with reservoirs for those sizes, with the weighted average using the Industrial Producer Index of the United States, which is what ARESEP recommends, and it results in a value of 3,396 dollars per installed kilowatt.
Regarding what was expressed in the previous paragraph concerning the estimation of investment costs, see point 3.1.7 of this section.
In the case of operating costs (costos de explotación) for hydroelectric plants, to the data provided by ARESEP we have added the data that were included in tariff file 135-2008, which belong to our associates. Also included are the administrative costs that were omitted by ARESEP and are very important, as it is not only operation and maintenance, but also 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 of the average plant size, plant capacities that are basically in that group, but that are equal to or less than 20 Megawatts, are considered, and with the average data of these capacities, the operating cost is obtained, which is 146 dollars per kilowatt per year.
In the operating cost category, administrative, operation, and maintenance costs are included, which were taken from a representative sample of plants, updated to present value.
On this topic, see also what is expressed in point 3.1.8 of this section.
On the topic of profitability (CAPM), making 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 gives 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 the specific cases in new contracts are 15.81 and 9.45 for the profitability of the investor's cost of capital.
In the proposal presented in this report, several of the parameters used to apply the CAPM methodology according to the methodology approved by the Board of Directors were modified. See in this regard point 3.1.2 of this report.
Regarding the rate adjustment, it was proposed that it be only on operating costs, this being inadequate due to the length of the proposed contract terms, which correspond to 14 and 20 years of operation to which the construction period must be added. Within these terms, the entire rate must be adjusted, since future flows are affected by inflation and devaluation. Regarding inflation, it is advisable to use the US Producer Price Index parameter using the Bureau of Labor Statistics of the United States of America as a source; 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 topic of the construction period, it is indicated that the proposal in this report includes, as part of the work's cost, the capitalization of two grace years when applicable. Regarding the updating of the different costs, see point 3.1.6 of this report.
1.2.6. Esteban Lara Erramouspe, ID 1-785-994, 407-540 of ET-028-2011:
The rate established by ARESEP does not provide adequate profitability for the activity being carried out. ARESEP's tariff model is methodologically correct, but the information applied to it is incorrect and the signals ARESEP is sending to the market do not encourage private company participation at all.
Point 3.1.12 of this section explains the main aspects of the tariff model proposed in this report that tend to stimulate private investment for hydroelectric power generation, within the framework of Law No. 7200.
Regarding the tariff structure, seasonality concentrates too much income in 5 months of the year, which, let's say, financially is sometimes not logical for those with financial burdens. As it is observed that 66% of 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 tariff structure is designed so that all the financial resources that the project requires are generated. The management of funds throughout the year falls within the scope of administrative management by the investor.
Regarding the actual production of a plant, we see that the method used by ARESEP is very simplistic; they even make their calculations when applying it with an efficiency of 0.91, I imagine it is a very new technology, and we performed a real operational analysis of a plant, that is, introducing the hydrological factors, the efficiencies of the real equipment at their different operating levels, and it shows us that instead of being 14.35 Gigawatts per year in the case of a 2.5 plant, it would yield about 14.7 Gigawatts, and although the variation seems positive, the value in the formula is in the lower index, which again reduces the rate.
The determination of the plant factor (Fp) is made from the average of the plant factor values over several years, corresponding to national private hydroelectric plants with installed capacities equal to or less than 20 MW, that have been generating during a substantial proportion of the respective year (10 or more months). It is, therefore, an estimate based on a large amount of real data from plants similar to those that can sell energy to ICE under Chapter 1 of Law No. 7200.
It is not understandable how the profitability of an investment must decrease upon the expiration of the contract term, since what it incentivizes in a real investment environment is to sell those plants and seek new investments that generate more 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 not necessarily pass it on to its consumers (at least to date it has not done so with the plants that renewed contracts under the terms of Law No. 7200).
In relation to the topic addressed in the previous paragraph, see point 3.1.4 of this section.
In the case of the investment and contract term, it must be clarified whether the financing is the initial one upon signing the financing or the way in which it should be applied. In the tax area, only the application of income taxes is foreseen, and taxes on dividends are not being considered. Existing legislation applies a 15% tax rate on the profits distributed among the company's partners.
In relation to the topic of recognizing the dividend tax, see point 3.1.9 of this section.
The interest rate applied to the investment must be the effective one, that is, it must include formalization costs and commissions, unless they are included as part of the total investment costs.
The interest rate was estimated with the rate periodically calculated by the Banco Central de Costa Rica for loans in dollars to the industrial sector. On this topic, see point 3.1.3.
In the calculation of the cost's profitability, ARESEP proposes using a somewhat outdated beta and, that is, an average leverage of projects that is not necessarily the reality for each of the projects.
This report accepts the recommendation expressed in several oppositions and approved in the methodology, in the sense of using as a source the information provided and published on the Internet by Dr. Aswath Damodaran, professor at New York University. See in this regard point 3.1.2.
1.2.7. José Daniel Lara Aguilar, ID 1-1326-0817:
The problem begins because, although ARESEP intends to stimulate investment by using reference terms provided by ICE, being the sole buyer, it fails to reflect the activities of energy costs or investment markets, and, well, this 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 very clearly touch upon the concept of reasonable profit, which clashes with the concept of a price-cap (tarifa tope) being implemented, since a lower rate would result in a non-reasonable profit. So, if we say it is a price-cap for a reasonable profit, a lower rate would mean a non-reasonable profit.
This report proposes a tariff band (banda tarifaria) scheme, not a price-cap. See point 3.1.1 of this section.
The value of the "beta" parameter of the CAPM model used in this report, says it is 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's look at a couple of details and phrases from those same reports. The first thing we can see is that it is established here that, since the year 2000, those limitations that Mr. Álvaro mentions are known.
We are in 2011, the knowledge of Betas for capital returns has not been resolved with certainty. This raises significant doubts about whether those reasonable profits that these reports aim for can be achieved with information that has not been attempted to be updated, and let's see here, first of all, the sources, it says very clearly, and I will read it, "the limitations originate in the case of Betas, because when consulting the probable source of information on the Internet, it must be indicated that a credit card number must be entered to continue with the consultation." This means that the procedures for tariff elaboration are based on free Internet information and that the necessary investments have not been made to acquire them from sources that are a little more serious or reliable.
In relation to the beta value, 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 New York University. See in this regard point 3.1.2.
1.2.8. Tobías Cossen, ID 1267600140826:
What ARESEP does with that rate and with that model with a price-cap of 9.4 cents is to prevent private project investment. Because with that rate, no project can clearly be carried out.
The improvements introduced in the tariff model proposed in this report allow it to increase its capacity to stimulate private investment aimed at selling hydroelectric energy to ICE under Law No. 7200.
1.2.9. Compañía Eléctrica Doña Julia, represented by Ronald Álvarez Campos, ID 2-530-396, folios 284-329 of ET-028-2011:
Regarding the contractual terms that the model proposes. In the file, ARESEP emphasizes that the aim is to incentivize the participation of private entities in generation; this is not only incentivized by a good rate or a good legal framework; there is a factor we are leaving aside, which is business continuity. We all know, and the file itself states, 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 to these projects after their contracts? Where are we guaranteeing the continuity of business for these investors?
See what is expressed regarding the periodicity of contracts in point 3.1.4.
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 presented as the acceptable rate to re-contract 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 applied, but that the values be really updated in such a way as to reflect the reality that allows an investor to find it attractive to bring a plant to this country.
In relation to the topic of the tariff methodology for existing plants, see point 3.1.10 of this section.
1.2.10. Federico Fernández Woodbridge, ID 1-844-157:
A fixed tariff, what ARESEP is proposing is to adjust the operating costs (costos de explotación), 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 earn money and that money must at least preserve its purchasing power and what is happening with the dollar today is very worrying.
The updating of costs in the proposal of this report allows them 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 region's development bank par excellence is the Central American Bank and the cut-off rate of the Central American Bank is 12%, that is, any project that any of the people here takes to the BCIE for financing, they will say, no, look, I cannot finance this project, because I have a 12% cut-off rate.
Based on the method of estimating the rate of return established in this report, it is projected that it will be greater than 12% and that therefore it facilitates that the projects will be bankable. See point 3.1.2 of this section.
1.2.11. Allan Broide Wohlstein, ID 1-1110-0069:
If a price-cap tariff (tarifa tope) is set, the concept of the incentive is lost, one falls into a problem called the "winners curse" or the winner's curse, which is a phenomenon that occurs in auctions or bidding processes and one example is the project that won in the last bidding process and also puts it in a situation of asymmetric negotiation 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 tariff (tarifa tope), they should not use the average price, but the price at the margin, right, they should use the highest costs and the lowest efficiency in order to include all projects and not fall into the vices, let's say, or the problems that this entails.
Given the time desired to bring in new projects, the best thing 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 long process with ICE to determine what the new price will be.
The Board of Directors (Junta Directiva) of ARESEP coincides with what is expressed in the preceding text, in relation to the disadvantages associated with establishing a price-cap tariff (tarifa tope), and therefore decided to approve a methodology based on price bands. On the other hand, regarding the drawbacks of establishing a single tariff to set the sale price of energy to be purchased by ICE within the framework of Law No. 7200, see point 3.1.1 of this section.
1.2.12. Hidroeléctrica Caño Grande, represented by Alonso Núñez Quesada, ID 4-160-063, pages 251-283 of ET-028-2011:
This object or this philosophy existing in the mathematical model has serious friction with what is established in Law No. 7593, Law of the Regulatory Authority of Public Services. The tariff-setting power (potestad tarifaria), as is well indicated and has been indicated in various rulings by the Constitutional Chamber (Sala Constitucional) is a power-duty, but more than that it is an empire power (potestad de imperio) that the Law attributed to a decentralized entity so that these officials, as officials and adhering to the principle of legality, can then apply the existing legislation. The guidelines of that tariff-setting power (potestad tarifaria) are clearly established in articles 3, 5, 25 to 29, and 31 of Law No. 7593. And it turns out that being an empire power (potestad de imperio), because it effectively affects the legal sphere of individuals and that affecting the legal sphere of individuals has its vicissitudes because it means the empire power that the State has to come to restrict, to come to limit, or to come to eliminate the consolidated legal situations that exist in a contractual relationship.
That means that according to what is intended in the mathematical method and if one can observe, there is a lack of competence finally at the moment in which the respective price setting is made between the generator and the Costa Rican Electricity Institute (ICE), why? Because there is no rule that authorizes the Regulatory Authority of Public Services to establish a tariff that determines a reference ceiling and allows the generator and ICE to establish prices in the contractual relationship. That would imply a delegation of that tariff-setting power (potestad tarifaria) and there is no rule that establishes that power of delegation on behalf of the Law so that a private party can establish a price, which is public, and precisely therein lies a friction on the concept of the legal reservation (reserva de ley). And the reason why there must be a legal rule that establishes that possibility of delegating, of delegating that power. The model sends back to the price being determined between the generator and ICE, those who set the tariff are them and not ARESEP. They are going to define a tariff for the providers.
Where precisely the transversal axis that the Law of the Regulatory Authority of Public Services has is that as an entity, ARESEP comes to be the impartial entity that comes to determine that tariff, that power, that economic consideration that is the fair one that must be given to the provider of the public service, well, I have effectively included here that if a band system concept is given, because from the ceiling to zero there is a band. And then that would imply effectively ignoring the competencies that ARESEP has in its favor due to the lack of application, which is a vice, lack of competence is one of the most serious vices that administrative conduct has. And then, by this lack of application, articles 3, 5, 29, 30, and 31 of Law No. 7593 are violated.
The State recently in 2009, through legal opinion 0J-66-2009, has said that the establishment of a band system in a tariff is illegal and is an illegitimate conduct that the regulatory entity would carry out. I believe that although the legal opinion is not binding, it must indeed be kept in mind, that it is a source of administrative law as jurisprudence. And this effectively has a lingering feeling that must be valued at this procedural moment, that being in the preparatory stage, these matters pertaining to the powers, to that empire power, to the reservation of Law No. 7593 that the regulatory entity has, must be observed, wherein it is established that it cannot delegate that competence to private parties in the concession relationship.
Another effect that can be produced with a reference ceiling tariff is that a liberalization effect of the service can occur because effectively there can be a liberalization of the powers of tariff-setting when there is a liberalization of the public service, as is well established in article 50 of the General Telecommunications Law, where it is said that the tariffs for telecommunications services available to the public are only set by SUTEL initially, but as the market becomes more efficient and an effective competition can be guaranteed, the tariffs will be set by the providers.
It is clear that if there is no liberalization of the public generation service, there cannot be a transfer of the exercise of the empire power in tariff-setting to that generator and ICE. Because otherwise, we would then enter into a liberalization of the public service contained in article 5 of Law No. 7593.
Regarding the legal framework that allows ICE to establish contracts for electricity purchases within the framework of Law No. 7200, based on a tariff band scheme defined by ARESEP, see point 3.1.13 of this report.
1.2.13. Manrique Rojas Araya, ID 1-893-107:
A list of paper projects is used, they are not built and operating projects, none of them as far as I know, so they are merely expectations and we have seen that many of these projects are done with very poor engineering studies in which the cost projection does not adjust to reality. And I don't understand why data that does exist is omitted, some of which is on file at the same Regulatory Authority, for example, in ET-161-2010, there is a record of what the cost of the Sigifredo Solís Hydroelectric Power Plant was, which although it is more than 20 Megawatts, consists of a 24 MW plant and a 2 MW plant.
To estimate investment costs, the best available information was used. In this regard, see point 3.1.7 of this section.
On what basis is it defined to calculate the value 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 10 MW model plant. With the available information, average costs were estimated for the entire range of installed capacity below 20 MW. In this regard, see point 3.1.7 of this section and Annex 2 of this report. Regarding the calculation of the operating cost (costo de explotación), in effect a value was estimated corresponding to the average value of the installed capacity range permitted by Law No. 7200. Given that there are very few operating cost (costo de explotación) data points for that range, a conservative criterion was chosen when estimating that value.
The risk-free rate is a little different, but it is simply because a broader base is being used. As for the unlevered Beta, that was discussed quite a bit 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, I didn't find them in the case file at least. And, why if in 2008 a database that is quite prestigious was used, that of Professor Damodaran of New York University, why is it not being used now, why if in 2008 an updated database was used at that time, in 2011 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 3.1.2 of this section.
The investment cost. Data of less than 20 Megas should be used, with already built plants, not paper ones. If we are going to use plants from elsewhere, it doesn't matter, but let's make the corresponding adjustments, there are plants that have very preferential tax treatment in other latitudes. Regarding the operating cost (costo de explotación), let's include all costs, let's include private plants, the information that was already given to you in 2008, for ICE plants let's include all costs, not just part and we indeed 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 10 MW model plant. With the available information, average costs were estimated for the entire range of installed capacity below 20 MW. In this regard, see point 3.1.7 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 issue of financial conditions, see point 3.1.3 of this section. In relation to the issue of recognizing taxes, see point 3.1.9 of this section. And in relation to the CAPM methodology, see point 3.1.2 of this section.
Regarding the price-cap tariff (tarifa tope), it must be a definitive tariff. And as for the adjustment formula, it must be complete, not partial, not only adjusting operation and maintenance, that does not allow the project to be bankable.
In relation to the tariff scheme to be used, see point 3.1.1 of this section. Regarding the issue of updating costs, see point 3.1.6.
1.2.14. Claudio Volio Pacheco, ID 1-302-793:
And without financing, it is indispensable that there be adequate tariffs and bankable tariff specifications, that is, the tariffs have to be predictable and as was said previously they have to give peace of mind to the banks and among those costs that exist and do not appear in the model, there are costs such as interest during construction and another series of costs, the reserves there are 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 issue of financing, see point 3.1.3 of this section.
1.2.15. Hidro Venecia S. A., represented by Rafael Rojas Rodríguez, pages 173-193 of ET-028-2011:
To use the CAPM model it is necessary to use the model developed by the School of Business Administration of the Technological Institute of CR, for the context of an emerging economy.
In relation to the use of the CAPM methodology, see point 3.1.2 of this section.
The investment cost per installed KW, used in ARESEP's proposal is based on hydroelectric projects, many not built, mainly from Panama (10 of 15 projects), which is why there is not an outlook 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 only using three references of Costa Rican hydroelectric plants to support the cost of a generation model, and besides being adjusted by means of the US Bureau Composite Trend index, it does not reflect the increase in the cost of local labor.
Investment costs were estimated with the best information available at present. In this regard, see point 3.1.7 of this section. In relation to the recognition of the dividend tax, see point 3.1.9 of this section.
Regarding the financial cost, the ARESEP model proposes an interest rate based on offers presented in the 2006LI-00043-PROV bid for the BOT hydroelectric promoted by ICE and from the hydroelectric projects Vara Blanca and El Angel S. A. For this cost, not only the interest rate must be considered, but also the arrangement and disbursement commissions, the liquidity reserves required by the financial entity, and any other cost related to obtaining financing.
As indicated in point 3.1.3, the way of estimating the interest rate was varied with respect to what was proposed in the proposal submitted to the public hearing.
Indexation of the fixed capital installment, it is necessary to index semi-annually, the foregoing in order to maintain the purchasing power of the corresponding payments, under the following equations: Cen = Cen-1*(IPPIcrn/IPPIcrn-1) and Mn = Mn-1*(IPPIusan/IPPIusan-1) and it should also be applied in the construction period.
In relation to the way to index the tariff, see point 3.1.6 of this section.
Regarding the economic life of the project, to incentivize investment in hydroelectric projects, it is recommended that the contracting terms equal the economic life of the project.
In relation to the periodicity of contracts, see point 3.1.4 of this report.
The concept of price-cap tariff (tarifa tope), since it is not appropriate to establish a reference price-cap tariff (tarifa tope). Article 6, subsection d of Law No. 7593 of the Regulatory Authority of Public Services, establishes the power to set tariffs but article 31 states that settings that threaten the financial equilibrium of the public service providing entities will not be permitted. Therefore, ARESEP cannot delegate its function to other entities, which it would do if it established a price-cap tariff (tarifa tope).
A price-cap tariff scheme (tarifa tope) is not established, but rather a tariff band scheme. See in this regard point 3.1.1 of this section. Regarding the legitimacy of establishing a band and not a specific tariff, see point 3.1.13 of this section. (.)
III.-That in accordance with what is stated in the preceding recitals (resultandos) and whereas clauses (considerandos) and the merit of the case file, the appropriate course of action is to set the tariff band for all new private hydroelectric generators that use water as an input to generate electric energy for sale to ICE under the protection of Chapter I of Law No. 7200 and its amendments, as is ordered. Therefore, Based on the powers conferred in Law No. 7593 and its amendments, in the General Law of Public Administration, in Executive Decree No. 29732-MP, Regulation to Law No. 7593, in the Internal Regulation of Organization and Functions and, in what is ordered by the Board of Directors of the Regulatory Authority through article 6 of agreement 05-075-2011 of the ordinary session 75-2011, held on December 14, 2011; THE REGULATION COMMITTEE, RESOLVES:
I.-To set the tariff band for all new private hydroelectric generators that use water as an input to generate electric energy for sale to the Costa Rican Electricity Institute under the protection of Chapter I of Law 7200 and its amendments, composed of a lower tariff (lower limit) of $0.0798, an average tariff of $0.1080, and an upper tariff (upper limit) of $0.1363 per kWh.
II.-To establish the structure for the resulting tariff ($/kWh) as follows:
| Concepto | Porcentaje | Monto ($/kWh) |
|---|
| Costo explotación | 23,6% | 0,0255 |
| Cuota Fija de capital | 76,4% | 0,0825 |
| TOTAL | 100,0% | 0,1080 |
III.-To establish that the conditions to apply to these private generators will be those indicated in Resolutions RJD-152-2011 and RJD-161-2011, as well as what is indicated in Whereas Clause I of this act.
IV.-To thank all the natural and legal persons who have presented their support or opposition, for their valuable participation.
V.-To request the natural and legal persons who presented oppositions or supports, to please take as a response what is indicated in Whereas Clause II of this act.
VI.-To indicate to all the private generation companies affected by this tariff setting, that to improve the methodology in the future, private hydroelectric generators will have the obligation to annually present audited financial information to the Regulatory Authority, otherwise they will become subject to the sanctions established in articles 24, 38, subsection g), and 41 of Law No. 7593 and its amendments.
In compliance with what is ordered by articles 245 and 345 of the General Law of Public Administration, it is reported that against this resolution, the ordinary remedies of revocation and appeal and the extraordinary one of review may be filed. The revocation remedy may be filed before the Regulation Committee, which is responsible for resolving it, and the appeal and review remedies may be filed before the Board of Directors, which is responsible for resolving them.
In accordance with article 346 of the General Law of Public Administration, the remedies of revocation and appeal must be filed within three business days counted from the business day following the notification, and the extraordinary review remedy, within the time limits indicated in article 354 of said law.
Notify and publish.