# D004 Thesis — UFEEPA findings as (10)(A) purposes ## Claim Order No. 9 in Docket 24-072-U is a Commission approval order entered 2025-04-18 that does two things at once, whether or not it labels itself this way: it grants a Certificate of Environmental Compatibility and Public Need under § 23-3-201 et seq. (and the closely tied UFEEPA § 23-18-501 et seq.) — squarely inside one of the four approval pathways enumerated in § 23-4-1303(10)(A)'s chapeau — and it makes substantive, on-the-record findings that LC5 is needed to preserve EAL's reliable peaking capacity and to maintain adequate dispatchable generation after the federal-consent-decree-mandated 2027 retirement of LC4. Those findings *are* findings on § 23-4-1303(10)(A)(ii) and (10)(A)(iv) in everything but caption, and the statute requires nothing more. Combined with the verifiable, undisputed satisfaction of every prong of § 23-4-1304(w)'s three-condition recovery-eligibility test, Lake Catherine Unit 5 qualifies as a Strategic Investment eligible for GAJA Rider recovery without an additional, ritualistic "Strategic Investment designation" finding the statute does not require and the General Assembly did not write. ## Argument **The (w) recovery-eligibility test is satisfied condition-by-condition; nothing in the statute requires more.** Section 23-4-1304(w), enacted by Act 373 of 2025, is the Legislature's chosen vehicle for handling resources whose CECPN applications were already pending when the new Strategic Investment framework took effect. It supplies a three-element test, conjunctive but exhaustive: (1) the costs are not otherwise included in pre-effective-date rates; (2) the utility had an application pending before the effective date filed for approval in one of four categorical buckets — including § 23-3-201 et seq. CECPN and UFEEPA § 23-18-501 et seq. CECPN; and (3) the Commission enters an order after January 1, 2025, approving such a pre-Act application in one of those same categorical buckets (primary public record, [Act 373 archive](../../../web%20archive/2026-05-24/arkleg.state.ar.us/act-373-of-2025.md)). For Ironwood, every element is verifiably met. The costs are not pre-included — Ironwood is brand-new generation not yet in service and not in any pre-Act-373 base rate (it will not commercially operate until 2028 Q4; see [[Ironwood REDACTED Application]]). The CECPN application was filed in [[docket-24-072-u-ironwood-2026-05-22/_overview|Docket 24-072-U]] on **November 1, 2024**, well before Act 373's effective date in March 2025 — undisputed even by Staff (see [[Palmer Rebuttal on Ironwood]] at p. 5: "Mr. Herring agrees that all three of EAL's resources, including Ironwood, meet one of these approval criteria"). And the Commission entered Order No. 9 approving that pending CECPN application on **April 18, 2025** — squarely after January 1, 2025, and squarely within the (w)(3)(B)–(C) categorical buckets. The (w) test, on its face, is met. **The (10)(A) chapeau requires Commission approval under one of four enumerated approval pathways — Order No. 9 is exactly that.** Section 23-4-1303(10)(A) defines Strategic Investments as investments "approved by the Arkansas Public Service Commission under § 23-3-201 et seq., the Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq., or a notice under § 23-18-104 or as otherwise stated in subdivision (10)(B) of this section" (primary public record, [Act 373 archive](../../../web%20archive/2026-05-24/arkleg.state.ar.us/act-373-of-2025.md)). The Legislature gave the Commission a closed list of four approval pathways. Order No. 9's ordering paragraph 1 expressly grants Ironwood a Certificate of Environmental Compatibility and Public Need — issued under UFEEPA, with its analytical scaffolding running through § 23-18-519(b)'s seven siting factors (see [[docket-24-072-u-order-9-2026-05-24/_overview|Ironwood Order No. 9 CECPN Grant]]). That is the second enumerated pathway, hit directly. The text does not say "approved as a Strategic Investment under § 23-3-201 et seq." It says "approved by the Commission under § 23-3-201 et seq." (or the other three pathways). The grammatical object of the approval is the project — the CECPN — not a label. The Legislature knew how to write a magic-words requirement if it wanted one; it did not. **Order No. 9's substantive findings on reliability and dispatchable generation satisfy (10)(A)(ii) and (10)(A)(iv) directly, on the merits.** The chapeau's "to:" clause introduces four purposes, of which any one will do. The Commission's substantive findings in Order No. 9 (pp. 25-27) are explicit and load-bearing. On reliability: LC4 is "[EAL's] only reliable peaking resource," and "ratepayers in the EAL footprint" will be left "without its only reliable peaking resource" upon LC4's 2027 deactivation absent LC5 (Order No. 9 p. 25). That is a finding that LC5 is needed to "maintain and improve the provision of reliable electric utility service" — the precise language of § 23-4-1303(10)(A)(ii). On dispatchable generation adequacy: "it is undoubtedly certain from the evidence presented in this Docket that EAL will need to replace LC4's capacity with a dispatchable-type resource" (Order No. 9 p. 25); modeling identified a combustion turbine as "the optimal technology for EAL's next dispatchable generation" (Order No. 9 p. 27); and "even without the IRP evidence, the undersigned finds that EAL will have an immediate need for a peaking resource as soon as LC4 is retired or no longer in service" (Order No. 9 p. 26). That is a finding that LC5 is needed to "[e]nsure that electric utilities maintain adequate dispatchable generation resources to support reliable service" — the precise language of § 23-4-1303(10)(A)(iv). Two of the four enumerated purposes are met substantively, on the record, with verbatim factual findings. The statute requires that the approval be "to" support one of the four purposes. Order No. 9's approval is plainly "to" support reliability and dispatchable-generation adequacy: those are the very findings the order makes in support of the grant. The grant is for those purposes. The chapeau is satisfied. **The canon of construction forecloses any magic-words requirement.** Statutes mean what they say, and what § 23-4-1303(10)(A) says is "approved … under [pathway], to [purpose]." Nothing in the text requires the order to recite the words "Strategic Investment." Nothing requires the order to cite § 23-4-1303 or § 23-4-1304. Nothing requires a separate "designation" docket or finding. Reading such requirements into the statute would import procedural ceremony the Legislature could trivially have written but did not. The General Assembly knew how to draft a magic-words requirement when it wanted one: § 23-4-1304(c)'s annual update procedures, for instance, set out detailed filing requirements; § 23-4-1304(w) sets out a precise three-condition test. The chapeau of (10)(A) does neither. The Commission's job under (10)(A) is substantive: did the approval, on its merits, support one of the four enumerated public-interest purposes? For Ironwood, the answer is on the face of Order No. 9, twice over. **The "approval order doesn't say 'Strategic Investment'" objection misreads § 23-4-1304(w) entirely.** Section (w) was designed precisely for the situation Ironwood occupies: a resource whose CECPN application was pending under the *prior* statutory regime, on which the Commission rules under that prior regime, but which the Legislature wishes to make rider-recovery-eligible as the regimes transition. Of *course* a Commission order entered on a pre-Act-373 application using pre-Act-373 analytical frameworks will not use post-Act-373 vocabulary. That is the point of (w): the Legislature understood there would be a transition window in which CECPN orders would not use Strategic Investment language, and built a three-condition bridge to carry such orders into the new framework. If the chapeau required the order itself to recite "Strategic Investment," (w) would be a dead letter — there would be no pre-Act order that could ever qualify. Statutes are not to be read to nullify themselves. The only coherent reading is that (w) makes a qualifying pre-Act approval order (CECPN, UFEEPA, or § 23-18-104) eligible-conferring on its own terms, with the (10)(A) substantive purposes satisfied by whatever findings on reliability, economic development, nuclear life extension, or dispatchable generation the approval order in fact contains. Order No. 9 contains exactly the findings (10)(A)(ii) and (iv) call for. **The policy stakes confirm the textual reading.** Section 23-4-1304(f)(1) provides that "[a]t the election of the investor-owned electric utility or the investor-owned natural gas utility, strategic investments *shall* be recovered through the rider" (primary public record, [Act 373 archive](../../../web%20archive/2026-05-24/arkleg.state.ar.us/act-373-of-2025.md), emphasis added). EAL made that election in [[docket-24-072-u-ironwood-2026-05-22/_overview|Docket 24-072-U]] by filing a Notice of Intent to Include in GAJA Rider on September 23, 2025 — and the Commission acknowledged the election on September 24, 2025, by directing EAL to provide bill-impact calculations for Ironwood inclusion in Docket 25-049-TF Order No. 4 (see [[Palmer Rebuttal on Ironwood]] at p. 7). The Commission has already treated Ironwood as included. Staff's reading would now have the Commission turn around and exclude a $33.9M generation resource — a 446-MW dispatchable replacement for a 1970-vintage peaker required to retire by federal consent decree — not on the merits, but on a procedural technicality the statute does not impose. The Commission would be denying ratepayers the bill-smoothing benefit Act 373 was designed to create, on a resource it has already substantively found to be needed for reliability. The statute does not require that result; it forbids it. ## Evidence - **§ 23-4-1303(10)(A) chapeau (Tier 2):** "'Strategic investments' means investments, either construction or purchase, and associated operating expenses made by a [an] electric public utility or natural gas public utility, **and approved by the Arkansas Public Service Commission under § 23-3-201 et seq., the Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq., or a notice under § 23-18-104 or as otherwise stated in subdivision (10)(B) of this section**, to: … (ii) Maintain and improve the provision of reliable electric utility service … (iv) Ensure that electric utilities maintain adequate dispatchable generation resources to support reliable service…" (primary public record, [Act 373 archive](../../../web%20archive/2026-05-24/arkleg.state.ar.us/act-373-of-2025.md)). - **§ 23-4-1304(w) three-condition transition test (Tier 2):** "An expenditure associated with strategic investments for which an application for approval is pending before the commission as of the effective date of this subchapter shall be eligible for recovery through the rider under this subchapter if: (1) The costs are not otherwise included in rates approved by the commission before the effective date of this subchapter; (2) The investor-owned electric utility … has an application pending that was filed before the effective date … for approval: (A) To construct a power generation facility outside of the state under § 23-18-104; (B) To obtain a certificate of environmental compatibility and public need under [UFEEPA], § 23-18-501 et seq.; (C) To obtain a certificate of public convenience and necessity under § 23-3-201 et seq.; or (D) For any other application related to the siting or prudence of the decision to invest in the new strategic investments; **and** (3) The commission enters an order **after January 1, 2025**, approving an application that was filed before the effective date of this subchapter for approval: [same (A)–(D)]" (primary public record, [Act 373 archive](../../../web%20archive/2026-05-24/arkleg.state.ar.us/act-373-of-2025.md)). - **§ 23-4-1304(f)(1) utility-election provision (Tier 2):** "At the election of the investor-owned electric utility or the investor-owned natural gas utility, **strategic investments shall be recovered through the rider**" (primary public record, [Act 373 archive](../../../web%20archive/2026-05-24/arkleg.state.ar.us/act-373-of-2025.md)). - **Order No. 9 reliability finding (Tier 1):** "LC4 will be deactivated in 2027, leaving ratepayers in the EAL footprint without **its only reliable peaking resource**" (Order No. 9 p. 25; see [[docket-24-072-u-order-9-2026-05-24/_overview|Ironwood Order No. 9 CECPN Grant]]). - **Order No. 9 dispatchable-generation finding (Tier 1):** "it is undoubtedly certain from the evidence presented in this Docket that EAL will need to replace LC4's capacity with a dispatchable-type resource" (Order No. 9 p. 25; see [[docket-24-072-u-order-9-2026-05-24/_overview|Ironwood Order No. 9 CECPN Grant]]). - **Order No. 9 dispatchable-technology finding (Tier 1):** combustion turbine identified as "the optimal technology for EAL's next dispatchable generation" (Order No. 9 p. 27; see [[docket-24-072-u-order-9-2026-05-24/_overview|Ironwood Order No. 9 CECPN Grant]]). - **Order No. 9 second-track reliability finding (Tier 1):** "Putting it plainly, even without the IRP evidence, the undersigned finds that EAL will have an immediate need for a peaking resource as soon as LC4 is retired or no longer in service" (Order No. 9 p. 26; see [[docket-24-072-u-order-9-2026-05-24/_overview|Ironwood Order No. 9 CECPN Grant]]). - **Order No. 9 grant (Tier 1):** "EAL is granted a CECPN for the construction and operation of Lake Catherine Unit 5, a 446 MW hydrogen-capable, simple-cycle natural gas combustion turbine in Hot Spring County, Arkansas" (Order No. 9 ordering ¶ 1; see [[docket-24-072-u-order-9-2026-05-24/_overview|Ironwood Order No. 9 CECPN Grant]]). - **Order No. 9 conclusion of law on need (Tier 1):** "The Project as modified herein is needed and will serve the public interest, convenience and necessity" (Order No. 9 Conclusion of Law #19, p. 54; see [[docket-24-072-u-order-9-2026-05-24/_overview|Ironwood Order No. 9 CECPN Grant]]). - **Order No. 9 entry date (Tier 1):** entered 2025-04-18, "about one month after Act 373 of 2025 … was signed (2025-03-20)" — squarely satisfying (w)(3)'s "after January 1, 2025" condition (see [[docket-24-072-u-order-9-2026-05-24/_overview|Ironwood Order No. 9 CECPN Grant]]). - **CECPN application filing date (Tier 1):** Ironwood's CECPN application was filed in Docket 24-072-U on **November 1, 2024** — well before Act 373's enactment, undisputed by Staff (see [[Palmer Rebuttal on Ironwood]] at p. 5; [[docket-24-072-u-ironwood-2026-05-22/_overview|Docket 24-072-U production overview]]). - **Staff concession on approval pathway (Tier 1):** "Mr. Herring agrees that all three of EAL's resources, including Ironwood, meet one of these approval criteria" (i.e., the (10)(A) chapeau approval pathways) (see [[Palmer Rebuttal on Ironwood]] at p. 5). - **EAL's election and Commission's prior recognition (Tier 1):** "EAL designated Ironwood to be included in the GAJA Rider and provided notice to the Commission" via the Notice of Intent to Include in GAJA Rider filed September 23, 2025, in Docket 24-072-U; "[t]he Commission recognized EAL's designation in Docket No. 25-049-TF when it directed EAL on September 24, 2025, to provide bill impacts of the inclusion of Ironwood in the GAJA Rider" (see [[Palmer Rebuttal on Ironwood]] at pp. 5, 7). - **Resource scale and replacement context (Tier 1):** LC5 is a "446 MW hydrogen-capable, simple-cycle natural gas combustion turbine" replacing the 522 MW LC4 unit (in service since 1970) "required to be deactivated no later than December 31, 2027, consistent with a federal consent decree" (see [[Ironwood REDACTED Application]]). ## Anticipated counterarguments The strongest objection Statement B will press is that Order No. 9, on its face, never uses the term "Strategic Investment," never cites § 23-4-1303 or § 23-4-1304, and analytically runs on UFEEPA's § 23-18-519(b) seven siting factors rather than on the Act 373 chapeau's four purposes — leaving the order's substantive reliability and dispatchable-generation findings, however apt, as UFEEPA findings rather than as the Act 373 (10)(A) findings the Commission must make to confer Strategic Investment status. Statement B will say the chapeau requires not merely that the approval be made under a qualifying pathway, but that the approval be issued *as* a Strategic Investment designation — and that the Commission's silence on the (10)(A) framework in Order No. 9 means no designation was made. A related objection: the Commission's own subsequent framing in Order No. 6 of 26-008-TF refers to "assuming Commission approval of the most recent Annual Update filing," language Staff will read as the Commission itself acknowledging that the substantive designation has not yet occurred. Statement B will argue that if the Commission believed Order No. 9 had already designated Ironwood, no such "assuming" qualifier would be needed. And finally: Statement B will argue that reading the chapeau as Statement A reads it — substance over form, with any qualifying-pathway approval order containing any (10)(A)-aligned finding counting as a Strategic Investment designation — would collapse the careful procedural structure Act 373 built, converting every UFEEPA CECPN order into a rider-recovery-eligible designation by default and reading the chapeau's "to: [four purposes]" clause out of meaningful operation. The antithesis will engage these arguments; this phase declines to.