Update: This week OMAEG jointly filed merit briefs in the two appeals before the Supreme Court of Ohio regarding DP&L’s ESP I and ESP II cases. In the ESP II case, the Supreme Court of Ohio reversed the PUCO’s authorization of the Service Stability Rider (SSR) contained in DP&L’s ESP II on grounds that it was an unlawful collection of transition revenue. The Court found that these costs were no longer recoverable under Ohio law. While ESP II was still in effect, but before the PUCO could issue an order modifying the ESP II to remove the SSR, DP&L requested approval to withdraw its ESP II and revert back to its ESP I. DP&L also requested to revive the expired Rate Stability Charge (RSC) and continue the two Transmission Cost Recovery Riders (TCRR) and certain aspects of the competitive bidding process that were exclusive to ESP II. It its merit brief, OMAEG argued that without a PUCO modification of ESP II, DP&L had no legal authority to withdraw its ESP II and the PUCO’s approval of DP&L’s request to withdraw its ESP II was a violation of Ohio law.

In the ESP I case, OMAEG argued that the PUCO had no authority to authorize DP&L to reinstate the RSC after the PUCO approved a settlement that expressly called for the RSC to terminate on December 31, 2012. OMAEG also asserted that the RSC was a collection of transition revenue just like the SSR that the Court had recently struck down as being unlawful. Further, OMAEG argued that Ohio law was clear and prohibited DP&L from reverting back to ESP I, reviving the terminated RSC, and carrying over the TCRR and competitive bidding process provisions that were exclusive to ESP II, thereby creating a hybrid of ESP I and ESP II. The PUCO and DP&L have until June 14^th to file their responsive briefs. OMAEG and the other appellants will file reply briefs thereafter.