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From the Maryland PSC Commission Letter: 

[ *** ] In Order No. 89800, the Commission’s order granting a stay of enforcement of Order No. 89795, pending judicial appeals, the Commission directed SmartEnergy to submit a financial security instrument (bond or letter of credit) in the amount of $2.5 million to secure refunds representing “the status quo ante” under the Proposed Order – which applied only to the Complaint Period, from February 2017 through May 10, 2019. In Order No. 90515, the Commission’s Order on Rehearing and Establishing Pre-Compliance Directives, the Commission noted that “[w]hile the magnitude to SmartEnergy’s total refund obligation is unknown at this time, it is significantly more than $2.5 million.”2 However, the Commission denied OPC’s request to increase SmartEnergy’s appeal bond to $6.5 million, just over the amount asserted by SmartEnergy in its pleadings before the Circuit Court for Montgomery County. At present, the Commission’s Staff (“Staff”) and OPC respectively assert that SmartEnergy’s customer refund obligation now ranges from $18 to $20 million.

While the Commission continues to take OPC’s request to call SmartEnergy’s appeal bond under advisement, SmartEnergy is hereby directed to submit within three business days the total amount of customer refunds owed in order to satisfy its refund obligation under Order No. 89795, as well as the support for such amount. In addition, SmartEnergy shall confirm in that filing its intention to satisfy this obligation, and how it intends to do so. Should SmartEnergy intend to surrender the proceeds of its appeal bond as partial satisfaction of its refund obligation it shall so state and shall direct its surety to remit said funds to the Commission forthwith. [ *** ]

From SmartEnergy Response (See: ML# 309291): 

[ *** ] First, the Commission directed SmartEnergy to provide “the total amount of customer refunds owed in order to satisfy its refund obligation under Order No. 89795, as well as the support for such amount.” To clear up confusion and to clarify the record, on March 22, 2024 – over a month ago – SmartEnergy produced to the Office of People’s Council and Commission Staff an Excel spreadsheet indicating the potential refund amount. SmartEnergy filed the same spreadsheet with the Commission. OPC, however, mistakenly represented to the Commission before and during the April 23, 2024, Administrative Meeting that SmartEnergy had not provided the amount. Just as the Commission directed, the March 22, 2024, spreadsheet includes re-rate calculations for every bill SmartEnergy sent to every one of its Maryland customers since it began selling renewable energy in Maryland in 2017. The spreadsheet included two tabs: one for the complaint period (February 2017 through May 2019) and one for the post-complaint period. Together, the two tabs total approximately 646,000 rows because: (1) that is the total number of monthly invoices that SmartEnergy sent to its Maryland customers; and (2) that is the information that the Commission directed SmartEnergy to file. The spreadsheet is also sortable by customer, date, utility, etc. All OPC has to do is sum all rows in Column H on the tab titled “RERATE AMOUNT” to see that the total potential refund obligation is approximately $15.97 million. The spreadsheet includes all underlying data on which SmartEnergy relied to calculate that amount, consistent with how the Commission directed SmartEnergy to calculate it.

Second, SmartEnergy intends to satisfy its refund obligation as much as its balance sheet will allow. As SmartEnergy stated in its March 22, 2024, filing with the Commission, “[a]ssuming the Court’s opinion is not modified, and after the mandate is issued, SmartEnergy would welcome rational and fair-minded discussions with Commission Staff and OPC to arrive upon refund and civil penalty amounts that SmartEnergy is able to pay.” To that end, SmartEnergy reached out to Staff and OPC after the mandate was issued to coordinate a meeting. The Commission’s April 23, 2024, letter order encouraged the parties to meet to resolve pending compliance issues, which SmartEnergy appreciates, and a meeting with Staff and OPC has since been scheduled for May 1, 2024, at the Commission. The progress of those discussions will likely dictate how SmartEnergy intends to apply the appeal bond proceeds towards its refund obligation. To this end, SmartEnergy is consulting with its financial and other legal advisors to determine how this might be best accomplished. It plans to discuss this matter with Staff and OPC at the earliest opportunity. 

Third, the Commission directed the parties, jointly, or Staff, to file biweekly status reports regarding the parties’ progress in resolving compliance issues. SmartEnergy will participate in those reports and will discuss the substance of the first report at the May 1, 2024, meeting.