Topeka ? An agency that advocates for consumers and small businesses in utility rate cases in Kansas raised eyebrows this month when members of its governing board openly talked about disbanding or completely changing its mission.

That discussion came shortly after the resignation of David Springe, the longtime consumer counsel at the Citizens Utility Ratepayer Board, and it was reportedly one factor leading to the resignation the following week of CURB chairman Brian Weber.

But the issues prompting that discussion at the Citizens Utility Ratepayer Board have been swirling around that agency since it was created in the 1980s, officials said, including issues directly related to construction of the Wolf Creek nuclear power plant.

The controversy erupted Dec. 11, when the five-member CURB board, all appointed by Gov. Sam Brownback, met in Wichita, mainly to discuss the process of hiring a new consumer counsel to replace Springe, who had led the agency’s staff the past 17 years.

But before discussing that topic, according to an audio recording of the meeting that has since been released, board member James Mullin II, of Johnson County, said he wanted to have a broader discussion of CURB’s “vision and structure.”

“I’d just like to discuss if we think that the budget that we’re using for CURB and the current structure of CURB is still the most cost-effective way to protect consumers and their rates in Kansas,” Mullin said. “Or would we be better off setting up a structure where utility rate cases are handled by the corporation commission, as they are in the majority of states, and either returning the funds to consumers through their utility bills, or restructuring the purpose and function of how CURB performs?”

CURB and Wolf Creek

In Kansas, as in all other states, utility companies and the rates they charge are regulated by the state. That’s because, traditionally, utilities have operated as a kind of state-sanctioned monopoly, enjoying exclusive rights to deliver service in their territory, service that, in many cases, consumers and businesses are required to have in order to occupy their buildings.

So when Kansas utilities propose building a new power plant, laying new gas lines or raising the rates they charge to customers, they must get permission from the three-member Kansas Corporation Commission, a tribunal that acts much like a court.

For most of its history, the KCC would hear testimony from the utilities and other interested parties, including the utility’s largest industrial customers. The commission also had its own staff of lawyers and analysts who would review the proposal.

“The standard is that a utility must have a reasonable opportunity to earn its authorized rate of return (on investment),” Niki Christopher, CURB’s new interim consumer counsel, told the board. “And from the customer’s side … the customer has a right to safe and reliable service at just and reasonable rates.”

But until the 1980s, there was usually no one arguing at those hearings on behalf of residential consumers and small businesses.

That changed in 1988, under then-Gov. Mike Hayden, shortly after the completion of Wolf Creek, a joint venture between Kansas City Power and Light, Wichita-based Kansas Gas and Electric, which is now part of Westar, and a group of rural electric cooperatives in Kansas.

The plant ended up costing significantly more than expected, prompting the utility companies to ask for huge rate increases.

“At the time, one of the responses by then-Gov. Hayden was to create CURB,” Mullin said. “It was created for a time, and for a purpose of visiting that issue and trying to resolve a solution that was fair to the utility, but also fair to Kansas consumers.”

Excess capacity and all-electric discounts

When it was built in the 1980s, Wolf Creek was designed for future growth. At the time it went online in 1985, the 1,170-megawatt plant was capable of producing much more electricity than any of its owners needed at the time. One of the questions before the KCC at that time was who should pay for all that excess capacity.

Pat Apple, a former state senator from Louisburg who now serves on the KCC, recalled that one compromise was to offer incentives in the form of discounts in the KCP&L territory for residential customers who used electricity for both power and heat, so-called “all-electric” customers.

“That was the historic position,” Apple said. “They wanted to sell electricity in peak time to generate additional revenue.”

That compromise, negotiated between CURB, the KCC and KCP&L, gave all-electric customers a 34 percent discount on the first 1,000 kilowatt-hours used each month, and 50 percent on all electricity used above that.

But 25 years later, in 2010, all of KCP&L’s excess capacity had been absorbed, and the company was then proposing to build a new coal-fired power plant, the Iatan 2 plant, north of Kansas City, Mo.

CURB argued during those rate hearings that it was time to phase out the all-electric discounts, and the KCC ordered dropping the discount rates to 10 percent and 21 percent respectively, resulting in significant rate hikes overnight on those customers.

Apple, who was then chairman of the Senate Utilities Committee, was angered by that move — his Louisburg-area constituents were KCP&L customers — and he said he remains upset about it today.

“In some areas they (CURB) have done well. I have been disappointed in their position on how electric heat customers in KCPL have been treated,” he said.

Focus on priorities and effectiveness

Apple said he has been unsuccessful in getting the KCC to revisit the issue of all-electric discounts, but that controversy has led him, as well as others, to question whether CURB is focused on what they see as the best interests of ratepayers.

Those concerns have now filtered down to the CURB board itself where Ellen Janoski, the new chairwoman, aired her concerns at the Dec. 11 meeting.

“Are the cases that we are electing to take on, are they truly helping consumers?” she asked. “Or do we need to kind of switch gears and have maybe some guidelines about what cases we do take on to make sure that whatever cases the consumer counsel chooses to represent reflect what the board wants and reflect a true advocacy for consumers, and not another agenda?”

In a subsequent interview, Janoski said she believes CURB has deviated from its original mission and has begun asking for detailed information about how many hours CURB staff members spend on each case and the outcomes of those cases in order to measure the agency’s effectiveness.

“Over the last couple of years, CURB has very much deviated from that (mission),” she said. “I want to make sure we’re being effective and have checks and balances in place to gauge its effectiveness.”

Janoski also criticized media reports about board members proposing to disband the agency or shift its focus to fighting new federal clean air rules, saying those were merely generalized comments about what she and others believe are the causes of recent rate hikes.

But advocates for CURB insist the agency still serves a vital role.

Dorothy Barnett, executive director of the Hutchinson-based Climate and Energy Project, an environmental group that promotes clean energy, said she immediately wrote to CURB board members after the Dec. 11 meeting, expressing that group’s concern over the discussion.

“A small business or individual would normally not have the necessary financial resources or utility expertise to participate in hearings at the Kansas Corporation Commission,” Barnett said in a Dec. 16 statement. “Without CURB, that important advocate for consumers will be lost.”