Exelon Corp. (NYSE:EXC)
Q2 2009 Earnings Call
July 24, 2009; 11:00 am ET
John Rowe - Chairman & Chief Executive Officer
Matthew Hilzinger - Senior Vice President & Chief Financial Officer
Ken Cornew - Senior Vice President
Anne Pramaggiore - President & Chief Operating Officer of ComEd
Denis O’Brien - Executive Vice President; President & Chief Executive Officer of PECO
Tom Terry - Vice President and General Tax Officer
Duane DesParte - Vice President of Corporate Controller
Frank Clark - Chairman & Chief Executive Officer of ComEd
Karie Anderson - Vice President of Investor Relations
Hugh Wynne - Sanford Bernstein
Greg Gordon - Morgan Stanley
Michael Lapides - Goldman Sachs
Paul Fremont - Jefferies
Paul Patterson - Glenrock
Annie Tsao - AllianceBernstein
Good morning. My name is Jackie and I will be your conference operator today. At this time, I would like to welcome everyone to the second quarter earnings conference call. All lines have been placed on mute to prevent any background noise. After the speaker’s remarks, there will be a question-and-answer session. (Operator Instructions)
I would now like to turn the call over to Karie Anderson, Vice President of Investor Relations. Please go ahead, ma’am.
Good morning. Welcome to Exelon second quarter 2009 earnings review and conference call update. Thank you for joining us today. We issued our earnings release this morning, if you haven’t received it, the release is available on the Exelon website at www.exeloncorp.com or you can call Martha Chavez at 312-394-4069 and she will fax or e-mail the release to you.
Before we begin today’s discussion, let me remind you that the earnings release and other matters we discuss in today’s call contain forward-looking statements and estimates that are subject to various risks and uncertainties, as well as adjusted non-GAAP operating earnings.
Please refer to today’s 8-K or our other filings for discussions of factors that may cause results to differ from management’s projections, forecasts and expectations and for a reconciliation of operating to GAAP earnings.
Leading the call today are John Rowe, Exelon’s Chairman and Chief Executive Officer and Matthew Hilzinger, Exelon’s Senior Vice President and Chief Financial Officer. They are joined by other members of Exelon’s senior management team who will be available to answer your questions. We have scheduled 60 minutes for this call. I will now turn the call over to John Rowe, Exelon’s CEO.
Thank you, Karie. Good morning, everyone. Well, as you all know, it has been a turbulent six months between the economy, the weather and the continuation and now termination of our effort to acquire NRG. With all of that, we turned in what we think is a very good quarter.
You have seen our earnings in our release this morning. We have kept our commitment to reduce our operating and maintenance spend, we’re being disciplined we’re both our costs and the deployment of our cash and capital. I am very pleased that we released our one-year anniversary progress report on Exelon 2020.
It announced that we are more than one-third of the way towards our 2020 goal to reduce, offset or displace our entire 2001 carbon footprint. I really believe this is something no other utility has done and most cannot do and I’m very proud of it and I would refer you to look at it because it tells you an awful lot about what the economic ways are to reduce carbon footprints and what the most expensive ways are to do so.
In this quarter, we announced our plans to add between 1300 and 1500 megawatts of nuclear uprates to our existing nuclear platform, the equivalent of a nuclear unit at about half the price. In Washington, we saw continued progress on climate change legislation. Let me begin by addressing the termination of the NRG acquisition effort. We made our case to NRG shareholders through most of a nine month period, they were supportive at the end they did not back our proposals.
I still believe this could have been a very good deal with a lot of value for all parties, but we simply couldn’t get it done. When we made our bid for NRG, we thought Exelon was undervalued and NRG even more undervalued. Based on the favorable results we had in the first two tender periods, NRG shareholders agreed with our assessment at that time.
Now, NRG shareholders value NRG more highly than they did before and more highly than we do now. Like any transaction, we could have completed this if we had been willing to pay the price, but we are about value. We have promised you that we will stay about value and I am not willing now and will not be willing in the future to sacrifice the value inherent in Exelon’s own prospects.
You have asked yourself and we have asked ourselves where does Exelon go from here? When we announced our pursuit of NRG, we indicated that we saw it as a unique opportunity, one that we had evaluated carefully against almost every other M&A partner. At that time and now, no other opportunity appeared as good to us.
There are market power issues with most of the other IPPs, price issues with some and regulatory issues at the present time in attempting to merge with most regulated utilities. So, our view is very simple we have no near term acquisition plans. There is no secret teed up and at the present time, we believe investing in our own assets and operations is the best way to spend our money.
Now in the second quarter, we kept our focus on our vision. We keep trying to become the best group of electric generation and electric and gas delivery companies in the United States. We are aware that other good utilities are trying to do the same thing, but we believe we are in a very special position as we seek to claim that stature.
As you saw in this morning’s release, we reported operating earnings of $1.03 per share for the quarter. Under Chip Pardees leadership, our generation fleet performed exceptionally with a nuclear capacity factor of 93.9% and our fossil team delivered its highest year-to-date availability factor since we began.
Both ComEd and PECO also performed well in the quarter. As a result, we were able to deliver solid earnings despite the headwinds of a continued weak economy and lower demand and frankly, despite weather in June that would make a utility executive’s temperament quite moldy.
Our performance for the first half of 2009 allows me to reaffirm our operating earnings guidance range of $4 to $4.30 per share for 2009. We’ll keep you advised about that again in our third quarter earnings. Matt will take you through the detailed results for the second quarter in a moment. I want to talk a bit about our standalone value. We see the nuclear operating plan as a very attractive growth opportunity.
They allow us to add generation capacity equivalent to a new nuclear unit at about half the cost and with substantially less risk. Unlike building an all new reactor, the nuclear uprates can be done with a phased approach, which gives us the option to delay the more expensive extended power uprates until power prices fully support them. We face substantially lower execution risk than with a new nuclear unit on either a green or a brownfield site.
Over the past decade, we have already added the equivalent of a new unit to our existing fleet; we know how to do this. Our recent decision to pursue an early site permit rather than a construction and operating license for Victoria County reflects the greater risk of new build in our current economy. We are committed to our power uprate plan and we are able to finance it. We believe if our base cases hold, we can maintain our current credit ratings and complete the power uprate plan without issuing new equity.
Our next growth opportunity is the expiration of the power purchase agreement between Exelon Generation and PECO at the end of 2010. The results of last month’s auction for PECO’s residential load were an excellent indicator of the continued strong market for generation’s Mid-Atlantic assets with higher margins expected in 2011 and beyond. It is also evidence of a healthy transition to competitive markets in Pennsylvania, one which we believe will continue to benefit consumers, as well as shareholders.
Power Team will remain an active participant in the coming procurement auctions throughout the Mid-Atlantic region. Third, in the second quarter, Exelon again showed its ability to reduce expenses. As Matt will outline for you, we are on pace to hold our 2009 O&M spending flat to 2008 levels. As you saw from our release last month, we are working even harder on managing our expenses in 2010. The restructuring we announced last month is nearly complete.
This effort, led by Chris Crane, is expected to save $350 million in 2010 from our original planning assumptions, a 3.5% reduction from 2009 levels. While eliminating jobs is always unpleasant, this reorganization is a necessary consequence of the economic and commodity market circumstances we now face.
Fourth, with the passage of the Waxman-Markey legislation in the house, we are closer today than ever before to effective climate change legislation. While the near term outlook in the Senate is not clear, the Senate is making progress on considering its own bill.
We appreciate the efforts of the Senate leadership to look for ways to make the bill more attractive to moderate Democrats and additional Republicans. Betsy Moler and I are working hard with EEI, with the USCAP, with other groups to find the kinds of compromised measures that will bring the effort through the Senate.
Exelon remains the best positioned company in our industry to deal with a carbon constrained world. Our carbon intensity, measured in tons of CO2 per megawatt hour generated, is the lowest of all the generating companies. We are proud of our progress on Exelon 2020. As we said earlier, we don’t believe anybody else can build a plan like this.
We know what components of the plan, like power uprates and energy efficiency, are the cheapest ways to both create value and create lower carbon energy. Exelon 2020 is very important to me personally, because it allows us to lead on a very important global social issue and at the same time add value to you, our shareholders.
Fifth, we are working very hard on developing a business plan for a new transmission company. That effort is being led by Ian McLean, who brings years of experience in power markets and RTOs and Betsy Moler, who as you know, led the FERC’s landmark effort in open access and promoting competitive markets.
New transmission projects have the opportunity to reduce congestion, address pending reliability concerns, facilitate the movement of renewable energy from the upper Midwest and Dakotas through the load centers in Chicago and the South and the East, mitigating oversupply and if done completely, help our Midwest nuclear fleet maintain its baseload value.
There also maybe opportunities to build in the Northeast and Mid-Atlantic to reduce congestion. We will look for opportunities both within and beyond our historic footprint. Investments in transmission will further enhance competitive markets and help stabilize this important aspect of Exelon’s business. By the end of the year, we will be able to discuss with you more particular plans in the transmission area.
Finally, Public Policy in Washington in Harrisburg and in Springfield favors the development of so-called smart grid and smart meter infrastructures. Exelon expects that ComEd and PECO will spend up to $1 billion over the next few years, perhaps more down the road, to build its smart meter infrastructures.
The amount and timing of these investments will depend both on regulatory orders and upon the success of our application for some stimulus money, but because of the strong policy support for these agendas, these also are ways of getting a secure regulatory return.
With that, I simply want to state that we haven’t been ignoring our business at home while we’ve worked on NRG.
We have the pieces in place both to benefit from future improvements in gas markets, from the introduction of carbon markets and from simply building more of the right things in the right places. I believe we will stay situated to give you the kinds of results you have come to expect from us.
With that, I will turn this over to Matt.
Thank you, John and good morning everyone. As John mentioned, we had a very good quarter.
On slide four, I have highlighted my key messages for this morning. I will briefly discuss the key drivers for the quarter and spend the majority of my time providing updates on our hedging strategy and our 2009 outlook, as well as our cost management initiatives. As you can see on slide five, we reported operating earnings of $1.03 per share in the second quarter of 2009 compared with $1.13 in the second quarter of 2008.
Our results reflect higher quarter-over-quarter distribution revenues at ComEd and PECO and reductions in O&M achieved through our cost management initiative. As expected, these favorable results were offset by a decline at Exelon Generation primarily due to two one-time operating income items recognized in the second quarter of 2008.
Turning to Exelon Generation on slide six, Generation’s results were lower quarter-over-quarter largely driven by $0.11 per share of income recognized in 2008 related to proprietary trading gains and the legal settlement of a uranium supply contract.
Exelon Generation also experienced a decline in quarter-over-quarter operating income of $0.04 per share due to higher nuclear fuel costs and unfavorable portfolio and market conditions. Part of the unfavorability and portfolio market conditions relates to decreases in affiliate load served to ComEd and PECO, which I will discuss further in a few moments.
Despite the decline in market conditions from last year, our hedging program has minimized the earnings impact to Generation for the quarter. With respect to costs, Exelon Generation held O&M close to flat in the second quarter of 2009 compared to the prior year, largely offsetting increases in pension and OPEB expenses and inflation with savings achieved through our cost management initiative.
On slide seven, you will see the key drivers of ComEd’s favorable second quarter results. ComEd realized higher quarter-over-quarter distribution revenues of $0.06 per share resulting from the September 2008 distribution rate case order. With respect to costs, ComEd’s cost management initiative resulted in lower quarter-over-quarter O&M expenses of $0.02 per share.
Moving to slide eight, we have outlined the key drivers of PECO’s higher quarter-over-quarter results, including increased distribution revenues of $0.03 per share and lower bad debt expense of $0.05 per share. These increases were partially offset by the scheduled increase in PECO’s CTC amortization, unfavorable weather conditions and declining weather normalized retail deliveries, each of which decreased operating earnings by $0.02 per share.
Excluding the benefit from reduced bad debt expense, PECO’s O&M expenses were flat compared to the second quarter of 2008, as a result of our cost management initiatives. Last month, PECO took the first steps towards transitioning to market-based rates by successfully completing the first of its RFPs to secure generation for 2011, residential delivery.
The purchases, representing about 21% of the electricity needed for PECO’s residential customers, suggest a 9% price increase for the average residential customer beginning in 2011. PECO’s next residential RFP will take place in September 2009 when it will also begin to secure commercial generation supply. Let me briefly touch on the decline in load at ComEd and PECO. Both service territories have continued to experience the effects of a challenging economy on weather-normalized retail deliveries.
On slide nine, ComEd experience a decrease in weather-normalized retail deliveries across all customer classes in the second quarter of 2009 with an average decrease of 4.1%. The large C&I customer class experienced the most significant decline with reduced usage noted across all industries.
Turning to slide 10, PECO also experienced a decline in load across all customer classes. PECO’s load declined an average of 2.6% during the quarter. Similar to ComEd, PECO’s large C&I customer class experienced the most significant decline. The decline in load experienced at both ComEd and PECO in the second quarter of 2009 had the effect of decreasing operating earnings by $0.03 per share.
ComEd and PECO have revised their load forecast for the remainder of 2009. We now project reduced load for the full year of 3% at ComEd and 1.8% at PECO against our prior forecast of approximately 1.3% for ComEd and 1.2% for PECO. Now that I have highlighted the key operating earnings drivers for the quarter, I would like to review the two non-cash items that increased our GAAP earnings by $0.10 per share this quarter, but that we have excluded from non-GAAP operating earnings.
The first issue relates to two tax positions that ComEd took in 1999 related to the disposition of certain assets as a result of the restructuring under Illinois deregulation in 1997. These items, as we have previously disclosed, are referred to as the like-kind exchange and involuntary conversion positions. A year ago, the IRS formally disallowed these positions as we expected, but over the past year, we have been in discussions with IRS appeals about a possible settlement of both issues.
Unfortunately, despite our efforts, we determined during the past quarter that an acceptable settlement with the IRS appeals office is unlikely and that we must now litigate in order to resolve these tax matters. While we recognize the complexity and hazards of this litigation, we believe that we have solid facts to support our positions. As a result, we adjusted our tax reserves to reflect our views of litigation and settlement as required under FIN 48 accounting guidance.
We recognized $0.05 per share of earnings in the second quarter from the reversal of prior reserves, the majority of which was recorded at ComEd. Our 10-Q, to be filed later today, provides further information on the financial implications in the event that we don’t ultimately prevail in this litigation. The second tax issue relates to a non-cash adjustment to our long term deferred tax liabilities primarily at Exelon Generation.
During the second quarter, the PAPUC approved PECO’s electricity procurement plan. Under the procurement plan, Exelon Generation expects to see a higher proportion of total earnings in Pennsylvania and therefore, a lower proportion in Illinois due to the roll-off of the PPA in 2011. The consolidated adjustment of $0.05 per Exelon share this quarter reflects the expected shift in earnings on state income tax rates used to record deferred taxes.
Before moving on to our 2009 outlook, I will cover more of the details around our hedging program. Our complete hedging disclosures, which we committed to update you each quarter, are included in the Appendix and you will see a summary on slide 11 that I will talk about now. Generally speaking, we file a 36-month ratable hedging program. The primary objective of which is to protect the value of our assets even under stress scenarios.
We are largely hedged in 2009, which gives us a high level of confidence in gross margin we will achieve at Generation for the year. We have continued to layer on hedges for 2010 and 2011 and as a result, our potential range for earnings outcomes has narrowed as we move closer to those delivery years. As the largest merchant generator in the country, we hold a strong view that continued hedging is the financially disciplined way to protect the value of our assets.
Our results show that we do it well even in markets where prices are under pressure. Compared to our disclosures in April, the 5% case in our 95% confidence interval shows a flat to increased gross margin for 2010 and 2011 as a result of our continued hedging. Let me direct your attention to 2011 in particular. You will see now that we are hedged at 59% to 62% as compared to the February volumes of 40% to 43% that we shared with you in April.
While this is likely ahead of a purely ratable plan, a portion of the additional hedges we layered on since our last update represents power and natural gas put options, which enable us to mitigate downside market risk while maintaining the potential for upside market appreciation as market prices rebound.
This protects us from lower commodity markets without introducing significant heat rate risk into our portfolio. The 2011 estimated hedged gross margin that can be calculated using the data we have provided is within 1% of the number you would have calculated as of the end of February.
This is in part due to the fact that we have been incrementally hedging in a forward gas environment with market prices around $7 per MMBtu. Our 2011 Mid-Atlantic expected Generation hedge also reflects the supply contracts secured by Exelon Generation at attractive prices in the recent Allegheny and PECO procurement events. These results clearly show the value of are well-positioned, low-cost nuclear fleet.
I will now turn to slide 12 for an update on our 2009 financial outlook. We continue to remain on track for the year and are reaffirming our non-GAAP operating earnings guidance of $4 to $4.30 per share. One item to note, as we discussed in our 8-K issued last week, relates to our first quarter Supreme Court ruling where we recognized $0.06 of earnings per share related to investment tax credits income from 2008 and prior.
On July 15, the Illinois Supreme Court affirmed their ruling, but their ruling was changed to apply only prospectively, effectively disallowing the portion of ITC credits from 2008 and prior. As a result, we expect to recognize this revised decision by the court and reverse $0.06 of earnings in the upcoming third quarter. We have weathered the weak economy very well so far this year.
Our hedging program has protected our earnings and our cash flows in a down market and our cost management initiatives have identified and delivered real savings to help offset higher pension and postretirement costs that we outlined at the beginning of the year. We continue to watch the economy and load reduction carefully and we are mindful that the economy is not yet sustainable in terms of its recovery.
Given our view on the balance of the year and our results thus far, we expect to end the year within our guidance range and we expect the third quarter 2009 operating earnings to range from $0.90 to $1 per share, which includes the expected reversal of the Illinois ITC item I just discussed. With the first half of the year behind us, we have made measurable progress on our cost management initiative.
As outlined on slide 13, we previously committed to keeping O&M expense flat in 2009 and remain on target to do so. In June, we committed to a $350 million reduction in 2010 O&M expense, nearly a 3.5% decline from 2009, which includes our expected installation. The total amount of the savings will be recognized across Exelon with Exelon Generation realizing approximately 60% of the savings, followed by 30% at ComEd and 5% at both PECO and Exelon Corp.
We continue to deliver the strong cash flows that you have come to expect from us. Our latest forecasted cash flow from operations has increased $350 million from our first quarter of 2009 earnings call and $700 million from the original guidance assumptions that we shared with you last fall at EEI. We are now projecting cash from operations of over $5.4 billion this year.
This increase is largely due to the benefits received under the recent economic stimulus plan, reduced O&M and our auction sales. Just to recap, this was a very good quarter for Exelon, we delivered solid results and with that, we would be happy to take your questions.
(Operator Instructions) Your first question comes from Hugh Wynne - Sanford Bernstein.
Hugh Wynne - Sanford Bernstein
I was just looking at the balance sheet and you seem to have some favorable developments here. Shareholders equity is up by about $1.1 billion or 10%. You seem to have paid off about a $0.25 billion of long term debt and your cash balance is very robust at $1.8 billion, maybe $1.5 billion more than you might need to run the company.
You also mentioned you are expecting another $700 million in cash from operations relative to earlier estimates in 2009. So, my question is whether you will consider resuming the value return policy and maybe distribute this excess cash, which is equivalent to about 4% of the market capitalization of Exelon or whether your intention is to accumulate cash or pay down debt in light of a potential reduction in long term earnings power?
I think I find the third answer than either of the formulations you gave us, Hugh. Our plan is to use cash to invest in the system, particularly the nuclear uprate program. Simply put, with earnings that are relatively flat for a couple of years, not a very good time to increase the dividend and with Standard & Poor and the other rating agencies demands for better fund flow from operations to debt coverage to maintain our credit ratings, we need to keep the cash in the business right now.
It has been very clear on the part of the rating agencies that, with Exelon’s earnings coming about three quarters from the power markets and about one quarter from the regulated utilities, with those numbers changing a little bit from year-to-year, the rating agencies think we have different risk characteristics than a normal utility and expect that we have a somewhat stronger balance sheet as a result.
So, while we are very pleased with the way the cash is building up, it doesn’t really give us the opportunity to go back to the share buyback program. So, our plan is to use the cash in the business and make certain the balance sheet keeps us all happy till we have better power markets or carbon prices.
Hugh Wynne - Sanford Bernstein
If I could, are you still anticipating the 36.7% income tax rate for 2009 that you put out in the March Investor Presentation?
Yes, it is about that. I might adjust it slightly because of the ITCs, but that is a good number to use.
Your next question comes from Greg Gordon - Morgan Stanley.
Greg Gordon - Morgan Stanley
As you guys start focusing on I know you are pretty highly hedged for 2010, in terms of the Generation business, but as you do your business planning for ComEd and PECO, what type of load assumptions are you assuming? What type of load are you assuming you are going to see for the balance of this year and what is your base case for 2010?
Matt, do you want to give the total numbers or shall we go directly
I think I noted those in my opening remarks, Greg. I think ComEd is looking for kind of the full year forecast a load deterioration of around 3% and I think PECO was around 1.8% and they can speak to a little bit more about where that is coming. I don’t think we have given formal numbers for 2010, but I think PECO was somewhere around flat and I think ComEd was somewhere around there as well as we kind of looked out to 2010.
So, our view of kind of the economic recovery is we would like to see the recovery kind of take hold here in the second half and we are reflecting that in, how we’re looking at 2010. We’ll continue to watch the second half of the year as we figure out what kind of load drop that we’re going to put in for our 2010 numbers.
There are some rate design characteristics that mitigate the impact of this load drop. I would like, since ComEd has the bigger drop. I’d like to have either Frank or Anne update you on, what is going on in ComEd first and then Denis on what’s going on at PECO.
As Matt indicated, we are looking at about a 3% drop for the year and we’ve seen a bigger drop in the second quarter, but we do our model suggests that the trend starts to turn the other way a little bit in the third and fourth quarter. We do have a couple mitigating circumstances in ComEd.
As John indicated, one of them is that where we’re seeing the largest drop in load in our large customer sector. We also rely primarily on demand and customer charges for our revenue there. So we don’t see the same sort of correlation in revenue that it doesn’t correlate quite as closely to the drop in load. In fact, about 98% of our C&I revenue is either demand or customer charge based. So that helps us on the revenue side.
The other mitigating factor is, when we look at our largest customers, we have a pretty diverse group. The top 25 obviously, we’re manufacturing based here in Illinois, but we have a number of other industries represented in there and we don’t see any customer that represents over 1% of the load within that group or over about 2% of the revenue. So it’s pretty evenly spread and we think that that gives us some protection as we move forward as well.
Denis, would you like to comment on PECO?
Yes, I think Matt got the high level numbers just about right there. As you look below our forecast for the year, which is a 1.8% decrease now, it’s primarily in the large C&I. Our estimate for the end of the year for large C&I is a negative 3.5%. That is driven primarily by the petroleum, pharmaceutical, chemical sectors. So we’re watching that closely. I think we have seen a couple of them knock off their third shifts and do some consolidation of some of their facilities.
The residential has held up pretty well to this point. Although, the second quarter we saw a little bit of a drop and we’re now watching that a little more closely. The summer has been pretty cool here in Philadelphia in June and July, so it has been well down on weather.
Our weather correction doesn’t handle abnormal weather as much as it handles normal whether. So we’re not sure whether a little bit of a decrease in June and July, is all weather related or if there is a little bit of economy there.
My last comment would be, this all started to unfold in terms of the decrease in the fourth quarter of last year. So once you get to the fourth quarter, you are back to this kind of new base level that you are working off of. So at that point, we don’t expect to see as much of a decrease, because we saw it last year. For next year, we’re calling it at this point even, but we are monitoring things closely.
Your next question comes from Michael Lapides - Goldman Sachs.
Michael Lapides - Goldman Sachs
Can you give us an update on your view of long term, three to five year out, power market fundamentals in the Midwest, especially Illinois?
Well, we think that we have a recovery. The power markets return to the kinds of levels that they have been several years back. Obviously, this depends on what you think gas prices will be, as well as other factors. Ken Cornew, would you like to amplify that please?
Sure, Mike. We just had a discussion on demand and obviously, that’s having an impact on power prices at NiHub. We see NiHub prices in the next three to five years hovering from the low to mid 30s around the clock. I think those prices are largely reflecting the current economic situation, the lower demand, obviously, the gas prices that you can see in the market. So I think if there is a recovery and to the extent that recovery is sooner than later, you’ll see some recovery in NiHub prices.
A couple of things I am sure you are thinking about. One is new transmission infrastructure to the extent there is a new transmission infrastructure that comes in place. For example, the backbone transmission lines that PJM is working to put in place that will have upward price pressure on NiHub.
I am sure wind and other fundamental new Generation is something you are thinking about. In this economic environment, we don’t see that wind is economic. We don’t see the transmission infrastructure there in the near term to support a significant amount of wind development. We think it will happen at some level. We think it will happen at an appropriate level when the transmission is there and when energy prices allow for the economics to look reasonable for new generation development.
I think you’re going to also see some testing of value of old Generation. There is old coal-fired and steam generation in the PJM system and to the extent you see market price pressure that we are seeing now, owners have to really evaluate what the long term value of those assets are given load prices and given environmental pressure. So, I think you are seeing a real reflection of load demand and a poor economic situation in current NiHub prices.
Your next question comes from Paul Fremont - Jefferies.
Paul Fremont - Jefferies
The first sort of can you remind us of the dispute with the IRS as to what the dollar amount of the dispute is and whether or not anybody so far has won their case in court on the SILO/LILO cases. The second question is I can understand sort of the negative effect of demand on market heat rates this year. I am not sure I understand why the market heat rates seem to be weaker I guess both in Pennsylvania and in Illinois in the out years.
I would like Ken Cornew to answer the second question first just because we have been talking about power prices and then Tom Terry and I will take the first question.
I think you are seeing lower heat rates sort of for a couple of reasons. First off, the spot market prices are very low and that is driven by low fossil fuel prices, low natural gas prices with much lower demand as you have seen and heard ComEd and PECO talk about.
You are seeing what we see as an excess in supply. So, the forward prices are going to continue to reflect that to the extent people think gas prices don’t recover more quickly, demand doesn’t recover more quickly or retirement of generation doesn’t happen quickly. So, we have long seen this phenomenon of spot prices heavily impacting three to five year prices in the power markets and I think that is a lot of what you are seeing now.
As you can see in our K and you’ll see updated in the Q, the total cash involved, if we were to lose all of every issue with the IRS, is on the order of $1 billion or $1.1 billion and that assumes a complete loss. Tom will give you the associated income statement effect, which is much smaller and there is a partially upsetting issue that I think we have already won at the IRS, which he will also give you.
Then on your question about the courts, well, there are three or four different issues in this can. One is the like-kind exchange where there have been two bad court decisions on different facts. There is a case involving ComEd pending that has been up for decision almost anytime and it hasn’t come down yet.
There are a couple of settlements, which we know about, but don’t know enough details to talk about on more favorable returns, conditions for utilities on several of the other issues. I mean the issues are like-kind exchange, involuntary conversion and the tax treatment of competitive transition charges and the IRS has somewhat different positions on each of the three issues and somewhat different willingness to talk about each of the three issues. Tom, what would you like to add to that?
Regarding the income statement in fact of this, if we were to lose completely, we would take about a $300 million charge from where we are after the second quarter. Beyond that, one of the things we had to do this quarter, because we can’t settle the issue with the IRS and believe that we are going to have to litigate the issues to conclusion, or at least the like-kind exchange issue
We had to make a call as to whether we believed we would win or lose and we came down on the side that we believe we had the better side of the arguments. That should not be taken to mean that it is a sure thing or even particularly close to a sure thing. It’s that the nature of accounting forces us a bit to a binary conclusion there and that is the reason you see the income tick up in the second quarter.
Paul Fremont - Jefferies
Just as a follow up, the two unfavorable court decisions, were those the court decisions involving financial institutions leasing portfolios?
Yes, one of them was BB&T. The other one was AWG.
I want to add one thing. I think John talked about worst-case scenario; it’s a $1.1 billion cash outflow. There is about, I think, $300 million related to a tax issue that we have settled with the IRS that we can’t claim that cash until these tax years and these issues are settled. So, you ought to think about kind of worst-case more around $800 million or $700 million and not the $1.1 billion from a true cash kind of outflow statement.
Your next question comes from Paul Patterson - Glenrock.
Paul Patterson - Glenrock
As I remember the net income impact on the first quarter 10-Q was $205 million and $196 million, $205 million after tax associated with interest and $196 million I guess associated with penalties and what have you.
Could you guys sort of give us an update on that and how much of that would be sort of ongoing with this $300 million that you are mentioning and again, this is obviously a worst-case scenario, but just what that exposure would be on the net income?
We would be happy to follow up with you and Tom on that question offline and make sure we get that in the Q filed today.
I think just because it is big and squishy, can we tack down this question so everybody knows what he was asking about because those numbers don’t correlate in my head. So Duane, can you clarify this?
Yes, the numbers didn’t ring a bell with me either. Could you go through that one more time?
Paul Patterson - Glenrock
Sure. In the 10-Q from the first quarter, which is all I have right now, it says that it could impact by about $1 billion, the cash and if the deferral was successfully challenged by the…
You are still talking about the like-kind exchange. Okay.
Paul Patterson - Glenrock
It could negatively impact Exelon ComEd’s results of operations by as much as $205 million after tax related to interest expense. That is on page 70 of the 10-Q.
Let me see if I can take a crack and then Tom can jump in, but I think what we were saying is if we lost all both issues that we would take a P&L hit now of about $300 million. The numbers I think you are referring to, Paul, are those numbers as of the first quarter, assuming some sort of settlement and a different reserve level.
So, I think the numbers that we are giving you now are just an update of those numbers that we gave out at the first quarter and then I think you would had asked about kind of an ongoing impact each year and I think you’ll find that, on the like-kind exchange, we aren’t going to adjust the reserves until we are through our sense of where the litigation is.
That is probably two or three years out in terms of settlement of that particular litigation effort. With respect to the involuntary conversion showed our position change in terms of our view of settlement, I think that will affect it. But I don’t think you will see any particular drag coming in terms of annualized earnings as a result of these two particular issues.
Matt, the one thing I would add is, Paul, you had asked about you mentioned a $196 million number, which was the penalty the IRS has asserted. Our worst-case does not assume a payment of the penalty because we believe that we will be able to defeat that penalty assertion.
Paul Patterson - Glenrock
One thing that sort of seems a little interesting was that there was a decrease in customers in ComEd for two quarters in a row and a decrease for just one quarter I guess at PECO, but the decrease in customers, is that a population decrease or it’s a little bit unusual. I mean I’m just wondering is that what that is or is that something else that is going on?
This is Frank Clark speaking. We saw about 17,000 customers decrease and it has never happened before. Our records go back to 1953. Not exactly sure where those customers are going, it could reflect the fact that people are still losing their homes, they are moving in with parents, they are moving out of the service territory, but I don’t expect it to be a steady state, but it is the first time we have ever seen it. That the numbers are not overwhelming, but still 17,000 fewer customers is an unusual event.
Paul Patterson - Glenrock
Then just finally on the gas versus the power prices, we did notice from the first quarter presentation higher gas prices by about $0.20, but a decrease again in power prices and just sort of to follow up on Paul Fremont’s question, I mean is there anything specifically is that sort of an anomaly thing, just variation that we should expect one way or the other or is there something that anything specifically, Ken, that you think might be causing that?
Paul, in the near term, a lot of it right now is about weather. We have seen a …
Paul Patterson - Glenrock
I was referring to 2011.
For 2011. I think what you have in 2011 is a question about demand rebound, economic rebound. You don’t have a lot of buyers still in the out years. You have more in 2011 maybe than in ‘12 and ‘13, but you still have this propensity for buyers to be out in shorter timeframes. When we do see an opportunity like the PECO procurement or Allegany procurement, we seem to see reasonable prices that reflect what we think is fair market value for the products that we are delivering.
When you look at some of the trading elements and you see less liquidity in the out years, you will also see a tendency for these heat rates to kind of drop off. Now there are a lot of moving parts. We don’t think the heat rates have actually looked that bad in the East. We are seeing some increase in basis for Eastern load zones in the Midwest. I think you are just absolutely seeing an impact from low demand, lower weather.
We know there has been some transmission elements and constraints that have gone on. So, it is a lot of moving parts, Paul, but we would expect that, as we rebound, you will see a rebound in some of these prices.
Operator, we will take one more question.
Your last question comes from Annie Tsao - AllianceBernstein.
Annie Tsao - AllianceBernstein
Can you give us a little bit more detail in terms of your uranium contract? Should we think about $0.04 negative going for the next two quarters and how should we think about that for next year as well?
For which contracts?
Annie Tsao - AllianceBernstein
The uranium contract.
Who wants to pick up on uranium? Matt, Chris?
I think it is in the release there, Karie. I don’t have the number in front of me, but we have got we are adjusting our contracts to our market to more of a market base they are rolling out. So, I think they continue is it $0.04, Karie?
Yes, it was $0.03 in the quarter, Annie and we continue to project those uranium costs to increase on year-over-year. The last time we disclosed that increase, which is on page 29 of our investor conference materials, Annie, we were forecasting about a little over $100 million increase from ‘09 to ‘10 and we go on from there and we can walk through those numbers.
I suspect that’s probably a reasonable run rate to use for going out from there.
Okay. Just to wrap up, lots of things going on around us are not very pretty, but I think we have proven in this quarter that we have the ability to manage the expenses in ways that keep giving you good earnings during these economic conditions and in this case, we even did it against weather too.
I think we’ll be able to deliver solid year for you and as you know, we are hard at work on the cost cuts necessary to make next year another good year. By 2011, we expect some recoveries in the power and gas market. We have the benefit of the change in Pennsylvania pricing.
I think we will live on cost cuts this year and next year and be back in a place where we can find some more growth for you by ‘11 and that is what we have set out to do and we will keep delivering. So, thanks a lot for your attention and with that, I think we have finished the call Karie.
Yes, thank you.
Thank you. This concludes today’s conference call. You may now disconnect.
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