Commitments and Contingencies | Note 7— Commitments and Contingencies Legal Proceedings We are a party to various claims and legal proceedings arising out of the normal course of our business. We regularly analyze this information, and provide accruals for any liabilities, in accordance with the guidelines presented in the ASC on accounting for contingencies. In the opinion of management, it is not probable, given the company’s defenses, that the ultimate outcome of these claims and lawsuits will have a material adverse effect upon our financial condition, or results of operations or cash flows. Proceedings in connection with the pending merger with Liberty Central On March 24, 2016, a purported shareholder of Empire filed a complaint styled as a class action lawsuit in the District Court for the 3rd Judicial District, in Shawnee County, Kansas. The complaint alleges that Empire’s Board of Directors breached its fiduciary duties in agreeing to the Merger Agreement by, among other things, conducting an inadequate sales process and failing to obtain adequate consideration, having an interest in completing the Merger, and failing to make adequate disclosures in the proxy statement. The complaint seeks various relief, including an injunction against the Merger. The complaint also alleges that Empire, APUC, Liberty Central and Merger Sub aided and abetted such alleged breaches. The outcome of the lawsuit cannot be predicted with any certainty. A preliminary injunction could delay or jeopardize the completion of the Merger, and an adverse judgment granting permanent injunctive relief could indefinitely enjoin completion of the Merger. All of the defendants believe that the claims asserted against them in the lawsuit are without merit. Coal, Natural Gas and Transportation Contracts The following table sets forth our firm physical gas, coal and transportation contracts for the periods indicated as of March 31, 2016 (in millions). Firm physical gas and transportation contracts Coal and coal transportation contracts April 1, 2016 through December 31, 2016 $ $ January 1, 2017 through December 31, 2018 January 1, 2019 through December 31, 2020 January 1, 2021 and beyond — We have entered into long and short-term agreements to purchase coal and natural gas for our energy supply and natural gas operations. Under these contracts, the natural gas supplies are divided into firm physical commitments and derivatives that are used to hedge future purchases. The firm physical gas and transportation commitments are detailed in the table above. We have coal supply agreements and transportation contracts in place to provide for the delivery of coal to the plants. These contracts are written with Force Majeure clauses that enable us to reduce tonnages or cease shipments under certain circumstances or events. These include mechanical or electrical maintenance items, acts of God, war or insurrection, strikes, weather and other disrupting events. This reduces the risk we have for not taking the minimum requirements of fuel under the contracts. The minimum requirements for our coal and coal transportation contracts as of March 31, 2016, are detailed in the table above. Purchased Power We have three purchased power agreements. The Plum Point Energy Station (Plum Point) is a 670-megawatt, coal-fired generating facility near Osceola, Arkansas. We own, through an undivided interest, 50 megawatts of the unit’s capacity. We also have a long-term agreement for the purchase of an additional 50 megawatts of capacity from Plum Point. Commitments under this agreement are approximately $275.1 million through August 31, 2039, the end date of the agreement. We have a long-term purchased power agreement, which expires in 2028, with Cloud County Windfarm, LLC, owned by EDP Renewables North America LLC, Houston, Texas to purchase the energy generated at the approximately 105-megawatt Phase 1 Meridian Way Wind Farm located in Cloud County, Kansas. Annual payments are contingent upon output of the facility and can range from zero to a maximum of approximately $14.6 million based on a 20-year average cost. We also have a long-term purchased power agreement, which expires in 2020, with Elk River Windfarm, LLC, owned by IBERDROLA RENEWABLES, Inc., to purchase the energy generated at the 150-megawatt Elk River Windfarm located in Butler County, Kansas. Annual payments are contingent upon output of the facility and can range from zero to a maximum of approximately $16.9 million based on a 20-year average cost. We do not own any portion of these windfarms. Payments for these agreements are recorded as purchased power expenses, and, because of the contingent nature of these payments, are not included in our operating lease obligations. New Construction In April 2016 we completed the conversion of Riverton Unit 12 from a simple cycle combustion turbine to a combined cycle unit. The conversion included the installation of a heat recovery steam generator (HRSG), steam turbine generator, auxiliary boiler, cooling tower, and other auxiliary equipment. Construction costs through March 31, 2016 were $163.4 million for the project to date, excluding AFUDC. Final cost is estimated to range from $165 million to $175 million, excluding AFUDC. This amount was included in our five-year capital expenditure plan. See “Environmental Matters” below for more information. Leases We have purchased power agreements with Cloud County Windfarm, LLC and Elk River Windfarm, LLC, which are considered operating leases for GAAP purposes. Details of these agreements are disclosed in the Purchased Power section of this note. We also currently have short-term operating leases for two unit trains to meet coal delivery demands, for garage and office facilities for our electric segment and for one office facility related to our gas segment. In addition, we have capital leases for certain office equipment and 108 railcars to provide coal delivery for our ownership and purchased power agreement shares of the Plum Point generating facility. The gross amount of assets recorded under capital leases total $5.3 million at March 31, 2016. Environmental Matters We are subject to various federal, state, and local laws and regulations with respect to air and water quality and with respect to hazardous and toxic materials and hazardous and other wastes, including their identification, transportation, disposal, record-keeping and reporting, as well as remediation of contaminated sites and other environmental matters. We believe that our operations are in material compliance with present environmental laws and regulations. While we are not in a position to accurately estimate compliance costs for any new requirements, we expect these costs to be material, although recoverable in rates. Compliance Plan In order to comply with current and forthcoming environmental regulations, we implemented our compliance plan and strategy (2013 Compliance Plan), which largely followed our Integrated Resource Plan (IRP) filed with the MPSC in mid-2013. On April 1, 2016, we filed our updated IRP, reflecting the completion of our 2013 Compliance Plan. The Mercury Air Toxic Standards (MATS) and the Clean Air Interstate Rule (CAIR), replaced by the Cross State Air Pollution Rule (CSAPR), are the drivers behind our Compliance Plan and its implementation schedule. We anticipate compliance costs associated with the MATS, CAIR and CSAPR regulations to continue to be recoverable in our rates. The following list summarizes the most significant environmental regulations affecting our operations: Regulations Air Emissions - NOx and SO2 CAIR (Clean Air Interstate Rule) CSAPR (Cross State Air Pollution Rule) MATS (Mercury Air Toxic Standards) NAAQS (National Ambient Air Quality Standards) Greenhouse Gases (GHGs) — CO 2 Surface Impoundments Coal Ash Impoundments: Asbury Power Plant Riverton (capped and closed in 2014 as industrial (coal combustion waste) landfill) Water Discharges MATS : In June 2015, the U.S. Supreme Court remanded the MATS back to the D.C. Circuit Court, holding that the EPA must consider cost (including cost of compliance) before deciding whether a regulation is appropriate and necessary. The court noted that it will be up to the EPA to decide within the limits of reasonable interpretation how to account for cost. The EPA’s determination claimed that considering cost does not alter the agency’s conclusion that it is appropriate and necessary to regulate coal and oil-fired electric utility steam generating units (EGUs) under the regulation. The U.S. Court of Appeals rejected challenges to the MATS in December 2015 and the MATS remains in effect. The final Technical Corrections Rule was signed March 17, 2016. Greenhouse Gases : On August 3, 2015, the EPA released the final rule for limiting carbon emissions from existing power plants. The “Clean Power Plan” (CPP) requires a 32% carbon emission reduction from 2005 baseline levels by 2030 and requires fossil fuel-fired power plants across the nation, including those in Empire’s fleet, to meet state-specific goals to lower carbon levels. States will choose between two plan types to meet their goals: an emission standards plan which includes source-specific requirements impacting affected power plants or a state measures plan which includes a mixture of measures implemented by the state. On February 9, 2016, the Supreme Court ordered a stay on the CPP. Twenty-seven states and numerous industry groups have challenged the CPP’s legality in the D.C. Circuit. The stay will remain in effect until the court resolves the legal challenges to the CPP and either the Supreme Court decides not to review the D.C. Circuit’s decision or the Supreme Court issues its own opinion. Other than the cancellation of the initial submittal deadline this September, the EPA has not made any definitive statements regarding whether CPP timelines may change under the stay. The ultimate cost of compliance cannot be determined at this time because of the uncertainties regarding the final outcome of the GHG regulations, including the legal challenges thereto, and the compliance methods yet to be chosen by the jurisdictions in which we operate. In any case, we expect the cost of complying with any such regulations to be recoverable in our rates. Surface Impoundments : On September 30, 2015, the EPA finalized a revision of the Clean Water Act (CWA) Steam Electric Effluent Limitation Guidelines (ELGs) for coal-fired power plants. The new rule sets technology-based ELGs based on the nature of the pollutants being discharged and the facilities involved. As published, beginning in November 2018, the EPA and states would incorporate the new standards into all wastewater discharge permits, including permits for coal ash impoundments. We do not have sufficient information at this time to estimate additional costs at each facility that will result from the new standards to be in effect no later than December 2023. Effective October 19, 2015, the EPA established a final rule to regulate the disposal of coal combustion residuals (CCRs) as a non-hazardous solid waste under subtitle D of the Resource Conservation and Recovery Act (RCRA). We expect compliance with both the CCR and ELG rule to result in the need to construct a new landfill and the conversion of existing bottom ash handling from a wet to a dry system at a potential cost of up to $15 million at our Asbury Power Plant. We expect resulting costs to be recoverable in our rates. Final closure of the existing ash impoundment, for which an asset retirement obligation of $5.4 million has been recorded, is anticipated after the new landfill is operational. Separately, an asset retirement obligation of $4.4 million has been recorded for our interest in the coal ash impoundment at the Iatan Generating Station. On February 1, 2016, a construction permit application was submitted to the Missouri Department of Natural Resources’ Solid Waste Management Program (SWMP) for a new utility waste landfill adjacent to the Asbury plant. The application has been determined to be complete and a technical review by the SWMP is in progress. Approval of the final construction permit for the CCR waste landfill is expected by February 2017. Water Discharges : We operate under the Kansas and Missouri Water Pollution Plans pursuant to the Federal Clean Water Act (CWA). Our plants are in material compliance with applicable regulations and have received all necessary discharge permits. The EPA final rule under the CWA Section 316(b) for existing cooling water intake structures became effective on October 14, 2014. An industry coalition has filed an appeal of the rule in the Fifth Circuit and additional court challenges are expected. We expect the regulations to have no future impact at Riverton as the new intake structure design and installed cooling tower, as part of the Unit 12 conversion, meets the regulatory requirement for aquatic life protections. Impacts at Iatan 1 could range from flow velocity reductions or traveling screen modifications for fish handling to installation of a closed cycle cooling tower retrofit. Iatan Unit 2 and Plum Point Unit 1 are covered by the regulation, but were constructed with cooling towers, the proposed Best Technology Available. We expect them to be unaffected or minimally affected by the final rule. Renewable Energy The Clean Energy Initiative (Proposition C) requires Empire and other investor-owned utilities in Missouri to generate or purchase electricity from renewable energy sources, such as solar, wind, biomass and hydro power, or purchase Renewable Energy Credits (RECs), in amounts equal to at least 5% of retail sales in 2014-2017, at least 10% in 2018-2020 and at least 15% by 2021. We are currently in compliance with this regulatory requirement as a result of generation from our Ozark Beach Hydroelectric Project and purchased power agreements previously mentioned with Cloud County Windfarm, LLC and Elk River Windfarm, LLC. Proposition C also requires that 2% of the energy from renewable energy sources must be solar. On May 6, 2015, the MPSC approved tariffs we filed on May 5, 2015 to establish solar rebate payment procedures and revise our net metering tariffs to accommodate the payment of solar rebates. As of March 31, 2016, we had processed 467 solar rebate applications resulting in solar rebate-related costs totaling approximately $6.2 million under the new tariff. We have recorded the $6.2 million as a regulatory asset (See Note 3 — Regulatory Matters). The law provides a number of methods that may be utilized to recover the associated expenses. We expect any costs to be recoverable in rates. Legislation was recently adopted that altered the Kansas renewable portfolio standard (RPS), ending all mandatory requirements in 2015. The mandate, which required 20% of our Kansas retail customer peak capacity requirements to be sourced from renewables by 2020, has been changed to a voluntary goal. We are currently in compliance as a result of purchased power agreements with Cloud County Windfarm, LLC and Elk River Windfarm, LLC. |