UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-Q

 

(Mark One)

 

x    QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2008March 31, 2009 Or

 

¨    TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                    to                    

 

Commission file number 1-1232

 

DUKE ENERGY OHIO, INC.

(Exact Name of Registrant as Specified in its Charter)

 

Ohio 31-0240030
(State or Other Jurisdiction of Incorporation) (IRS Employer Identification No.)

139 East Fourth Street

Cincinnati, OH

 45202
(Address of Principal Executive Offices) (Zip code)

 

704-594-6200

(Registrant’s telephone number, including area code)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrants were required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yesx No¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ¨ No ¨

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer ¨ Accelerated filer¨
Non-accelerated filer x Smaller reporting company ¨
(Do not check if a smaller reporting company)  

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Securities Exchange Act of 1934).

Yes¨ Nox

 

All of the registrant’s common stock is indirectly owned by Duke Energy Corporation (File No. 1-32853) which is a reporting company under the Securities Exchange Act of 1934, as amended.

 

The registrant meets the conditions set forth in General Instructions H(1)(a) and (b) of Form 10-Q and is therefore filing this form with the reduced disclosure format specified in General Instructions H(2) of Form 10-Q.


INDEX

 

DUKE ENERGY OHIO, INC.

FORM 10-Q FOR THE QUARTER ENDED

SEPTEMBER 30, 2008 MARCH 31, 2009

 

Item


     Page

     Page

PART I. FINANCIAL INFORMATIONPART I. FINANCIAL INFORMATION   PART I. FINANCIAL INFORMATION   
1.  Financial Statements  3  Financial Statements  3
  

Unaudited Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2008 and 2007

  3  

Unaudited Consolidated Statements of Operations for the Three Months Ended March 31, 2009 and 2008

  3
  

Unaudited Consolidated Balance Sheets as of September 30, 2008 and December 31, 2007

  4  

Unaudited Consolidated Balance Sheets as of March 31, 2009 and December 31, 2008

  4
  

Unaudited Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2008 and 2007

  6  

Unaudited Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2009 and 2008

  6
  

Unaudited Consolidated Statements of Common Stockholder’s Equity and Comprehensive Income for the Nine Months Ended September 30, 2008 and 2007

  7  

Unaudited Consolidated Statements of Common Stockholder’s Equity and Comprehensive Income for the Three Months Ended March 31, 2009 and 2008

  7
  

Unaudited Notes to the Consolidated Financial Statements

  8  

Unaudited Notes to the Consolidated Financial Statements

  8
2.  Management’s Discussion and Analysis of Financial Condition and Results of Operations  30  Management’s Discussion and Analysis of Financial Condition and Results of Operations  32
4.  Controls and Procedures  32  Controls and Procedures  34
PART II. OTHER INFORMATIONPART II. OTHER INFORMATION   PART II. OTHER INFORMATION   
1.  Legal Proceedings  33  Legal Proceedings  35
1A.  Risk Factors  33  Risk Factors  35
6.  Exhibits  34  Exhibits  36
  Signatures  35  Signatures  37

 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION

 

 

This document includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are based on management’s beliefs and assumptions. These forward-looking statements are identified by terms and phrases such as “anticipate,” “believe,” “intend,” “estimate,” “expect,” “continue,” “should,” “could,” “may,” “plan,” “project,” “predict,” “will,” “potential,” “forecast,” “target,” and similar expressions. Forward-looking statements involve risks and uncertainties that may cause actual results to be materially different from the results predicted. Factors that could cause actual results to differ materially from those indicated in any forward-looking statement include, but are not limited to:

State and federal legislative and regulatory initiatives, including costs of compliance with existing and future environmental requirements;

State and federal legislative and regulatory initiatives and rulings that affect cost and investment recovery or have an impact on rate structures;

Costs and effects of legal and administrative proceedings, settlements, investigations and claims;

Industrial, commercial and residential growth or decline in Duke Energy Ohio, Inc.’s (Duke Energy Ohio) service territories;territories, customer base or customer usage patterns;

Additional competition in electric markets and continued industry consolidation;

The influence of weather and other natural phenomena on Duke Energy Ohio’s operations, including the economic, operational and other effects of storms, hurricanes, tornados, droughts and other natural phenomena;tornados;

The timing and extent of changes in commodity prices and interest rates;

Unscheduled generation outages, unusual maintenance or repairs and electric transmission system constraints;

The performance of electric generation facilities;

The results of financing efforts, including Duke Energy Ohio’s ability to obtain financing on favorable terms, which can be affected by various factors, including Duke Energy Ohio’s credit ratings and general economic conditions;

Declines in the market prices of equity securities and resultant cash funding requirements of Duke Energy Ohio for Cinergy Corp.’s defined benefit pension plans;

The level of creditworthinesscredit worthiness of counterparties to Duke Energy Ohio’s transactions;

Employee workforce factors, including the potential inability to attract and retain key personnel;

Growth in opportunities for Duke Energy Ohio’s business units, including the timing and success of efforts to develop domestic power and other projects; and

The effect of accounting pronouncements issued periodically by accounting standard-setting bodies.

In light of these risks, uncertainties and assumptions, the events described in the forward-looking statements might not occur or might occur to a different extent or at a different time than Duke Energy Ohio has described. Duke Energy Ohio undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.


PART I .I. FINANCIAL INFORMATION

 

DUKE ENERGY OHIO, INC.

CONSOLIDATED STATEMENTS OF OPERATIONS

(Unaudited)

(In millions)

 

Item 1.Financial Statements.

 

  Three Months Ended
September 30,


 Nine Months Ended
September 30,


   Three Months Ended
March 31,


    2008     2007     2008      2007       2009      2008  

Operating Revenues

            

Regulated electric

  $590  $242

Non-regulated electric and other

  $446  $613  $1,292  $1,381    116   392

Regulated electric

   286   278   756   742 

Regulated natural gas

   86   64   556   511    300   357

Total operating revenue

   818   955   2,604   2,634    1,006   991

Operating Expenses

            

Fuel used in electric generation and purchased power—regulated

   208   33

Fuel used in electric generation and purchased power—non-regulated

   332   310   612   728    59   144

Fuel used in electric generation and purchased power—regulated

   49   49   116   116 

Cost of natural gas and coal sold

   42   32   341   356    193   250

Operation, maintenance and other

   205   186   571   553    202   182

Depreciation and amortization

   106   107   305   295    103   99

Property and other taxes

   62   60   197   195    78   73

Impairments and other charges

   82      82    

Total operating expenses

   878   744   2,224   2,243    843   781

(Losses) Gains on Sales of Other Assets and Other, net

      (1)  46   (12)

Operating (Loss) Income

   (60)  210   426   379 

Gains on Sales of Other Assets and Other, net

   4   13

Operating Income

   167   223

Other Income and Expenses, net

   8   5   23   22       9

Interest Expense

   23   28   72   73    35   26

(Loss) Income Before Income Taxes

   (75)  187   377   328 

Income Tax (Benefit) Expense

   (21)  69   141   124 
Net (Loss) Income  $(54) $118  $236  $204 

Income Before Income Taxes

   132   206

Income Tax Expense

   47   73
Net Income  $85  $133




 

See Notes to Unaudited Consolidated Financial Statements

PART I

 

DUKE ENERGY OHIO, INC.

CONSOLIDATED BALANCE SHEETS

(Unaudited)

(In millions)

 

  September 30,
2008
  December 31,
2007
  March 31,
2009
  December 31,
2008

ASSETS

            

Current Assets

            

Cash and cash equivalents

  $341  $33  $26  $27

Receivables (net of allowance for doubtful accounts of $18 at September 30, 2008
and $3 at December 31, 2007)

   186   334

Receivables (net of allowance for doubtful accounts of $17 at March 31, 2009
and $18 at December 31, 2008)

   533   303

Inventory

   270   212   185   180

Unrealized gains on mark-to-market and hedging transactions

   104   22   44   51

Other

   172   94   299   336

Total current assets

   1,073   695   1,087   897

Investments and Other Assets

            

Restricted funds held in trust

   60   62   10   10

Goodwill

   2,324   2,325   2,360   2,360

Intangibles, net

   416   551   386   403

Unrealized gains on mark-to-market and hedging transactions

   30   17   17   17

Other

   33   33   54   55

Total investments and other assets

   2,863   2,988   2,827   2,845

Property, Plant and Equipment

            

Cost

   9,954   9,577   10,103   10,047

Less accumulated depreciation and amortization

   2,277   2,097   2,341   2,277

Net property, plant and equipment

   7,677   7,480   7,762   7,770

Regulatory Assets and Deferred Debits

            

Deferred debt expense

   23   23   24   23

Regulatory assets related to income taxes

   100   90   105   103

Other

   318   401   487   451

Total regulatory assets and deferred debits

   441   514   616   577

Total Assets

  $12,054  $11,677  $12,292  $12,089

 

See Notes to Unaudited Consolidated Financial Statements

PART I

 

DUKE ENERGY OHIO, INC.

CONSOLIDATED BALANCE SHEETS—(Continued)

(Unaudited)

(In millions, except share and per-share amounts)

 

  September 30,
2008
 December 31,
2007
   March 31,
2009
 December 31,
2008
 

LIABILITIES AND COMMON STOCKHOLDER’S EQUITY

      

Current Liabilities

      

Accounts payable

  $400  $602   $347  $511 

Notes payable and commercial paper

   492   189 

Notes payable

   279   343 

Taxes accrued

   231   172    128   134 

Interest accrued

   23   24    20   24 

Current maturities of long-term debt

   27   126    27   27 

Unrealized losses on mark-to-market and hedging transactions

   76   24    36   47 

Other

   70   86    100   93 

Total current liabilities

   1,319   1,223    937   1,179 

Long-term Debt

   1,856   1,810    2,304   1,856 

Deferred Credits and Other Liabilities

      

Deferred income taxes

   1,482   1,436    1,630   1,619 

Investment tax credit

   14   16 

Investment tax credits

   13   14 

Accrued pension and other post-retirement benefit costs

   242   259    286   406 

Unrealized losses on mark-to-market and hedging transactions

   28   25    14   15 

Asset retirement obligations

   33   31    34   33 

Other

   296   343    310   297 

Total deferred credits and other liabilities

   2,095   2,110    2,287   2,384 

Commitments and Contingencies

      

Common Stockholder’s Equity

      

Common Stock, $8.50 par value, 120,000,000 shares authorized; 89,663,086 shares outstanding at September 30, 2008 and December 31, 2007

   762   762 

Common Stock, $8.50 par value, 120,000,000 shares authorized; 89,663,086 shares outstanding at March 31, 2009 and December 31, 2008

   762   762 

Additional paid-in capital

   5,570   5,570    5,570   5,570 

Retained earnings

   463   227    466   381 

Accumulated other comprehensive loss

   (11)  (25)   (34)  (43)

Total common stockholder’s equity

   6,784   6,534    6,764   6,670 

Total Liabilities and Common Stockholder’s Equity

  $12,054  $11,677   $12,292  $12,089 





 

See Notes to Unaudited Consolidated Financial Statements

PART I

 

DUKE ENERGY OHIO, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited)

(In millions)

 

  Nine Months Ended
September 30,


   Three Months Ended
March 31,


 
       2008      2007       2009     2008 

CASH FLOWS FROM OPERATING ACTIVITIES

      

Net income

  $236  $204   $85  $133 

Adjustments to reconcile net income to net cash provided by operating activities:

   

Adjustments to reconcile net income to net cash (used in) provided by operating activities:

   

Depreciation and amortization

   308   295    104   100 

(Gains) losses on sales of other assets and other, net

   (46)  12 

Impairment charges

   82    

Gains on sales of other assets and other

   (4)  (13)

Deferred income taxes

   (37)  45    26   8 

Accrued pension and other post-retirement benefit costs

   16   28    3   6 

Contribution to company-sponsored pension and other post-retirement benefit plans

      (92)

(Increase) decrease in:

   

Contributions to qualified pension plans

   (143)   

(Increase) decrease in

   

Net realized and unrealized mark-to-market and hedging transactions

   (19)  31    (16)  (38)

Receivables

   168   71    16   52 

Inventory

   (58)  (14)   (5)  59 

Other current assets

   (36)  (1)   33   32 

Increase (decrease) in:

   

Increase (decrease) in

   

Accounts payable

   (209)  (56)   (163)  (132)

Taxes accrued

   70   (153)   (6)  49 

Other current liabilities

   (10)  (6)   (19)  3 

Regulatory asset/liability deferrals

   (24)  (20)   7   7 

Other assets

   21   141    33   24 

Other liabilities

   (73)  (46)   1   (24)

Net cash provided by operating activities

   389   439 

Net cash (used in) provided by operating activities

   (48)  266 

CASH FLOWS FROM INVESTING ACTIVITIES

      

Capital expenditures

   (381)  (461)   (91)  (133)

Net proceeds from the sales of other assets

      4 

Purchases of emission allowances

   (15)  (14)   (7)   

Sales of emission allowances

   60   25    5   12 

Change in restricted funds held in trust

   2   21 

Other

   3   (1)

Notes due from affiliate, net

   (243)   

Net cash used in investing activities

   (331)  (430)   (336)  (117)

CASH FLOWS FROM FINANCING ACTIVITIES

      

Issuance of long-term debt

   73   6    450    

Redemption of long-term debt

   (139)  (5)   (2)  (2)

Notes payable and commercial paper

   276    

Notes payable to affiliate, net

   40   74    (63)  (142)

Dividends to parent

      (135)

Capital contribution from parent

      29 

Other

   (2)   

Net cash provided by (used in) financing activities

   250   (31)   383   (144)

Net increase (decrease) in cash and cash equivalents

   308   (22)

Net (decrease) increase in cash and cash equivalents

   (1)  5 

Cash and cash equivalents at beginning of period

   33   45    27   33 

Cash and cash equivalents at end of period

  $341  $23   $26  $38 





Supplemental Disclosures

      

Significant non-cash transactions:

      

Purchase accounting adjustments

  $  $(8)

Accrued capital expenditures

  $60  $13   $55  $39 

 

See Notes to Unaudited Consolidated Financial Statements

PART I

 

DUKE ENERGY OHIO, INC.

CONSOLIDATED STATEMENTS OF COMMON STOCKHOLDER’S EQUITY AND COMPREHENSIVE INCOME

(Unaudited)

(In millions)

 

            Accumulated Other Comprehensive
Income (Loss)


    
   Common
Stock
  Additional
Paid-in
Capital
  Retained
Earnings
  Net Gains
(Losses) on
Cash Flow
Hedges
  Pension and
OPEB Related
Adjustments to
AOCI
  Total 

Balance at December 31, 2006

  $762  $5,601  $55  $(36) $(2) $6,380 

Net income

         204         204 

Other comprehensive income

                         

Cash flow hedges(a)

            1      1 

Pension and OPEB-related Adjustments to AOCI

               1   1 
                       


Total comprehensive income

                       206 

Capital contribution from parent

      29            29 

Push-down accounting adjustments

      (8)           (8)

Adoption of SFAS No. 158—measurement(b) date provision

         (3)     (2)  (5)

Dividend to parent

      (46)  (89)        (135)

Balance at September 30, 2007

  $762  $5,576  $167  $(35) $(3) $6,467 
                          

Balance at December 31, 2007

  $762  $5,570  $227  $(32) $7  $6,534 

Net income

         236         236 

Other comprehensive income

                         

Cash flow hedges(c)

            12      12 

Pension and OPEB-related Adjustments to AOCI(d)

               2   2 
                       


Total comprehensive income

                       250 

Balance at September 30, 2008

  $762  $5,570  $463  $(20) $9  $6,784 
            Accumulated Other Comprehensive
Income (Loss)


   
   Common
Stock
  Additional
Paid-in
Capital
  Retained
Earnings
  Net Gains
(Losses) on
Cash Flow
Hedges
  Pension and
OPEB Related
Adjustments to
AOCI
  Total

Balance at December 31, 2007

  $762  $5,570  $227  $(32) $7  $6,534

Net income

         133         133

Other comprehensive income

                        

Cash flow hedges(a)

            2      2
                       

Total comprehensive income

                       135

Balance at March 31, 2008

  $762  $5,570  $360  $(30) $7  $6,669
                         

Balance at December 31, 2008

  $762  $5,570  $381  $(15) $(28) $6,670

Net income

         85         85

Other comprehensive income

                        

Cash flow hedges(a)

            9      9
                       

Total comprehensive income

                       94

Balance at March 31, 2009

  $762  $5,570  $466  $(6) $(28) $6,764

 

(a)Net of $1$4 tax expense in 2007.
(b)Net of $2 tax benefit in 2007.
(c)Net of $7 tax expense in 2008.
(d)Net of insignificant2009 and $1 tax expense in 2008.

 

See Notes to Unaudited Consolidated Financial Statements

PART I

 

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements

 

1. Basis of Presentation

Nature of Operations and Basis of Consolidation. Duke Energy Ohio, Inc. (Duke Energy Ohio), an Ohio corporation organized in 1837, is a wholly-owned subsidiary of Cinergy Corp. (Cinergy). Cinergy is a wholly-owned subsidiary of Duke Energy Corporation (Duke Energy). Duke Energy Ohio is a combination electric and gas public utility company that provides service in the southwestern portion of Ohio and through its wholly-owned subsidiary, Duke Energy Kentucky, Inc. (Duke Energy Kentucky), in nearby areas of Kentucky, as well as unregulated electric generation in parts of Ohio, Illinois, Indiana and Pennsylvania. Duke Energy Ohio’s principal lines of business include generation, transmission and distribution of electricity, the sale of and/or transportation of natural gas, and energy marketing. Duke Energy Kentucky’s principal lines of business include generation, transmission and distribution of electricity as well as the sale of and/or transportation of natural gas. Except where separately noted, references to Duke Energy Ohio herein relate to the consolidated operations of Duke Energy Ohio, including Duke Energy Kentucky. These Unaudited Consolidated Financial Statements include, after eliminating intercompany transactions and balances, the accounts of Duke Energy Ohio and all majority-owned subsidiaries where Duke Energy Ohio has control, as well as Duke Energy Ohio’s proportionate share of certain generation and transmission facilities in Ohio, Kentucky and Indiana.

These Unaudited Consolidated Financial Statements have been prepared in accordance with generally accepted accounting principles (GAAP) in the United States of America (U.S.) for interim financial information and with the instructions to Form 10-Q and Regulation S-X. Accordingly, these Unaudited Consolidated Financial Statements do not include all of the information and notes required by GAAP in the U.S. for annual financial statements. Because the interim Unaudited Consolidated Financial Statements and Notes do not include all of the information and notes required by GAAP in the U.S. for annual financial statements, the Unaudited Consolidated Financial Statements and other information included in this quarterly report should be read in conjunction with the Unaudited Consolidated Financial Statements and Notes in Duke Energy Ohio’s Form 10-K for the year ended December 31, 2007.2008.

These Unaudited Consolidated Financial Statements reflect all normal recurring adjustments that are, in the opinion of management, necessary to fairly present Duke Energy Ohio’s financial position and results of operations. Amounts reported in the interim Unaudited Consolidated Statements of Operations are not necessarily indicative of amounts expected for the respective annual periods due to the effects of seasonal temperature variations on energy consumption, regulatory rulings, the timing of maintenance on electric generating units, changes in mark-to-market valuations, changing commodity prices and other factors.

Use of Estimates. To conform to GAAP in the U.S., management makes estimates and assumptions that affect the amounts reported in the Unaudited Consolidated Financial Statements and Notes. Although these estimates are based on management’s best available information at the time, actual results could differ.

Reclassifications. Certain prior period amounts on the Consolidated Balance Sheets have been reclassified in connection with the adoption of Financial Accounting Standards Board (FASB) Staff Position (FSP) No. FIN 39-1, “Amendment of FASB Interpretation No. (FIN) 39, Offsetting of Amounts Related to Certain Contracts,” (FSP No. FIN 39-1) on January 1, 2008, as discussed below, the effects of which require retrospective application to the Consolidated Balance Sheets.

Netting of Cash Collateral and Derivative Assets and Liabilities Under Master Netting Arrangements.On January 1, 2008, Duke Energy Ohio adopted FSP No. FIN 39-1. In accordance with FSP No. FIN 39-1, Duke Energy Ohio offsets fair value amounts (or amounts that approximate fair value) recognized on its Consolidated Balance Sheets related to cash collateral amounts receivable or payable against fair value amounts recognized for derivative instruments executed with the same counterparty under the same master netting agreement. Prior to the adoption of FSP No. FIN 39-1, Duke Energy Ohio offset the fair value amounts recognized for derivative instruments executed with the same counterparty under the same master netting agreement in accordance with FIN 39, “Offsetting of Amounts Related to Certain Contracts,” but presented cash collateral on a gross basis within the Consolidated Balance Sheets. At September 30, 2008 and December 31, 2007, Duke Energy Ohio had receivables related to the right to reclaim cash collateral of approximately $9 million and $5 million, respectively, and had payables related to obligations to return cash collateral of an insignificant amount at each balance sheet date that have been offset against net derivative positions in the Consolidated Balance Sheets. Duke Energy Ohio had cash collateral receivables of approximately $64 million and $15 million under master netting arrangements that have not been offset against net derivative positions at September 30, 2008 and December 31, 2007 respectively, as these amounts primarily represent initial margin deposits related to NYMEX futures contracts. Duke Energy Ohio had insignificant cash collateral payables under master netting arrangements that have not been offset against net derivative positions at September 30, 2008 and December 31, 2007.

Unbilled Revenue. Revenues on sales of electricity and gas are recognized when either the service is provided or the product is delivered. Unbilled retail revenues are estimated by applying an average revenue per kilowatt-hour or per thousand cubic feet (Mcf) for all customer classes to the number of estimated kilowatt-hours or Mcf’sMcfs delivered but not billed. Unbilled wholesale energy revenues are calculated by applying the contractual rate per megawatt hour (MWh) to the number of estimated MWh delivered, but not yet billed. Unbilled wholesale demand revenues are calculated by applying the contractual rate per megawatt (MW) to the MW volume not yet billed. The amount of unbilled revenues can vary sig-

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

nificantlysignificantly from period to period as a result of factors, including seasonality, weather, customer usage patterns and customer mix. Unbilled revenues, which are included inprimarily recorded as Receivables on the Consolidated Balance Sheets, primarily relate to wholesale sales at Commercial Power and were approximately $36$45 million and $38$41 million, at September 30, 2008March 31, 2009 and December 31, 2007,2008, respectively. Additionally, receivables for unbilled revenues of approximately $105 million and $145 million at September 30, 2008 and December 31, 2007, respectively, related to retail accounts receivable at Duke Energy Ohio and Duke Energy Kentucky are included in the sales of accounts receivable to Cinergy Receivables Company, LLC (Cinergy Receivables). Duke Energy Ohio and Duke Energy Kentucky sell, on a revolving basis, nearly all of their retail and wholesale accounts receivable and related collections to Cinergy Receivables Company, LLC (Cinergy Receivables), a bankruptcy remote, special purpose entity that is a wholly-owned limited liability company of Cinergy. The securitization transaction was structured to meet the criteria for sale treatment under Financial Accounting Standards Board (FASB) Statement of Financial Accounting Standards (SFAS) No. 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities-a replacement of FASB Statement No. 125” (SFAS No. 140), and, accordingly, Cinergy does not consolidate Cinergy Receivables and the transfers of receivables are accounted for as sales. Receivables for unbilled revenues of approximately $92 million and $149 million at March 31, 2009 and December 31, 2008, respectively, related to retail and wholesale accounts receivable at Duke Energy Ohio and Duke Energy Kentucky were included in the sales of accounts receivable to Cinergy Receivables.

Other Regulatory Assets and Deferred Debits. The state of Ohio passed comprehensive electric deregulation legislation in 1999, and in 2000, the Public Utilities Commission of Ohio (PUCO) approved a stipulation agreement relating to Duke Energy Ohio’s transition plan creating a Regulatory Transition Charge (RTC) designed to recover Duke Energy Ohio’s generation-related regulatory assets and transition costs over a ten-year period beginning January 1, 2001 and ending December 2010. Accordingly, application of SFAS No. 71,

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DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

Accounting for Certain Types of Regulation” (SFAS No. 71), was discontinued for the generation portion of Duke Energy Ohio’s business.business at that time (see below for subsequent reapplication of SFAS No. 71 to certain portions of Commercial Power’s business). Duke Energy Ohio has a RTC related regulatory asset balance of approximately $162$123 million and $239$138 million as of September 30, 2008March 31, 2009 and December 31, 2007,2008, respectively, which is classified in Other within Regulatory Assets and Deferred Debits on the Consolidated Balance Sheets.

Reapplication of SFAS No. 71 to Portions of Generation in Ohio.Duke Energy Ohio’s generation operations within its Commercial Power business segment (see Note 2) include generation assets located in Ohio that are dedicated to serve Ohio native load customers. These assets, as excess capacity allows, also generate revenues through sales outside the native load customer base, and such revenue is termed non-native.

Prior to December 17, 2008, Duke Energy Ohio’s Commercial Power business segment did not apply the provisions of SFAS No. 71 due to the comprehensive electric deregulation legislation passed by the state of Ohio in 1999. As described further below, effective December 17, 2008, the PUCO approved Duke Energy Ohio’s Electric Security Plan (ESP), which resulted in the reapplication of SFAS No. 71 to certain portions of Commercial Power’s operations as of that date.

From January 1, 2005 through December 31, 2008, Duke Energy Ohio, including its Commercial Power business segment, had been operating under a rate stabilization plan (RSP), which was a market-based standard service offer. Although the RSP contained certain trackers that enhanced the potential for cost recovery, there was no assurance of stranded cost recovery upon the expiration of the RSP on December 31, 2008 since it was initially anticipated that, upon the expiration of the RSP, there would be a move to full competitive markets. Accordingly, Duke Energy Ohio’s Commercial Power business segment did not apply the provisions of SFAS No. 71 to any of its generation operations prior to December 17, 2008. As discussed further in Note 10, in April 2008, new legislation (SB 221) was passed in Ohio and signed by the Governor of Ohio on May 1, 2008. The new law codified the PUCO’s authority to approve an electric utility’s standard service offer either through an ESP or a Market Rate Option (MRO). The MRO is a price determined through a competitive bidding process. On July 31, 2008, Duke Energy Ohio filed an ESP, and with certain amendments, the ESP was approved by the PUCO on December 17, 2008. The ESP became effective on January 1, 2009.

In connection with the approval of the ESP, Duke Energy Ohio reassessed the applicability of SFAS No. 71 to Commercial Power’s generation operations as SB 221 substantially increased the PUCO’s oversight authority over generation in the state of Ohio, including giving the PUCO complete approval of generation rates and the establishment of an earnings test to determine if a utility has earned significantly excessive earnings. Duke Energy Ohio determined that certain costs and related rates (riders) of Commercial Power’s operations related to generation serving native load meet the criteria established by SFAS No. 71 for regulatory accounting treatment as SB 221 and Duke Energy Ohio’s approved ESP solidified the automatic recovery of certain costs of its generation serving native load within its Commercial Power business segment and increased the likelihood that Commercial Power’s operations will remain under a cost recovery model for certain costs for the foreseeable future.

Under the ESP, Duke Energy Ohio bills for its native load generation via numerous riders. SB 221 and the ESP resulted in the approval of the automatic recovery of certain of these riders, which includes, but is not limited to, a price-to-compare fuel and purchased power rider and certain portions of a price-to-compare cost of environmental compliance rider. Accordingly, Duke Energy Ohio’s Commercial Power business segment began applying SFAS No. 71 to the corresponding RSP riders granting automatic recovery under the ESP on December 17, 2008. The remaining portions of Commercial Power’s native load generation operations, revenues from which are reflected in rate riders for which the ESP does not specifically allow automatic cost recovery, as well as all generation operations associated with non-native customers, including Commercial Power’s Midwest gas-fired generation assets, continue to not apply regulatory accounting as those operations do not meet the criteria of SFAS No. 71. Moreover, generation remains a competitive market in Ohio and native load customers continue to have the ability to switch to alternative suppliers for their electric generation service. As customers switch, there is a risk that some or all of the regulatory assets will not be recovered through the established riders. Duke Energy Ohio will continue to monitor the amount of native load customers that have switched to alternative suppliers when assessing the recoverability of its regulatory assets established for its native load generation operations within its Commercial Power business segment.

Despite certain portions of the Ohio native load operations not being subject to the accounting provisions of SFAS No. 71, all of Duke Energy Ohio’s native load operations’ rates are subject to approval by the PUCO, and thus these operations are referred to herein as Duke Energy Ohio’s regulated operations. Accordingly, beginning January 1, 2009, these revenues and corresponding fuel and purchased power expenses are recorded in Regulated Electric within Operating Revenues and Fuel Used in Electric Generation and Purchased Power—Regulated within Operating Expenses, respectively, on the Consolidated Statements of Operations.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

2. Business Segments

Duke Energy Ohio operates the following business segments, which are all considered reportable business segments under SFAS No. 131, “Disclosures about Segments of an Enterprise and Related Information”: Franchised Electric and Gas and Commercial Power. Duke Energy Ohio’s management believes these reportable business segments properly align the various operations of Duke Energy Ohio with how the chief operating decision maker views the business. Duke Energy Ohio’s chief operating decision maker regularly reviews financial information about each of these reportable business segments in deciding how to allocate resources and evaluate performance. There is no aggregation within Duke Energy Ohio’s reportabledefined business segments.

Franchised Electric and Gas which conducts operations primarily through Duke Energy Ohio and its wholly-owned subsidiary Duke Energy Kentucky, generates, transmits, distributes and sells electricity in southwestern Ohio and northern Kentucky as well asand transports and sells natural gas in southwestern Ohio and northern Kentucky. It conducts operations primarily through Duke Energy Ohio and Duke Energy Kentucky. These electric and gas operations are subject to the rules and regulations of the Federal Energy Regulatory Commission (FERC), the PUCO and the Kentucky Public Service Commission (KPSC). Substantially all of Franchised Electric and Gas’ operations are regulated and, accordingly, these operations are accounted for under the provisions of SFAS No. 71.

Commercial Power owns, operates and manages non-regulated power plants and engages in the wholesale marketing and procurement of electric power, fuel and emission allowances related to these plants, as well as other contractual positions. Commercial Power’s generation asset fleet consists of Duke Energy Ohio’s non-regulated generation in Ohioportfolio comprises approximately 7,550 net MW and five Midwestern gas-fired non-regulatedits generation assets that were transferred from Duke Energy in connection with Duke Energy’s merger with Cinergy in April 2006. Commercial Power’s assets comprise approximately 7,600 megawattsconsist of power generation primarily located in the Midwestern U.S. The asset portfolio has a diversified fuel mix with baseload and mid-merit coal-fired units, as well as combined cycle and peaking natural gas-fired units. MostCommercial Power’s portfolio includes the five Midwestern gas-fired generation assets that were transferred from Duke Energy in 2006. Through December 31, 2008, most of the generation asset output in Ohio has beenwas contracted through the rate stabilization plan (RSP)RSP (see Note 11)10). Effective January 1, 2009, Commercial Power began operating under an ESP, which expires on December 31, 2011. As a result of the approval of the ESP, certain of Commercial Power’s operations reapplied the provisions of SFAS No. 71 effective December 17, 2008. See Notes 1 and 10 for a discussion of the reapplication of the provisions of SFAS No. 71 to certain of Commercial Power’s operations, as well as for further discussion related to the RSP and ESP.

The remainder of Duke Energy Ohio’s operations is presented as Other. While it is not considered a business segment, Other primarily includes certain allocated governance costs (see Note 9)8).

Duke Energy Ohio’s reportable business segments offer different products and services or operate under different competitive environments and are managed separately as business units. Accounting policies for Duke Energy Ohio’s segments are the same as those described in the Notes to the Consolidated Financial Statements in Duke Energy Ohio’s Annual Report on Form 10-K for the year ended December 31, 2007.2008. Management evaluates segment performance based on earnings before interest and taxes from continuing operations (EBIT). On a segment basis, EBIT excludes discontinued operations and represents all profits from continuing operations (both operating and non-operating and excluding corporate governance costs) before deducting interest and taxes.

Cash, cash equivalents, and short-term investments, if any, are managed centrally by Cinergy and Duke Energy, so the interest and dividend income on those balances are excluded from segment EBIT. Transactions between reportable segments, if any, are included in segmentthe segments’ EBIT.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

Business Segment Data

 

  Unaffiliated
Revenues(a)


  Segment EBIT/
Consolidated (Loss)
Income
Before Income
Taxes


 Depreciation
and
Amortization


  Unaffiliated
Revenues(a)


  Segment EBIT/
Consolidated Income
Before Income
Taxes


 Depreciation
and
Amortization


  (in millions)  (in millions)

Three Months Ended September 30, 2008

      

Three Months Ended March 31, 2009

      

Franchised Electric and Gas

  $372  $59  $65  $540  $80  $52

Commercial Power

   446   (105)  41   466   99   51
  

  


 

Total reportable segments

   818   (46)  106   1,006   179   103

Other

      (11)        (15)  

Interest expense

      (23)        (35)  

Interest income and other

      5         3   
  

  


 

Total consolidated

  $818  $(75) $106  $1,006  $132  $103


  

  


 

Three Months Ended September 30, 2007

      

Three Months Ended March 31, 2008

      

Franchised Electric and Gas

  $344  $54  $65  $599  $97  $58

Commercial Power

   611   175   42   392   145   41

Total reportable segment

   955   229   107
  

  


 

Total reportable segments

   991   242   99

Other

      (19)        (18)  

Interest expense

      (28)        (26)  

Interest income and other

      5         8   
  

  


 

Total consolidated

  $955  $187  $107  $991  $206  $99


  

  


 

Nine Months Ended September 30, 2008

      

Franchised Electric and Gas

  $1,312  $197  $181

Commercial Power

   1,292   282   124

Total reportable segment

   2,604   479   305

Other

      (48)  

Interest expense

      (72)  

Interest income and other

      18   

Total consolidated

  $2,604  $377  $305

Nine Months Ended September 30, 2007

      

Franchised Electric and Gas

  $1,255  $183  $172

Commercial Power

   1,379   255   123

Total reportable segment

   2,634   438   295

Other

      (58)  

Interest expense

      (73)  

Interest income and other

      21   

Total consolidated

  $2,634  $328  $295

 

(a)There were no intersegment revenues for the three and nine months ended September 30, 2008March 31, 2009 and 2007.2008.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

Segment Assets

 

  September 30,
2008


  December 31,
2007


  March 31,
2009


 December 31,
2008


 
  (in millions)  (in millions) 

Franchised Electric and Gas

  $5,689  $5,530  $6,028  $5,857 

Commercial Power

   6,352   6,147   6,459   6,249 
  

  

  


 


Total reportable segments

   12,041   11,677   12,487   12,106 

Other

   13      1   17 

Eliminations and reclassifications

   (196)  (34)
  

  

  


 


Total consolidated assets

  $12,054  $11,677  $12,292  $12,089 
  

  

  


 


 

3. Sales of Other Assets

For the three months ended September 30,March 31, 2009 and 2008, the sale of other assets resulted in proceeds of approximately $4$5 million in proceeds and net pre-tax gains of an insignificant amount. For the nine months ended September 30, 2008, the sale of other assets resulted in approximately $64$16 million, in proceedsrespectively, and net pre-tax gains of approximately $46$4 million and $13 million, respectively, recorded in (Losses) Gains on Sales of Other Assets and Other, net on the Consolidated Statements of Operations. These gains primarily relate to Commercial Power’s sales of zero cost basis emission allowances.

For the three months ended September 30, 2007, the sale of other assets resulted in approximately $1 million in proceeds and net pre-tax losses of approximately $1 million recorded in (Losses) Gains on Sales of Other Assets and Other, net on the Consolidated Statements of Operations. For the nine months ended September 30, 2007, the sale of other assets resulted in approximately $25 million in proceeds and net pre-tax losses of approximately $12 million recorded in (Losses) Gains on Sales of Other Assets and Other, net on the Consolidated Statements of Operations. These amounts primarily relate to Commercial Power’s sales of emission allowances acquired in connection with Duke Energy’s merger with Cinergy in April 2006, which were written up to fair value as part of purchase accounting.allowances.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

4. Inventory

Inventory consists primarily of coal held for electric generation and materials and supplies and natural gas held in storage for transmission and sales commitments. Inventory is recorded primarily using the average cost method. Inventory related to Duke Energy Ohio’s regulated operations is valued at historical cost consistent with ratemaking treatment. Materials and supplies are recorded as inventory when purchased and subsequently charged to expense or capitalized to plant when installed. Inventory related to Duke Energy Ohio’s non-regulated operations is valued at the lower of cost or market.

 

  September 30,
2008


  December 31,
2007


  March 31,
2009


  December 31,
2008


  (in millions)  (in millions)

Coal held for electric generation

  $85  $77  $95  $89

Materials and supplies

   84   66   87   88

Natural gas

   101   69   3   3
  

  

  

  

Total inventory

  $270  $212

Total Inventory

  $185  $180
  

  

  

  

Effective November 1, 2008, Duke Energy Ohio and Duke Energy Kentucky executed agreements with a third party to transfer title of natural gas inventory purchased by Duke Energy Ohio and Duke Energy Kentucky to the third party. Under the agreements, the gas inventory will be stored and managed for Duke Energy Ohio and Duke Energy Kentucky and will be delivered on demand. The gas storage agreements will expire on October 31, 2009, unless extended by the third party for an additional 12 months. As a result of the agreements, the combined natural gas inventory of approximately $18 million and $81 million being held by a third party as of March 31, 2009 and December 31, 2008, respectively, has been classified as Other within Current Assets on the Consolidated Balance Sheets.

 

5. Debt and Credit Facilities

First and Refunding Mortgage Bonds. In March 2009, Duke Energy Ohio issued $450 million principal amount of first mortgage bonds, which carry a fixed interest rate of 5.45% and mature April 1, 2019. Proceeds from this issuance will be used to repay short-term notes and for general corporate purposes, including funding capital expenditures.

Money Pool. Duke Energy Ohio and its wholly-owned subsidiary, Duke Energy Kentucky, receive support for their short-term borrowing needs through their participation with Duke Energy and other Duke Energy subsidiaries in a money pool arrangement. Under this arrangement, those companies with short-term funds may provide short-term loans to affiliates participating under this arrangement. The money pool is structured such that Duke Energy Ohio and Duke Energy Kentucky separately manage their cash needs and working capital requirements. Accordingly, there is no net settlement of receivables and payables of Duke Energy Ohio and Duke Energy Kentucky, as each of these entities independently participate in the money pool. As of March 31, 2009, Duke Energy Ohio and Duke Energy Kentucky had combined net receivables of approximately $243 million, which is classified within Receivables in the accompanying Consolidated Balance Sheets. As of December 31, 2008, Duke Energy Ohio and Duke Energy Kentucky had combined net borrowings of approximately $63 million, which is classified within Notes Payable in the accompanying Consolidated Balance Sheets. The $243 million increase in receivables during the three months ended March 31, 2009 is reflected in Notes due from affiliate, net within Net cash used in investing activities on the Consolidated Statements of Cash Flows. In addition, the $63 million decrease in payables during the three months ended March 31, 2009 is reflected in Notes payable to affiliate, net within Net cash provided by (used in) financing activities on the Consolidated Statements of Cash Flows.

Available Credit Facilities and Capacity Utilized Under Available Credit Facilities. In March 2008,The total credit facility capacity under Duke Energy entered into an amendment to its $2.65 billionEnergy’s master credit facility whereby the borrowing capacity was increased by $550 million to $3.2is approximately $3.14 billion. Duke Energy has the unilateral ability under the master credit facility to increase or decrease the borrowing sub limits of each borrower, subject to maximum cap limitation, at any time. At September 30, 2008,March 31, 2009, Duke Energy Ohio and Duke Energy Kentucky had borrowing sub limits under Duke Energy’s master credit facility of $700$650 million and $100 million, respectively. In October 2008, Duke Energy reallocated the borrowing sub limits under the master credit facility, which resulted in the reduction of Duke Energy Ohio’s borrowing sub limit by $50 million to $650 million. Additionally, in October 2008, Duke Energy terminated the participation of one of the financial institutions supplying approximately $63 million of credit commitment under its master credit facility, which reduced the total credit facility capacity under Duke Energy’s master credit facility to approximately $3.14 billion. This termination reduced Duke Energy Ohio’s and Duke Energy Kentucky’s borrowing sub limits by approximately $13 million and $2 million, respectively. The amount available to Duke Energy Ohio and Duke Energy Kentucky under their sub limits to Duke Energy’s master credit facility has been reduced by drawdowns of cash, borrowings through the money pool arrangement, and the use of the master credit facility to backstop issuances of letters of credit and pollution control bonds, as discussed below.

At March 31, 2009, Duke Energy and its wholly-owned subsidiaries, including Duke Energy Ohio and Duke Energy Kentucky, had outstanding borrowings of approximately $750 million under Duke Energy’s master credit facility, of which Duke Energy Ohio’s and Duke Energy Kentucky’s portions are approximately $279 million and $74 million, respectively. The loans, which are revolving credit loans, bear interest at one-month London Interbank Offered Rate (LIBOR) plus an applicable spread ranging from 19 to 24 basis points and are due in

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

In September 2008, Duke Energy and its wholly-owned subsidiaries, including Duke Energy Ohio and Duke Energy Kentucky, borrowed a total of approximately $1 billion under Duke Energy’s master credit facility. Of the approximate $1 billion, Duke Energy Ohio’s and Duke Energy Kentucky’s portions are approximately $276 million and $73 million, respectively. The loan, which is a revolving credit loan, bears interest at the bank prime rate and is due in September 2009; however, Duke Energy Ohio and Duke Energy Kentucky have the ability under the master credit facility to renew the loan up through the date the master credit facility matures, which is in June 2012. As Duke Energy Kentucky has the intent and ability to refinance this obligation on a long-term basis, either through renewal of the terms of the loan through the master credit facility, which has non-cancelable terms in excess of one-year, or through issuance of long-term debt to replace the amounts drawn under the master credit facility, Duke Energy Kentucky’s borrowing is reflected as Long-Term Debt on the Consolidated Balance Sheets at September 30, 2008.March 31, 2009. Since Duke Energy Ohio does not have the intent to refinance these obligations on a long-term basis, Duke Energy Ohio’s borrowing is reflected in Current Liabilities within Notes Payable and Commercial Paperwithin Current Liabilities on the Consolidated Balance Sheets at September 30, 2008.March 31, 2009. These borrowings reduce Duke Energy Ohio’s and Duke Energy Kentucky’s available credit capacity under Duke Energy’s Master Credit Facility, as discussed above.

Duke Energy Ohio and its wholly-owned subsidiary, Duke Energy Kentucky, receive support for their short-term borrowing needs through their participation with Duke Energy and other Duke Energy subsidiaries in a money pool arrangement. Under this arrangement, those companies with short-term funds may provide short-term loans to affiliates participating under this arrangement. The money pool is structured such that Duke Energy Ohio and Duke Energy Kentucky separately manage their cash needs and working capital requirements. Accordingly, there is no net settlement of receivables and payables of Duke Energy Ohio and Duke Energy Kentucky, as each of these entities independently participate in the money pool. As of September 30, 2008, Duke Energy Kentucky had net receivables of approximately $1 million, which are classified within Receivables in the accompanying Consolidated Balance Sheets, and Duke Energy Ohio had net borrowings of approximately $229 million, of which approximately $216 million is classified within Notes Payable and Commercial Paper, and approximately $13 million is classified as Long-Term Debt in the accompanying Consolidated Balance Sheets, as discussed below. As of DecemberAt both March 31, 2007, Duke Energy Ohio and Duke Energy Kentucky had combined net borrowings of approximately $189 million, which are classified within Notes Payable and Commercial Paper in the accompanying Consolidated Balance Sheets. The $40 million and $74 million increases in the money pool borrowings during the nine months ended September 30, 2008 and 2007, respectively, are reflected in Notes Payable to Affiliate, net within Net cash provided by (used in) financing activities on the Consolidated Statements of Cash Flows. The $1 million increase in the money pool receivables during the nine months ended September 30, 2008 is reflected in Other within Net cash used in investing activities on the Consolidated Statements of Cash Flows.

At September 30, 20082009 and December 31, 2007,2008, approximately $84$146 million and $96 million, respectively, of certain pollution control bonds, which are short-term obligations by nature, arewere classified as Long-Term Debt on the Consolidated Balance Sheets due to Duke Energy Ohio’s intent and ability to utilize such borrowings as long-term financing. Duke Energy’s credit facilities with non-cancelable terms in excess of one year as of the balance sheet date give Duke Energy Ohio the ability to refinance these short-term obligations on a long-term basis. Additionally, at September 30, 2008, approximately $13 million of borrowings via the money pool are classified as Long-Term Debt on the Consolidated Balance Sheets due to Duke Energy Ohio’s intent and ability to utilize such borrowings as long-term financing. Of the $84$146 million of pollution control bonds outstanding at September 30, 2008,March 31, 2009, approximately $72$84 million were backstopped by Duke Energy’s master credit facility, with the remaining balance backstopped by other specific credit facilities separate from the master credit facility.

In September 2008, Duke Energy Kentucky and Duke Energy Indiana, Inc., a wholly-owned subsidiary of Duke Energy, collectively entered into a $330 million letter of credit agreement with a syndicate of banks. Under this letter of credit agreement, Duke Energy Kentucky may request the issuance of letters of credit up to approximately $51 million on its behalf to support various series of variable rate demand bonds issued or to be issued on behalf of Duke Energy Kentucky. This credit facility, which is not part of Duke Energy’s master credit facility, may not be used for any purpose other than to support variable rate demand bonds issued by Duke Energy Kentucky and Duke Energy Indiana, Inc.

Restrictive Debt Covenants.Duke Energy’s debt and credit agreement contains various financial and other covenants, including, but not limited to, a covenant regarding the debt-to-total capitalization ratio at Duke Energy, Duke Energy Ohio and Duke Energy Kentucky to not exceed 65%.covenants. Duke Energy Ohio’s debt agreements also contain various financial and other covenants. Failure to meet these covenants beyond applicable grace periods could result in accelerated due dates and/or termination of the agreements. As of September 30, 2008,March 31, 2009, Duke Energy, Duke Energy Ohio and Duke Energy Kentucky were in compliance with all covenants that would impact Duke Energy Ohio’s or Duke Energy Kentucky’s ability to borrow funds under the debt and credit facilities. In addition, some credit agreements may allow for

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

acceleration of payments or termination of the agreements due to nonpayment, or the acceleration of other significant indebtedness of the borrower or some of its subsidiaries. None of the debt or credit agreements contain material adverse change clauses.

 

6. Employee Benefit Obligations

Duke Energy Ohio participates in pension and other post-retirement benefit plans sponsored by Cinergy. Net periodic pension cost discussed below for qualified and other post-retirement benefit plans represents the allocated cost of the respective pension plan for the periods presented. However, portions of the net periodic pension cost discussed below have been capitalized as a component of property, plant and equipment. Duke Energy Ohio’s net periodic benefit costs as allocated by Cinergy were as follows:

 

  Three Months Ended
September 30,


  Nine Months Ended
September 30,


  2008

 2007

  2008

  2007

  Three Months Ended
March 31,
2009


  Three Months Ended
March 31,
2008


  (in millions)  (in millions)

Qualified Pension Benefits(a)

  $3  $5  $9  $12  $1  $2

Other Post-retirement Benefits(b)

  $(2) $4  $3  $9  $  $3

 

(a)These amounts exclude approximately $1 million and $(2) million for the three months ended September 30, 2008 and 2007, respectively, and approximately $3 million and $5 million for the nine months ended September 30, 2008 and 2007, respectively, of regulatory asset amortization resulting from purchase accounting.accounting adjustments in connection with Duke Energy’s merger with Cinergy in April 2006 for each of the three months ended March 31, 2009 and 2008.
(b)These amounts exclude insignificant amounts for the three months ended September 30, 2008 and 2007, respectively, and approximately $1 million and $2 million for the nine months ended September 30, 2008 and 2007, respectively,an insignificant amount of regulatory asset amortization resulting from purchase accounting.accounting adjustments in connection with Duke Energy’s merger with Cinergy in April 2006 for the three months ended March 31, 2009 and 2008, respectively.

During the third quarter of 2008, Duke Energy Ohio recorded pre-tax income of approximately $23 million related to the correction of errors related to the accounting for Duke Energy Ohio’s other post-retirement benefit plans. Of this amount, approximately $20 million relates to errors in actuarial valuations prior to 2008 that would have reduced amounts recorded as other post-retirement benefit expense recorded during those historical periods and approximately $3 million relates to an error reflected in other post-retirement benefit expense for the first six months of 2008.

Duke Energy’s policy is to fund amounts for its U.S. qualified pension plans on an actuarial basis to provide assets sufficient to meet benefit payments to be paid to plan participants. In February 2009, Duke Energy Ohio made a cash contribution of approximately $143 million, which represented its proportionate share of an approximate $500 million total contribution to Cinergy’s and Duke Energy’s qualified pension plans. Duke Energy did not require Duke Energy Ohio to make contributions to the legacy Cinergy qualified or non-qualified pension plans during the three and nine months ended September 30, 2008 andMarch 31, 2008. Duke Energy does not anticipate requiring Duke Energy Ohio to makemaking additional contributions to the legacy Cinergy qualified or non-qualified pension plans during the remainder of 2008. During the nine months ended September 30, 2007, approximately $350 million of qualified pension plan contributions were made to the legacy2009. Cinergy qualified pension plans, of which approximately $83 million represents contributions made by Duke Energy Ohio. During the three and nine months ended September 30, 2007, approximately $32 million of other post-retirement plan contributions were made to the legacy Cinergy other post-retirement plans, of which approximately $9 million represents contributions made by Duke Energy Ohio. Additionally, Duke Energy Ohio participates in Cinergy sponsoredalso sponsors employee savings plans that cover substantially all Duke Energy Ohio employees. Duke Energy Ohio made its proportionate share of pre-tax employer matching contributions of approximately $2 million and $5 million during the three and nine months ended September 30, 2008, respectively. Duke Energy Ohio made its proportionate share ofexpensed pre-tax employer matching contributions of approximately $1 million and $3 million duringfor each of the three and nine months ended September 30, 2007, respectively.

7. GoodwillMarch 31, 2009 and Intangibles

Carrying Amount of Goodwill

Duke Energy Ohio evaluates the carrying amount of its recorded goodwill for impairment under the guidance of SFAS No. 142, “Goodwill and Other Intangible Assets” (SFAS No. 142). At a minimum, SFAS No. 142 requires a goodwill impairment test to be performed annually as of the same date each year. Duke Energy Ohio performs its annual impairment testing of goodwill as of August 31 of each year, or more frequently if events or circumstances occur that would indicate the probability of impairment. As the fair value of each of Duke Energy Ohio’s reporting units exceeded their respective carrying values at August 31, 2008, Duke Energy Ohio did not record any impairment charges in the third quarter of 2008 as a result of its annual impairment test. However, in light of recent market and economic events, management is reassessing the potential for any impairments to recorded goodwill balances. These assessments are in their early stages and management cannot yet predict the outcome, but it is possible that the current assessments could result in goodwill impairments being recorded at one or more reporting units.2008.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

7. Goodwill and Intangibles

Goodwill

The following table shows the componentscarrying amount of goodwill by reportable business segment at September 30, 2008as of both March 31, 2009 and December 31, 2007:2008 was approximately $2,360 million, of which approximately $1,206 million was reflected in the Commercial Power segment and approximately $1,154 million was reflected in the Franchised Electric and Gas segment.

   Balance
December 31,
2007


  Changes

  Balance
September 30,
2008


   (in millions)

Commercial Power

  $1,188  $(1) $1,187

Franchised Electric and Gas

   1,137      1,137
   

  


 

Total Goodwill

  $2,325  $(1) $2,324
   

  


 

 

Intangible Assets

The carrying amount and accumulated amortization of intangible assets as of September 30, 2008March 31, 2009 and December 31, 20072008 are as follows:

 

  September 30,
2008


 December 31,
2007


   March 31,
2009


 December 31,
2008


 
  (in millions)   (in millions) 

Emission allowances

  $246  $365   $228  $239 

Gas, coal, and power contracts

   271   271 

Gas, coal and power contracts

   271   271 

Other

   9   9    9   9 
  


 


  


 


Total gross carrying amount

   526   645    508   519 
  


 


  


 


Accumulated amortization—gas, coal, and power contracts

   (105)  (89)

Accumulated amortization—gas, coal and power contracts

   (116)  (111)

Accumulated amortization—other

   (5)  (5)   (6)  (5)
  


 


  


 


Total accumulated amortization

   (110)  (94)   (122)  (116)
  


 


  


 


Total intangible assets, net

  $416  $551   $386  $403 
  


 


  


 


Emission allowances in the table above include emission allowances which were recorded at the then fair value on the date of Duke Energy’s merger with Cinergy in April 2006 and emission allowances purchased by Duke Energy Ohio. Additionally, Duke Energy Ohio is allocated certain zero cost emission allowances on an annual basis. The change in the gross carrying value of emission allowances during the ninethree months ended September 30, 2008March 31, 2009 is as follows:

 

   (in millions) 

Gross carrying value at January 1, 2008

  $365 

Purchases of emission allowances

   15 

Sales and consumption of emission allowances(a)(b)

   (59)

Impairment of emission allowances(c)

   (82)

Other changes

   7 
   


Gross carrying value at September 30, 2008

  $246 
   


   (in millions) 

Gross carrying value at beginning of period

  $239 

Purchases of emission allowances

   7 

Sales and consumption of emission allowances(a)(b)

   (18)
   


Gross carrying value at end of period

  $228 
   


 

(a)Carrying valuevalues of emission allowances are recognized via a charge to expense when consumed. Carrying valuevalues of emission allowances sold or consumed during the three months ended September 30,March 31, 2008 and 2007 were $17 million and $34 million, respectively. Carrying value of emission allowances sold or consumed during the nine months ended September 30, 2008 and 2007 were $59 million and $134 million, respectively.was approximately $16 million.
(b)See Note 3 for a discussion of gains and losses on sales of emission allowances by Commercial Power during the three and nine months ended September 30, 2008March 31, 2009 and 2007.
(c)See Note 8 for discussion of impairments of the carrying value of emission allowances of approximately $82 million during the three months ended September 30, 2008.

Amortization expense for gas, coal and power contracts and other intangible assets for both the three months ended September 30,March 31, 2009 and 2008 and 2007 was approximately $6 million and $13 million, respectively. Amortization expense for gas, coal and power contracts and other intangible assets for the nine months ended September 30, 2008 and 2007 was approximately $16 million and $38 million, respectively.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)million.

 

Intangible Liabilities

In connection with the Duke Energy and Cinergy merger, in April 2006, Duke Energy Ohio recorded an intangible liability of approximately $113 million associated with the market based standard service offer (MBSSO)RSP in Ohio, which is beingwas recognized in earnings over the remaining regulatory period that endsended on December 31, 2008. The carrying amountThis liability became fully amortized in the fourth quarter of this intangible liability was approximately $17 million and $67 million at September 30, 2008 and December 31, 2007, respectively.2008. Duke Energy Ohio also recorded approximately $56 million of intangible liabilities associated with other power sale contracts in connection with the Duke Energy and Cinergy merger. The carrying amount of thisthese intangible liabilityliabilities associated with other power sale contracts was approximately $18$15 million and $22$16 million at September 30, 2008March 31, 2009 and December 31, 2007,2008, respectively. During the three and nine months ended September 30,March 31, 2009 and 2008, Duke Energy Ohio amortized approximately $18$1 million and $54 million, respectively, to income related to these intangible liabilities. During the three and nine months ended September 30, 2007, Duke Energy Ohio amortized approximately $15 million and $29$18 million, respectively, to income related to these intangible liabilities. Intangible liabilities are classified as Other within Deferred Credits and Other Liabilities on the Consolidated Balance Sheets.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

8. Impairment Charges

Emission Allowances. On July 11, 2008, the U.S. Court of Appeals for the District of Columbia issued a decision vacating the Clean Air Interstate Rule (CAIR). See Note 12 for further discussion of the decision, which resulted in sharp declines in market prices of sulfur dioxide (SO2) and nitrogen oxide (NOx) allowances in the third quarter of 2008 due to uncertainty associated with future federal requirements to reduce emissions. Accordingly, pursuant to SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” Duke Energy Ohio evaluated the carrying value of emission allowances held by its non-regulated businesses for impairment at September 30, 2008.

Prior to its repeal, the CAIR required 50% reductions in SO2 emissions beginning in 2010 and further 30% reductions in SO2emissions in 2015 beyond specified requirements. These reductions were to be achieved by requiring the surrender of SO2 allowances in a ratio of two allowances per ton of SO2 emitted beginning in 2010, up from a current one-to-one ratio, escalating to 2.86 allowances per ton of SO2 emitted beginning in 2015. Taking into account these increases in emission allowance requirements under CAIR, Commercial Power’s forecasted SO2emissions needed through 2037 exceeded the number of emission allowances held prior to the vacating of the CAIR. Subsequent to the decision to vacate CAIR, Commercial Power determined that it had SO2allowances in excess of forecasted emissions and those allowances held in excess of forecasted emissions from future generation required an impairment evaluation. In performing the impairment evaluation for SO2 allowances at September 30, 2008, management compared quoted market prices for each vintage year allowance to the carrying value of the related allowances in excess of forecasted emissions through 2038. Due to the sharp decline in market prices of SO2 allowances, as discussed above, Commercial Power recorded pre-tax impairment charges of approximately $77 million related to forecasted excess SO2 allowances held at September 30, 2008. Additionally, Commercial Power recorded pre-tax impairment charges of approximately $5 million related to annual NOxallowances during the three months ended September 30, 2008 as these were also affected by the decision to vacate the CAIR. These impairment charges are recorded in Impairments and Other Charges within Operating Expenses on the Consolidated Statements of Operations.

Management will continue to assess the forecasted usage and carrying value of emission allowances going forward to determine if further impairment write-downs are necessary. See Note 7 for further information regarding the carrying value of emission allowances.

9. Related Party Transactions

Duke Energy Ohio engages in related party transactions, which are generally performed at cost and in accordance with the applicable state and federal commission regulations. Balances due to or due from related parties included in the Consolidated Balance Sheets as of September 30, 2008March 31, 2009 and December 31, 20072008 are as follows:

 

   September 30,
2008


  December 31,
2007


 
   (in millions) 

Current assets due from affiliated companies(a)(b)

  $30  $58 

Current liabilities due to affiliated companies(a)(c)

  $(197) $(266)

Non-current liabilities due to affiliated companies(a)(d)

  $(5) $ 

Net deferred tax liabilities to Duke Energy(a)(e)

  $(1,399) $(1,401)

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

   March 31,
2009(a)


  December 31,
2008(a)


 
   (in millions) 

Current assets(b)

  $52  $55 

Non-current assets(c)

  $4  $5 

Current liabilities(d)

  $(63) $(138)

Non-current liabilities(e)

  $(5) $(4)

Net deferred tax liabilities(f)

  $(1,546) $(1,519)

 

(a)Balances exclude assets or liabilities associated with accrued pension and other post-retirement benefits, Cinergy Receivables and money pool arrangements all of which areas discussed below.
(b)Of the balance at September 30, 2008,March 31, 2009, approximately $26$38 million is classified as Receivables, approximately $2 million is classified as Unrealized gains on mark-to-market and hedging transactions within Current Assets and approximately $4$12 million is classified as Other within Current Assets. Of the balance at December 31, 2008, approximately $18 million is classified as Receivables, approximately $2 million is classified as Unrealized gains on mark-to-market and hedging transactions within Current Assets and approximately $35 million is classified as Other within Current Assets on the Consolidated Balance Sheets.
(c)The balancebalances at March 31, 2009 and December 31, 2007 is2008 are classified as ReceivablesUnrealized gains on mark-to-market and hedging transactions within Investments and Other Assets on the Consolidated Balance Sheets.
(c)(d)Of the balance at September 30, 2008,March 31, 2009, approximately $(125)$(56) million is classified as Accounts Payable,payable, approximately $(70)$(3) million is classified as Taxes Accrued,accrued and approximately $(2)$(4) million is classified as Unrealized Losseslosses on Mark-to-Marketmark-to-market and Hedging Transactionshedging transactions within Current Liabilities on the Consolidated Balance Sheets. Of the balance at December 31, 2007,2008, approximately $(256)$(133) million is classified as Accounts Payable andpayable, approximately $(10)$(2) million is classified as Taxes Accrued on the Consolidated Balance Sheets.
(d)The balance at September 30, 2008accrued and approximately $(3) million is classified as Unrealized Losseslosses on Mark-to-Marketmark-to-market and Hedging Transactionshedging transactions within Current Liabilities on the Consolidated Balance Sheets.
(e)The balances at March 31, 2009 and December 31, 2008 are classified as Unrealized losses on mark-to-market and hedging transactions within Deferred Credits and Other Liabilities on the Consolidated Balance Sheets.
(f)Of the balance at September 30, 2008,March 31, 2009, approximately $(1,458)$(1,595) million is classified as Deferred Income Taxes, approximately $(14) million is classified as Investment Tax credit,income taxes and approximately $73$49 million is classified as Other within Current Assets on the Consolidated Balance Sheets. Of the balance at December 31, 2007,2008, approximately $(1,409)$(1,580) million is classified as Deferred Income Taxes, approximately $(16) million is classified as Investment Tax Credit,income taxes and approximately $24$61 million is classified as Other within Current Assets on the Consolidated Balance Sheets.

Duke Energy Ohio is allocatedcharged its proportionate share of corporate governance and other costs by an unconsolidated affiliate that is a consolidated affiliate of Duke Energy and a consolidated affiliate of Cinergy.Energy. Corporate governance and other shared services costs are primarily allocations of corporate costs, such asrelated to human resources, legal and accounting fees, as well as other third party costs. The expenses associated with certain allocated corporateDuring the three months ended March 31, 2009 and 2008, Duke Energy Ohio recorded governance and other service costs for Duke Energy Ohio,shared services expenses of approximately $100 million and $61 million, respectively, which are recorded in Operation, maintenanceMaintenance and otherOther within Operating Expenses on the Consolidated Statements of Operations were approximately $83 million and $67 million for the three months ended September 30, 2008 and 2007, respectively, and approximately $203 million and $183 million for the nine months ended September 30, 2008 and 2007, respectively.Operations.

Duke Energy Ohio incurs expenses related to its propertycertain insurance coveragecoverages through Bison Insurance Company Limited, Duke Energy’s wholly-owned captive insurance subsidiary. These expenses, which are recorded in Operation, maintenanceMaintenance and otherOther within Operating Expenses on the Consolidated Statements of Operations, were approximately $4 million and $3 million for each of the three months ended September 30, 2008March 31, 2009 and 2007, respectively, and approximately $11 million and $17 million for the nine months ended September 30, 2008 and 2007, respectively.2008. Additionally, Duke Energy Ohio records income associated with the rental of office space to a consolidated affiliate of Duke Energy.Energy, as well as income associated with certain other recoveries of cost. Rental income wasand other cost recoveries were approximately $2 million for each of the three months ended September 30, 2008March 31, 2009 and 2007, respectively, and approximately $7 million for each of the nine months ended September 30, 2008 and 2007, respectively.2008.

Duke Energy Ohio participates in Cinergy’s qualified pension plan, non-qualified pension plan and other post-retirement benefit plans and is allocated its proportionate share of expenses associated with these plans (see Note 6). Additionally, Duke Energy Ohio has been allocated accrued pension and other post-retirement benefit obligations from Cinergy of approximately $252$296 million at September 30, 2008March 31, 2009 and approximately $266$416 million at December 31, 2007.2008. These amounts have been classified in the Consolidated Balance Sheets as follows:

 

  September 30,
2008


  December 31,
2007


  March 31,
2009


  December 31,
2008


  (in millions)  (in millions)

Other current liabilities

  $5  $5  $5  $5

Accrued pension and other post-retirement benefit costs

  $242  $259  $286  $406

Other deferred credits and other liabilities

  $5  $2  $5  $5

As discussed in Note 1, certain trade receivables have been sold by Duke Energy Ohio to Cinergy Receivables.Receivables, an unconsolidated entity formed by Cinergy. The proceeds obtained from the sales of receivables are largely cash but do include a subordinated note from Cinergy Receivables for a portion of the purchase price. This subordinated note is classified as Receivables in the Consolidated Balance

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

Sheets and was approximately $118$154 million and $189$174 million as of September 30, 2008March 31, 2009 and December 31, 2007,2008, respectively. The interest income associated with the subordinated note, which is recorded in Other Income and Expenses, net on the Consolidated Statements of Operations, was approximately $5 million and $6$8 million for the three months ended September 30,March 31, 2009 and 2008, and 2007, respectively, and approximately $17 million and $19 million for the nine months ended September 30, 2008 and 2007, respectively.

During the nine months ended September 30, 2007, Duke Energy Ohio received a $29 million capital contribution from its parent, Cinergy. Additionally, during the nine months ended September 30, 2007, Duke Energy Ohio paid dividends to its parent, Cinergy, of $135 million.

As discussed further in Note 5, Duke Energy Ohio participates in a money pool arrangement with Duke Energy and other Duke Energy subsidiaries. As of March 31, 2009, Duke Energy Ohio was in a receivable position of approximately $243 million. As of December 31, 2008, Duke Energy Ohio was in a payable position of approximately $63 million. The expenses associated with money pool activity, which are recorded in Interest Expense on the Consolidated Statements of Operations were approximately $2 million and $4 million for the three months ended September 30,March 31, 2009 and 2008 and 2007, respectively,were insignificant and approximately $3$1 million, respectively.

9. Risk Management, Derivative Instruments and $7 millionHedging Activities

The primary risks Duke Energy Ohio manages by utilizing derivative instruments are commodity price risk and interest rate risk. Duke Energy Ohio closely monitors the risks associated with commodity price changes and changes in interest rates on its operations and, where appropriate, uses various commodity and interest rate instruments to manage these risks. Certain of these derivative instruments are designated as hedging instruments under SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities” (SFAS No. 133), while others either do not qualify as a hedge or have not been designated as hedges by Duke Energy Ohio (hereinafter referred to as undesignated contracts). Duke Energy Ohio’s primary use of energy commodity derivatives is to hedge its generation portfolio against exposure to the nine months ended September 30, 2008prices of power and 2007, respectively.fuel. Interest rate swaps are entered into to manage interest rate risk primarily associated with Duke Energy Ohio’s variable-rate and fixed-rate borrowings.

SFAS No. 133 requires the recognition of all derivative instruments as either assets or liabilities at fair value in the Consolidated Balance Sheets. In accordance with SFAS No. 133, Duke Energy Ohio may elect to designate qualifying commodity and interest rate derivatives as either cash flow hedges or fair value hedges.

For derivative instruments that are designated and qualify as cash flow hedges, the effective portion of the gain or loss is reported as a component of Accumulated Other Comprehensive Income (AOCI) and reclassified into earnings in the same period or periods during which the hedged transaction affects earnings. Any gains or losses on the derivative that represent either hedge ineffectiveness or hedge components excluded from the assessment of effectiveness are recognized in current earnings. For derivative instruments that are designated and qualify as a fair value hedge, the gain or loss on the derivative as well as the offsetting loss or gain on the hedged item are recognized in earnings, to the extent effective, in the current period. Duke Energy Ohio includes the gain or loss on the hedged items in the same line item as the offsetting loss or gain on the derivative in the Consolidated Statements of Operations. Additionally, Duke Energy Ohio enters into derivative agreements that are economic hedges that either do not qualify for hedge accounting or have not been designated as a hedge. These derivative instruments are typically reflected on the Consolidated Balance Sheets at fair value with changes in the value of the derivative instrument reflected in regulatory assets or liabilities, as discussed below, or, if appropriate, in current earnings.

As Duke Energy Ohio’s regulated operations within its Franchised Electric and Gas and Commercial Power business segments apply the provisions of SFAS No. 71, certain gains and losses associated with undesignated contracts are deferred as regulatory liabilities and assets, respectively, thus there is no immediate earnings impact associated with the change in fair values associated with these derivative contracts.

Commodity Price Risk

Duke Energy Ohio is exposed to the impact of market changes in the future prices of electricity (energy, capacity and financial transmission rights), coal, natural gas and emission allowances (sulfur dioxide (SO2), seasonal nitrogen oxide (NOX) and annual NOX) as a result of its energy operations such as electric generation and natural gas distribution. With respect to commodity price risks associated with electric generation, Duke Energy Ohio is exposed to changes including, but not limited to, the cost of coal and natural gas used to generate electricity, the prices of electricity in wholesale markets, the cost of capacity required to purchase and sell electricity in wholesale markets and the cost of emission allowances for SO2, seasonal NOX and annual NOX, primarily at Duke Energy Ohio’s coal fired power plants. Duke Energy Ohio closely monitors the risks associated with commodity price changes on its future operations and, where appropriate, uses various commodity contracts to mitigate the effect of such fluctuations on operations. Duke Energy Ohio’s exposure to commodity price risk is influenced by a number of factors, including, but not limited to, the term of the contract, the liquidity of the market and delivery location.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

10. Risk Management Instruments

As discussed in Note 1, on January 1, 2008,Commodity derivatives associated with the risk management of Duke Energy Ohio’s energy operations are accounted for as either cash flow hedges or fair value hedges if the derivative instrument qualifies as a hedge under SFAS No. 133, or as an undesignated contract if either the derivative instrument does not qualify as a hedge or Duke Energy Ohio adopted FSPhas elected to not designate the contract as a hedge. Additionally, Duke Energy Ohio enters into various contracts that qualify for the normal purchase and normal sales (NPNS) exception described in paragraph 10 of SFAS No. FIN 39-1. 133, as amended. Duke Energy Ohio primarily applies the NPNS exception to contracts within the Franchised Electric and Gas and Commercial Power business segments that relate to the physical delivery of electricity over the next 5 years.

Commodity Fair Value Hedges.At March 31, 2009, Duke Energy Ohio did not have any open commodity derivative instruments that were designated as fair value hedges under SFAS No. 133.

Commodity Cash Flow Hedges. Duke Energy Ohio uses commodity instruments, such as swaps, futures, forwards and options, to protect margins for a portion of future revenues and fuel and purchased power expenses. Duke Energy Ohio generally uses commodity cash flow hedges to mitigate exposures to the price variability of the underlying commodities for a maximum period of 1 year.

Undesignated Contracts. Duke Energy Ohio uses derivative contracts as economic hedges to manage the market risk exposures that arise from providing electric generation and capacity to large energy customers, energy aggregators and other wholesale companies. Undesignated contracts include contracts not designated as a hedge, contracts that do not qualify for hedge accounting, derivatives that no longer qualify for the NPNS scope exception, and de-designated hedge contracts that were not re-designated as a hedge. The contracts in this category as of March 31, 2009 are primarily associated with forward power sales and coal purchases, as well as forward SO2emission allowances, for the Commercial Power and Franchised Electric and Gas business segments.

Interest Rate Risk

Duke Energy Ohio is exposed to risk resulting from changes in interest rates as a result of its issuance or anticipated issuance of variable and fixed-rate debt and commercial paper. Duke Energy Ohio manages its interest rate exposure by limiting its variable-rate exposures to a percentage of total capitalization and by monitoring the effects of market changes in interest rates. To manage risk associated with changes in interest rates, Duke Energy Ohio may enter into financial contracts, primarily interest rate swaps and U.S. Treasury lock agreements. All of Duke Energy Ohio’s derivative instruments related to interest rate risk are categorized as undesignated contracts. At March 31, 2009, the total notional amount of Duke Energy Ohio’s receive variable/pay-fixed interest rate swaps was approximately $27 million.

Volumes

The following table shows information relating to the volume of Duke Energy Ohio’s derivative activity as of March 31, 2009. Amounts disclosed represent the notional volumes of commodities and the notional dollar amounts of debt subject to derivative contracts accounted for at fair value in accordance with SFAS No. 133. For option contracts, notional amounts include only the delta-equivalent volumes which represent the notional volumes times the probability of exercising the option based on current price volatility. Volumes associated with contracts qualifying for the NPNS exception have been excluded from the table below. Amounts disclosed represent the absolute value of notional amounts. Duke Energy Ohio has netted contractual amounts where offsetting purchase and sale contracts exist with identical delivery locations and times of delivery.

Underlying Notional Amounts for Derivative Instruments Accounted for At Fair Value

   March 31, 2009

Commodity contracts

    

Electricity-energy (Gigawatt hours)

   4,370

Electricity-capacity (Gigawatt months)

   2

Emission allowances: SO2 (thousands of tons)

   18

Emission allowances: NOX(thousands of tons)

   4

Natural gas (millions of decatherms)

   9

Coal (millions of tons)

   3

Financial contracts

    

Interest rates (dollars in millions)

  $27

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

The following table shows fair value amounts of derivative contracts as of March 31, 2009 and the line item(s) in the Consolidated Balance Sheets in which such amounts are included. The fair values of derivative contracts are presented on a gross basis, even when the derivative instruments are subject to master netting arrangements. Cash collateral payables and receivables associated with the derivative contracts have not been netted against the fair value amounts.

Location and Fair Value Amounts of Derivatives reflected in the Consolidated Balance Sheets

   March 31, 2009

Balance Sheet Location


  Asset
Derivatives


  Liability
Derivatives


   (in millions)

Derivatives designated as hedging instruments under SFAS No. 133

        

Commodity contracts

        

Investments and Other Assets: Other

  $1  $

Current Liabilities: Other

      4
   

  

Total derivatives designated as hedging instruments under SFAS No. 133

  $1  $4
   

  

Derivatives not designated as hedging instruments under SFAS No. 133

        

Commodity contracts

        

Current Assets: Other

  $55  $12

Investments and Other Assets: Other

   23   6

Current Liabilities: Other

   223   326

Deferred Credits and Other Liabilities: Other

   23   121

Interest rate contracts

        

Current Liabilities: Other

      1

Deferred Credits and Other Liabilities: Other

      6
   

  

Total derivatives not designated as hedging instruments under SFAS No. 133

  $324  $472
   

  

Total Derivatives

  $325  $476
   

  

The following table shows the amount of the gains and losses recognized on derivative instruments designated and qualifying as cash flow hedges by type of derivative contract during the three months ended March 31, 2009 and the financial statement line items in which such gains and losses are included.

Cash Flow Hedges—Location and Amount of Pre-tax Losses Recognized in Comprehensive Income

   Three Months Ended
March 31,
2009


 
   (in millions) 

Location of Pre-tax Losses Reclassified from AOCI into Earnings(a)

     

Commodity contracts

     

Revenue, non-regulated electric and other

  $(7)

Fuel used in electric generation and purchased power-non-regulated

   (6)
   


Total Pre-tax Losses Reclassified from AOCI into Earnings

  $(13)
   


(a)Represents the gains and losses on cash flow hedges previously recorded in AOCI during the term of the hedging relationship and reclassified into earnings during the current period.

The effective portion of gains on cash flow hedges that were recognized in AOCI during the three months ended March 31, 2009 were insignificant. In addition, there was no hedge ineffectiveness during the three months ended March 31, 2009. No gains or losses have been excluded from the assessment of hedge effectiveness. As of March 31, 2009, approximately $11 million of pre-tax deferred net losses on derivative instruments related to commodity cash flow hedges accumulated on the Consolidated Balance Sheets in AOCI are expected to be recognized in earnings during the next twelve months as the hedged transactions occur.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

The following table shows the amount of the pre-tax gains and losses recognized on undesignated hedges by type of derivative instrument during the three months ended March 31, 2009 and the line item(s) in the Consolidated Statements of Operations in which such gains and losses are included or deferred on the Consolidated Balance Sheets as regulatory assets.

Undesignated Hedges—Location and Amount of Pre-tax Gains and (Losses)

Recognized in Income or as Regulatory Assets

   Three Months Ended
March 31,
2009


 
   (in millions) 

Location of Pre-tax Gains and (Losses) Recognized in Earnings

     

Commodity contracts

     

Revenue, non-regulated electric and other

  $8 

Fuel used in electric generation and purchased power-non-regulated

   (8)
   


Total Pre-tax Gains and (Losses) Recognized in Earnings

  $ 
   


Location of Pre-tax Gains and (Losses) Recognized as Regulatory Assets

     

Commodity contracts

     

Regulatory Asset

  $(77)

Interest rate contracts

     

Regulatory Asset

   1 
   


Total Pre-tax Losses Recognized as Regulatory Assets

  $(76)
   


Certain of Duke Energy Ohio’s derivative contracts contain contingent credit features, such as material adverse change clauses or payment acceleration clauses that could result in immediate payments, the posting of letters of credit or the termination of the derivative contract before maturity if specific events occur, such as a downgrade of Duke Energy Ohio’s credit rating below investment grade.

The following table shows information with respect to derivative contracts that are in a net liability position and contain objective credit-risk related payment provisions. The amounts disclosed in the table below represents the aggregate fair value amounts of such derivative instruments at the end of the reporting period, the aggregate fair value of assets that are already posted as collateral under such derivative instruments at the end of the reporting period, and the aggregate fair value of additional assets that would be required to be transferred in the event that credit-risk-related contingent features were triggered at March 31, 2009.

Information Regarding Derivative Instruments that Contain Credit-risk Related Contingent Features

   March 31,
2009


   (in millions)

Aggregate Fair Value Amounts of Derivative Instruments in a Net Liability Position

  $440

Collateral Already Posted

  $219

Additional Cash Collateral or Letters of Credit in the Event Credit-risk-related Contingent Features were Triggered at the End of the Reporting Period

  $26

Netting of cash collateral and derivative assets and liabilities under master netting arrangements.In accordance with FSPFASB Staff Position (FSP) No. FIN 39-1,Amendment of FASB Interpretation No 39, Offsetting of Amounts Related to Certain Contracts” (FSP No. FIN 39-1), Duke Energy Ohio offsets fair value amounts (or amounts that approximate fair value) recognized on its Consolidated Balance Sheets related to cash collateral amounts receivable or payable against fair value amounts recognized for derivative instruments executed with the same counterparty under the same master netting agreement. Amounts presented in the table below exclude cash collateral amounts which are disclosed separately in Note 1.

The following table shows the carrying value of Duke Energy Ohio’s derivative portfolio as of September 30, 2008,At March 31, 2009 and December 31, 2007.

Net Derivative Portfolio Assets (Liabilities) reflected2008, Duke Energy Ohio had receivables related to the right to reclaim cash collateral of approximately $162 million and $85 million, respectively, and had payables related to obligations to return cash collateral of an insignificant amount, respectively, that have been offset against net derivative positions in the Consolidated Balance Sheets:

   September 30,
2008


  December 31,
2007


 
   (in millions) 

Hedging

  $(14) $(23)

Undesignated

   35   7 
   


 


Total

  $21  $(16)
   


 


The amounts in the table above represent the combination of assets and (liabilities) for unrealized gains and losses on mark-to-market and hedging transactions on Duke Energy Ohio’s Consolidated Balance Sheets.

The $9 million change in the fair value of the hedging portfolio is due primarily to a gain on cash flow hedges at Commercial Power.

The $28 million increase in the undesignated derivative portfolio fair value is due primarily to unrealized mark-to-market gains within Commercial Power, which primarily consists of in-the-money contracts to purchase coal as a result of higher coal prices at September 30, 2008 as compared to December 31, 2007.

During the three and nine months ended September 30, 2008, Duke Energy Ohio included in earnings approximately $128had $60 million of pre-tax losses and approximately $28$57 million of pre-tax gains,in cash collateral receivables under master netting arrangements that have not been offset against net derivative positions at March 31, 2009 and December 31, 2008, respectively, as these amounts primarily represent initial margin deposits related to mark-to-market adjustments on derivative contracts that do not qualify for hedge accounting. Duke Energy Ohio included in earnings approximately $4 million of pre-tax gains and an insignificant amount during the three and nine months ended September 30, 2007, respectively, related to mark-to-market adjustments on derivative contracts that do not qualify for hedge accounting. These amounts, which relate to the balances included within undesignated in the above table, primarily represent the mark-to-market impacts of derivative contracts used in Duke Energy Ohio’s hedging of a portion of the economic value of its generation assets in Commercial Power.

Commodity Cash Flow Hedges.As of September 30, 2008, approximately $30 million of the pre-tax unrealized net losses on derivative instruments related to commodity cash flow hedges included on the Consolidated Balance Sheet in Accumulated Other Comprehensive Loss are expected to be recognized in earnings during the next 12 months as the hedged transactions occur. However, due to the volatility of the commodities markets, the corresponding values in Accumulated Other Comprehensive Loss will likely change prior to their reclassification into earnings.New York Mercantile

No gains or losses due to hedge ineffectiveness were recorded during the three and nine months ended September 30, 2008 and 2007, respectively. The amount recognized for transactions that no longer qualified as cash flow hedges was insignificant for the three and nine months ended September 30, 2008 and September 30, 2007, respectively.

See Note 13 for additional information related to the fair value of Duke Energy Ohio’s derivative instruments.

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11. Regulatory Matters

Regulatory Merger Approvals

On April 3, 2006, the merger between Duke Energy and Cinergy was consummated to create a newly formed company, Duke Energy Holding Corp. (subsequently renamed Duke Energy Corporation). As a condition to the merger approval, the PUCO and the Kentucky Public Service Commission (KPSC) required that certain merger related savings be shared with consumers in Ohio and Kentucky, respectively. The commissions also required Duke Energy Ohio and Duke Energy Kentucky to meet additional conditions. Key elements of these conditions include:

The PUCO required that Duke Energy Ohio provide (i) a rate reduction of approximately $15 million for one year to facilitate economic development in a time of increasing rates and market prices and (ii) a reduction of approximately $21 million to its gas and electric consumers in Ohio for one year, with both credits beginning January 1, 2006. During the first quarter of 2007, Duke Energy Ohio completed its merger related rate reductions and filed a report with the PUCO to terminate the merger credit riders. Approximately $2 million of the rate reductions was passed through to customers during the nine months ended September 30, 2007.

The KPSC required that Duke Energy Kentucky provide $8 million in rate reductions to its customers over five years, ending when new rates are established in the next rate case after January 1, 2008. Less than $1 million and approximately $2 million of the rate reduction was passed through to customers during the three and nine months ended both September 30, 2008 and 2007, respectively.

The FERC approved the merger without conditions.

Restrictions on the Ability of Duke Energy Ohio to Make Dividends, Advances and Loans to Duke Energy Corporation.As a condition of approving the merger of Duke Energy and Cinergy, the state utility commissions imposed conditions (the Merger Conditions) on the ability of Duke Energy Ohio and Duke Energy Kentucky to transfer funds to Duke Energy through loans or advances, as well as restricted amounts available to pay dividends to Duke Energy. Duke Energy Ohio will not declare and pay dividends out of capital or unearned surplus without the prior authorization of the PUCO. Duke Energy Kentucky is required to pay dividends solely out of retained earnings and to maintain a minimum of 35% equity in its capital structure. At September 30, 2008,Exchange (NYMEX) futures contracts. Duke Energy Ohio had restrictedinsignificant cash collateral payables under master netting arrangements that have not been offset against net assets of approximately $6.3 billion that may not be transferredderivative positions at March 31, 2009 and December 31, 2008.

See Note 12 for additional information on fair value disclosures related to Duke Energy without appropriate approval based on the aforementioned Merger Conditions.derivatives required by SFAS No. 157, “Fair Value Measurements” (SFAS No. 157).

 

10. Regulatory Matters

Franchised Electric and GasGas.

Rate Related Information. The KPSC approves rates for retail electric and gas services within the Commonwealth of Kentucky. The PUCO approves rates and market prices for retail gas and electric service within the state of Ohio, except that non-regulated sellers of gas and electric generation also are allowed to operate in Ohio (see “Commercial Power” below). The FERC approves rates for electric sales to wholesale customers served under cost-based and market-based rates.

Duke Energy Ohio Electric Rate Filings. Duke Energy Ohio operates under a RSP, a MBSSO approved by the PUCO in November 2004. In March 2005, the Office of the Ohio Consumers’ Counsel (OCC) appealed the PUCO’s approval of the MBSSO to the Supreme Court of Ohio which issued its decision in November 2006. It upheld the MBSSO in virtually every respect but remanded to the PUCO on two issues. The Supreme Court of Ohio ordered the PUCO to support a certain portion of its order with reasoning and record evidence and to require Duke Energy Ohio to disclose certain confidential commercial agreements with other parties previously requested by the OCC. Duke Energy Ohio has complied with the disclosure order.

In October 2007, the PUCO issued its ruling affirming the MBSSO, with certain modifications, and maintained the current price. The ruling provided for continuation of the existing rate components, including the recovery of costs related to new pollution control equipment and capacity costs associated with power purchase contracts to meet customer demand, but provided customers an enhanced opportunity to avoid certain pricing components if they are served by a competitive supplier. The ruling also attempted to modify the statutory requirement that Duke Energy Ohio transfer its generating assets to an exempt wholesale generator (EWG) and ordered Duke Energy Ohio to retain ownership for the remainder of the RSP period. The ruling also incorrectly implied that Duke Energy Ohio’s nonresidential RTC will terminate at the end of 2008. On November 23, 2007, Duke Energy Ohio filed an application for rehearing on the portions of the PUCO’s ruling relating to whether certain pricing components may be avoided by customers, the right to transfer generating assets, and the termination date of the RTC. On December 19, 2007, the PUCO issued its Entry on Rehearing granting in part and

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denying in part Duke Energy Ohio’s Application for Rehearing. Among other things, the PUCO modified and clarified the applicability of various rate riders during customer shopping situations. It also clarified that the residential RTC terminates at the end of 2008 and that the nonresidential RTC terminates at the end of 2010 and agreed to give further consideration to whether Duke Energy Ohio may transfer its generating assets to an EWG.

On February 15, 2008, Duke Energy Ohio filed a notice of appeal with the Ohio Supreme Court challenging a portion of the PUCO’s decision on remand regarding Duke Energy Ohio’s RSP. The October 2007 order permits non-residential customers to avoid certain charges associated with the costs of Duke Energy Ohio standing ready to serve such customers if they return after being served by another supplier. Duke Energy Ohio believes the PUCO exceeded its authority in modifying the charges that may be avoided, resulting in Duke Energy Ohio having to subsidize Ohio’s competitive electric market. Duke Energy Ohio has asked the Ohio Supreme Court to reverse the PUCO ruling and require that non-residential customers pay the charges associated with Duke Energy Ohio standing ready to serve them should they return from a competitive supplier. On March 28, 2008, Duke Energy Ohio voluntarily withdrew its appeal. The OCC filed a notice of appeal challenging the PUCO’s October 2007 decision as unlawful and unreasonable. The OCC and Ohio Partners for Affordable Energy (OPAE) also filed appeals from the PUCO’s November 20, 2007 order approving Duke Energy Ohio’s MBSSO riders. Duke Energy Ohio has intervened in each appeal. Pending the Ohio Supreme Court’s consideration of its initial appeal, the OCC requested that the PUCO stay implementation of the Infrastructure Maintenance Fund charge to be collected from customers approved in the October 2007 order. The Commission denied the OCC’s request and the OCC filed a similar request with the Ohio Supreme Court. On July 9, 2008, the court denied the OCC’s request to stay implementation of the Infrastructure Maintenance Fund. On April 30, 2008, the Ohio Supreme Court granted Duke Energy Ohio’s motion to intervene in the OCC’s appeal. At this time, Duke Energy Ohio cannot predict whether the Ohio Supreme Court will reverse the PUCO’s October 2007 decision. Additionally, Duke Energy Ohio cannot predict the outcome of the MBSSO rider appeal.

New legislation (SB 221) was passed on April 23, 2008 and signed by the Governor of Ohio on May 1, 2008. The new law codifies the PUCO’s authority to approve an electric utility’s standard service offer through an electric security plan (ESP),ESP, which would allow for pricing structures similar to those under the current MBSSO.historic RSP. Electric utilities are required to file an ESP and may also file an application for a market rate option (MRO)MRO at the same time. The MRO is a price determined through a competitive bidding process. If a MRO price is approved, the utility would blend in the MBSSORSP or ESP price with the MRO price over a six- to ten-year period, subject to the PUCO’s discretion. SB 221 provides for the PUCO to approve non-by-passable charges for new generation, including construction work-in-process from the outset of construction, as part of an ESP. The new law grants the PUCO discretion to approve single issue rate adjustments to distribution and transmission rates and establishes new alternative energy resources (including renewable energy) portfolio standards, such that the utility’s portfolio must consist of at least 25% of these resources by 2025. SB 221 also provides a separate requirement for energy efficiency, which must reduce 22% of a utility’s load by 2025. The utility’s earnings under the ESP can be subject to an annual earnings test and the PUCO must order a refund if it finds that the utility’s earnings significantly exceed the earnings of benchmark companies with similar business and financial risks. The earnings test acts as a cap to the ESP price. SB 221 also limits the ability of a utility to transfer its designated generating assets to an EWGexempt wholesale generator absent PUCO approval.

On July 31, 2008, Duke Energy Ohio filed a new generation pricing formula to be effective January 1, 2009, when the current RSP is scheduled to expire.expired. Among other things, the plan provides pricing mechanisms for compensation related to the advanced energy, renewablesrenewable energy supply and energy efficiency portfolio standards established by SB 221.

On October 27, 2008, Duke Energy Ohio filed a Stipulation and Recommendation (Stipulation) for consideration by the PUCO regarding Duke Energy Ohio’s July 31, 2008 ESP filing. The Stipulation reflects agreement on all but two issues in this proceeding and iswas filed with the support of most of the parties to this proceeding. In addition to the Stipulation, the ability for residential governmental aggregation customers to avoid certain charges and to receive a shopping credit will bewas presented to the PUCO for a ruling. Parties to this proceeding who dodid not support the Stipulation maywere free to litigate any, or all, issues.

The Stipulation agrees to a net increase in base generation revenues of approximately $36 million, $74 million and $98 million in 2009, 2010 and 2011, respectively, including termination of the residential and non-residential RTC. Such amounts result in a residential net rate increase of 2% in 2009 and in 2010, and a non-residential net rate increase of 2% in 2009, 2010 and 2011. The Stipulation also allows the recovery of expenditures incurred to deploy SmartGrid infrastructure modernization technology on the distribution system. The recovery of such expenditures, net of savings, is subject to an annual residential revenue cap. Further, the Stipulation allows for the implementation of a new energy efficiency compensation model, referred to as Save-A-Watt,save-a-watt, to achieve the energy efficiency mandate

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pursuant to the recent electric energy legislation. The criteria customers must meet to be exempt from Duke Energy Ohio’s program willwas also be presented to the PUCO for a ruling in this case. Also, under the Stipulation, Duke Energy Ohio may defer up to $50 million of certain operation and maintenance costs incurred at the W.C. Beckjord generating station and amortize such costs over a three-year period.

The PUCO will consider the Stipulation and hear evidence beginningESP hearing occurred on November 10, 2008. On December 17, 2008, the PUCO issued its finding and order resolving the two litigated issues and adopting a modified Stipulation. Specifically, the PUCO modified the Stipulation to permit certain non-residential customers to opt out of utility-sponsored energy efficiency initiatives and to allow residential governmental aggregation customers who leave Duke Energy Ohio’s system to avoid some charges. Applications for rehearing of the PUCO’s decision have been filed by environmental groups and a residential customer advocate group. On February 11, 2009, the PUCO issued an Entry denying the rehearing requests. On April 13, 2009, the Office of the Ohio Consumers’ Counsel (OCC) filed a notice of appeal to the Ohio Supreme Court, challenging the

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PUCO’s interpretation of the system-reliability-adjustment capacity dedication rider (SRA-CD). The OCC claims that the PUCO incorrectly determined that SRA-CD is unavoidable for residential governmental aggregation customers. Duke Energy Ohio has moved to intervene as an appellee in the proceeding.

As discussed further below within “Commercial Power” and in Note 1, as a result of the approval of the ESP, effective December 17, 2008, Commercial Power reapplied the provisions of SFAS No. 71 to certain portions of its operations.

Duke Energy Ohio Gas Rate Case. In July 2007, Duke Energy Ohio filed an application with the PUCO for an increase in its base rates for gas service. Duke Energy Ohio sought an increase of approximately $34 million in revenue, or approximately 5.7%, to be effective in the spring of 2008. The application also requested approval to continue tracker recovery of costs associated with the accelerated gas main replacement program. The staff of the PUCO issued a Staff Report in December 2007 recommending an increase of approximately $14 million to $20 million in revenue. The Staff Report also recommended approval for Duke Energy Ohio to continue tracker recovery of costs associated with the accelerated gas main replacement program. On February 28, 2008, Duke Energy Ohio reached a settlement agreement with the PUCO Staff and all of the intervening parties on its request for an increase in natural gas base rates. The settlement called for an annual revenue increase of approximately $18 million in base revenue, or 3% over current revenue, permitted continued recovery of costs through 2018 for Duke Energy Ohio’s accelerated gas main replacement program and permitted recovery of carrying costs on gas stored underground via its monthly gas cost adjustment filing. The settlement did not resolve a proposed rate design for residential customers, which involved moving more of the fixed charges of providing gas service, such as capital investment in pipes and regulating equipment, billing and meter reading, from the per unit charges to the monthly charge. On May 28, 2008, the PUCO approved the settlement in its entirety and the proposed rate design. On June 28, 2008, the OCC and OPAEOhio Partners for Affordable Energy (OPAE) filed Applications for Rehearing opposing the rate design. On July 23, 2008, the Ohio Commission issued an Entry denying the rehearing requests of OCC and OPAE. On September 16 and 19, 2008, respectively, the OCC and OPAE filed their notices of appeal to the Ohio Supreme Court opposing the residential rate design issue. Merit briefs were filed with the Ohio Supreme Court on February 2, 2009. On April 17, 2009, and after providing the required notice to the PUCO, the OCC filed a motion to stay implementation of Stage 3 of the rate design, which was approved to take effect on June 1, 2009. Duke Energy Ohio filed a memorandum in opposition to this request on April 27, 2009. At this time, Duke Energy Ohio cannot predict whether the Ohio Supreme Court will reverse the PUCO’s decision of May 28, 2008.

Duke Energy Ohio Electric Distribution Rate Case. On June 25, 2008, Duke Energy Ohio filed notice with the PUCO that it will seek a rate increase for electric delivery service of approximately $86 million, or 4.8% on total electric revenues, to be effective in the second quarter of 2009. Among other things, the rate request includes a proposal to increase the monthly residential customer charge from $4.50 to $10, with an offsetting reduction in the usage-based charge. This change in rate design will make customer bills more even throughout the year.On December 22, 2008, Duke Energy Ohio also proposesfiled an application requesting deferral of approximately $31 million related to damage to its distribution system from a distribution modernization tracker that would allow smaller annual increasesSeptember 14, 2008 windstorm. On January 14, 2009, the PUCO granted Duke Energy Ohio’s deferral request. Accordingly, a regulatory asset was recorded as of December 31, 2008 for $31 million. On March 31, 2009, Duke Energy Ohio and Parties to reflect increased investmentthe case filed a Stipulation and Recommendation which settles all issues in the delivery system.case. The rate case test period mayStipulation provides for a revenue increase of $55.3 million or approximately a 2.9% overall increase. The Parties also agreed that Duke Energy Ohio will recover any approved costs associated with the September 14, 2008 wind storm restoration through a separate rider recovery mechanism. Duke Energy Ohio agreed to file a separate application to set the rider and the PUCO will review the request and determine the appropriate amount of storm costs that should be updatedrecovered. The Stipulation includes, among other things, a weatherization and energy efficiency program, and recovery of uncollectible expenses through a rider mechanism. The Stipulation is subject to reflect certain expenses, such as costs related to storm damage.approval by the PUCO.

Duke Energy Kentucky Gas Rate Cases. In 2002, the KPSC approved Duke Energy Kentucky’s gas base rate case which included, among other things, recovery of costs associated with an accelerated gas main replacement program. The approval authorized a tracking mechanism to recover certain costs including depreciation and a rate of return on the program’s capital expenditures. The Kentucky Attorney General appealed to the Franklin Circuit Court the KPSC’s approval of the tracking mechanism as well as the KPSC’s subsequent approval of annual rate adjustments under this tracking mechanism. In 2005, both Duke Energy Kentucky and the KPSC requested that the court dismiss these cases.

In February 2005, Duke Energy Kentucky filed a gas base rate case with the KPSC requesting approval to continue the tracking mechanism and for a $14 million annual increase in base rates. A portion of the increase is attributable to recovery of the current cost of the accelerated gas main replacement program in base rates. In June 2005, the Kentucky General Assembly enacted Kentucky Revised Statue 278.509 (KRS 278.509), which specifically authorizes the KPSC to approve tracker recovery for utilities’ gas main replacement programs. In December 2005, the KPSC approved an annual rate increase of $8 million and re-approved the tracking mechanism through

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2011. In February 2006, the Kentucky Attorney General appealed the KPSC’s order to the Franklin Circuit Court, claiming that the order improperly allows Duke Energy Kentucky to increase its rates for gas main replacement costs in between general rate cases, and also claiming that the order improperly allows Duke Energy Kentucky to earn a return on investment for the costs recovered under the tracking mechanism which permits Duke Energy Kentucky to recover its gas main replacement costs.

In August 2007, the Franklin Circuit Court consolidated all the pending appeals and ruled that the KPSC lacks legal authority to approve the gas main replacement tracking mechanism, and any other annual rate adjustments under the tracking mechanism.which were approved prior to enactment of KRS 278.509. To date, Duke Energy Kentucky has collected approximately $9 million in annual rate adjustments under the tracking mechanism and continuesmechanism. Per the KPSC order, Duke Energy Kentucky collected these revenues subject to utilize tracking mechanisms in its billed rates to customers.refund pending the final outcome of this litigation. Duke Energy Kentucky and the KPSC appealed these cases to the Kentucky Court of Appeals. In November 2008,have requested that the Kentucky Court of Appeals ruled thatgrant a rehearing of its decision. On February 5, 2009, the KPSC had no legal authority to approve tracker recoveryKentucky Court of gas main replacement costs prior to 2005.Appeals denied the rehearing requests of both Duke Energy Kentucky is evaluatingand the KPSC. Duke Energy Kentucky filed a motion for discretionary review to the Kentucky Supreme Court on March 9, 2009. At this ruling andtime, Duke Energy Kentucky cannot predict whether the outcome of these proceedings.

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Kentucky Supreme Court will accept the case for review.

Energy Efficiency.On July 11, 2007, the PUCO approved Duke Energy Ohio’s Demand Side Management/Energy Efficiency Program (DSM Program). A series ofThe DSM Programsprograms were first proposed in 2006 and were endorsed by the Duke Energy Community Partnership, which is a collaborative group made up of representatives of organizations interested in energy conservation, efficiency and assistance to low-income customers. The program costs are recouped through a cost recovery mechanism that will be adjusted annually to reflect the previous year’s activity. Duke Energy Ohio is permitted to recover lost revenues, program costs and shared savings (once the programs reach 65% of the targeted savings level) through the cost recovery mechanism based upon impact studies to be provided to the Staff of the PUCO. Duke Energy Ohio filed the Save-A-Wattsave-a-watt Energy Efficiency Plan as part of its ESP filed with the PUCO on July 31, 2008 (discussed above). A Stipulation and Recommendation for consideration by the PUCO regarding Duke Energy Ohio’s ESP filing, including implementation of Save-A-Watt,save-a-watt, was filed on October 27, 2008. The ESP hearing occurred on November 10, 2008. A decision onOn December 17, 2008, the stipulation is expectedPUCO approved the ESP, including allowing for the implementation of a new save-a-watt energy efficiency compensation model. However, the PUCO determined that certain non-residential customers may opt out of Duke Energy Ohio’s energy efficiency initiative. Applications for rehearing of this issue were denied by the endPUCO and no further appeals of the year.this issue have been taken.

On November 15, 2007, Duke Energy Kentucky filed its annual application to continue existing energy efficiency programs, consisting of nine residential and two commercial and industrial programs, and to true-up its gas and electric tracking mechanism for recovery of lost revenues, program costs and shared savings. On February 11, 2008, Duke Energy Kentucky filed a motion to amend its energy efficiency programs and applied to reinstitute a low income Home Energy Assistance Program. The KPSC bifurcated the proposed Home Energy Assistance Program from the other energy efficiency programs. On May 14, 2008, the KPSC approved the energy efficiency programs. On September 25, 2008, the KPSC approved Duke Energy Kentucky’s Home Energy Assistance program, making it available for customers at or below 150% of the federal poverty level.

Other Matters On December 1, 2008, Duke Energy Kentucky filed an application for a save-a-watt Energy Efficiency Plan. The application seeks a new energy efficiency recovery mechanism similar to what was proposed in Ohio. Intervenor testimony is due on May 11, 2009. An evidentiary hearing with the KPSC is expected to occur in the third quarter of 2009.

Ohio Riser Leak Investigation. In April 2005, the PUCO issued an order opening a statewide investigation into riser leaks in gas pipeline systems throughout Ohio. The investigation followed four explosions since 2000 caused by gas riser leaks, including an April 2000 explosion in Duke Energy Ohio’s service area. In November 2006, the PUCO Staff released the expert report, which concluded that certain types of risers are prone to leaks under various conditions, including over-tightening during initial installation. The PUCO Staff recommended that natural gas companies continue to monitor the situation and study the cause of any further riser leaks to determine whether further remedial action is warranted. As of January 1, 2009, Duke Energy Ohio hashad approximately 87,00080,000 of these risers on its distribution system. If the PUCO orders natural gas companies to replace all of these risers, Duke Energy Ohio estimates a replacement cost of approximately $40 million. As part of the rate case filed in July 2007 (see “Duke Energy Ohio Gas Rate Case” above), Duke Energy Ohio requested approval from the PUCO to accelerate its riser replacement program. The riser replacement program is contained in the settlement reached with all intervenors and willexpected to be completed at the end of 2012.

Ohio Smart Metering Evaluation.In December 2005, the PUCO initiated an investigation into implementing certain provisions of the Energy Policy Act of 2005, including whether to adopt a statewide standard for implementing smart metering. After an investigation, the PUCO issued a March 2007 order requiring all electric utilities to offer tariffs to all customer classes which are differentiated, at a minimum, based on on-peak and off-peak wholesale price periods. The PUCO noted that time-of-use meters should be available for customers subscribing to these tariffs. The order instructed PUCO Staff to conduct workshop meetings to study the costs/benefits of deploying smart metering. These workshop meetings are in progress. At this time, Duke Energy Ohio cannot predict the outcome of this proceeding.

Midwest Independent Transmission System Operator, Inc. (Midwest ISO) Resource Adequacy Filing. On December 28, 2007, the Midwest ISO filed its Electric Tariff Filing Regarding Resource Adequacy in compliance with the FERC’s request of Midwest ISO to file Phase II of its long-term Resource Adequacy plan by December 2007. The proposal includes establishment of a resource adequacy requirement in the form of planning reserve margin. On March 26, 2008, the FERC ruled on the Midwest ISO’s Resource Adequacy filing

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and ordered that the new Module E tariff be effective March 27, 2008. This action established a Midwest ISO-wide resource adequacy requirement for the first Planning Year, which begins June 2009. In the Order, the FERC, among other things, clarified that States have the authority to set their own Planning Reserve Margins, as long as they are not inconsistent with any reliability standard approved by the FERC. Duke Energy Ohio does not believe the resource adequacy requirement will have a material impact on its consolidated results of operations, cash flows or financial position.

Midwest ISO’s Establishment of an Ancillary Services Market.Market (ASM). On February 25, 2008, the FERC conditionally accepted the Midwest ISO proposal to implement a day-ahead and real-time ancillary services market (ASM),ASM, including a scarcity pricing proposal. By approving the ASM proposal, the FERC essentially approved the transfer and consolidation of Balancing Authoritybalancing authority for the entire Midwest

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ISO area. This will allow the Midwest ISO to determine operating reserve requirements and procure operating reserves from all qualified resources from an organized market, in place of the current system of local management and procurement of reserves by the 24 Balancing Authorities.balancing authorities in the Midwest ISO area. The Midwest ISO delayedlaunched the ASM launch date, previously scheduled for September 9, 2008 toon January 6, 2009. At this time, Duke Energy Ohio does not believe the establishment of the Midwest ASM will have a material impact on its consolidated results of operations, cash flows or financial position.

 

Commercial PowerPower.

ReportedAs discussed in Note 1, effective December 17, 2008, Commercial Power reapplied the provisions of SFAS No. 71 to certain portions of its operations due to the passing of SB 221 and the PUCO’s approval of the ESP. However, since certain portions of Commercial Power’s operations are not subject to regulatory accounting pursuant to SFAS No. 71, reported results for Commercial Power are subject to volatility due to the over- or under-collection of certain costs including fuel and purchased power, sincefor which recovery is not automatic under the ESP. Commercial Power is not subject to regulatory accounting pursuant to SFAS No. 71. In addition, Commercial Power couldmay be impacted by certain of the regulatory matters discussed above, including the Duke Energy Ohio electric rate filings.

FERC 203 Application. On April 23, 2008 (supplemented on May 6, 2008), Duke Energy Ohio and certain affiliates filed an application with the FERC requesting approval to transfer Duke Energy Ohio’s electric generating facilities, some of which are designated to serve Ohio customers, to affiliate companies. The FERC filing, if approved, does not obligate Duke Energy to make the transfer of the electric generating facilities, and does not impact Duke Energy Ohio’s current rates. On October 10, 2008, Duke Energy Ohio and affiliates filed a notice with the FERC reporting that Duke Energy Ohio iswas in settlement discussions with all parties in the Ohio proceeding regarding Duke Energy Ohio’s application to establish an ESP, as discussed above. Duke Energy Ohio advised the FERC that it believes that in light of those discussions good cause exists for the FERC to extend the time to consider Duke Energy Ohio’s Section 203 application. On October 17, 2008, the FERC issued an order extending the time for the FERC to act on the application by 180 additional days, and ordered Duke Energy Ohio to inform the FERC of the status of settlement discussions by November 16, 2008. The settlement in Ohio has been agreed to by most parties and was filed with the PUCO on October 27, 2008. Pursuant toAs part of the settlement ifthat was approved by the PUCO on December 17, 2008 (see discussion above) Duke Energy Ohio agreesagreed to withdraw that portion of its application for approval related to the transfer of its generating facilities designated to serve Ohio customers. Acceptance of the settlement bycustomers and the PUCO would constitute its approvalapproved of the transfer for the remaining generating facilities. Duke Energy Ohio filed a new application requesting FERC approval to transfer to affiliate companies only the remaining generating facilities not designated to serve Ohio customers, which was conditionally approved by the FERC on February 19, 2009. As a condition of approval, the FERC requires that all acquisition premiums related to generating assets being transferred to an affiliate of Duke Energy be removed from Duke Energy Ohio’s financial statements when Duke Energy Ohio submits its final accounting entries and that any debt associated with the generation assets being transferred be transferred to the generating facility before Duke Energy Ohio submits its final accounting entries. In addition, the FERC will hold Duke Energy Ohio to its commitments to not pay taxes associated with the proposed transaction, to maintain a minimum equity to total capital ratio of 30%, and to retain an amount of debt that will accommodate the preservation of Duke Energy Ohio’s current credit ratings.

PJM Interconnection Reliability Pricing Model (RPM) Buyers’ Complaint.On May 30, 2008, a group of public utility commissions, state consumer counsels, industrial power customers and load serving entities, known collectively as the RPM Buyers, filed a complaint at the FERC. The complaint asks the FERC to find that the results of the three transitional base residual auctions conducted by PJM to procure capacity for its RPM capacity market during the years 2008-2011 are unjust and unreasonable because, allegedly, they have produced excessive capacity prices, have failed to prevent suppliers from exercising market power, and have not produced benefits commensurate with costs. In their complaint, the RPM Buyers propose revised, administratively determined auction clearing prices. Certain Duke Energy Ohio revenues during the years 2008-2011 are at risk, as Duke Energy Ohio planned to supply capacity to this market. On July 11, 2008, Duke Energy Ohio filed a response to the complaint with the FERC. On September 19, 2008, the FERC issued an Order denying the Buyer’s complaint. The FERC dismissedand dismissing the RPM Buyers’Buyer’s complaint, finding that, for the transition auctions, no party violated PJM’s tariff and the prices determined during the auctions were in accordance with the tariff provisions governing the auctions. On October 20, 2008, the RPM buyersBuyers filed a Request for Rehearing with the FERC that raised the same issues as in the initial complaint that was denied by the FERC.

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12.11. Commitments and Contingencies

Environmental

Duke Energy Ohio is subject to federal, state and local regulations regarding air and water quality, hazardous and solid waste disposal and other environmental matters. These regulations can be changed from time to time, imposing new obligations on Duke Energy Ohio.

Remediation Activities. Duke Energy Ohio and its affiliates are responsible for environmental remediation at various contaminated sites. These include some properties that are part of ongoing Duke Energy Ohio operations, sites formerly owned or used by Duke Energy Ohio entities, and sites owned by third parties. Remediation typically involves management of contaminated soils and may involve groundwater remediation. Managed in conjunction with relevant federal, state and local agencies, activities vary with site conditions and locations, remedial requirements, complexity and sharing of responsibility. If remediation activities involve statutory joint and several liability provisions, strict liability, or cost recovery or contribution actions, Duke Energy Ohio or its affiliates could potentially be held

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responsible for contamination caused by other parties. In some instances, Duke Energy Ohio may share liability associated with contamination with other potentially responsible parties, and may also benefit from insurance policies or contractual indemnities that cover some or all cleanup costs. All of these sites generally are managed in the normal course of business or affiliate operations. Management, in the normal course of business, continually assesses the nature and extent of known or potential environmental-related contingencies and records liabilities when losses become probable and are reasonably estimable. During 2009, it is reasonably possible that Duke Energy Ohio will incur costs associated with remediation activities at certain of its sites.

Clean Water Act 316(b). The U.S. Environmental Protection Agency (EPA) finalized its cooling water intake structures rule in July 2004. The rule established aquatic protection requirements for existing facilities that withdraw 50 million gallons or more of water per day from rivers, streams, lakes, reservoirs, estuaries, oceans or other U.S. waters for cooling purposes. Three of six coal-fired generating facilities in which Duke Energy Ohio is either a whole or partial owner are affected sources under that rule. On January 25, 2007, the U.S. Court of Appeals for the Second Circuit issued its opinion inRiverkeeper, Inc. v. EPA, Nos. 04-6692-ag(L) et. al. (2d Cir. 2007) remanding most aspects of the EPA’s rule back to the agency. The court effectively disallowed those portions of the rule most favorable to industry, and the decision creates a great deal of uncertainty regarding future requirements and their timing. On April 14, 2008,1, 2009, the U.S. Supreme Court issued an order granting reviewruled in favor of the case and briefs were filedplaintiff that the EPA may consider costs when determining which technology option each site should implement. Depending on July 14, 2008. Oral argumenthow the cost-benefit analysis is scheduledincorporated into the revised EPA rule, the analysis could narrow the range of technology options required for December 2, 2008. A decision is not likely until 2009. If the Supreme Court upholds the lower court decision, it is expected that costs will increase as a resulteach of the court’s decision, althoughthree affected facilities. Because of the wide range of potential outcomes, Duke Energy Ohio is unable to estimate its costs to comply.comply at this time.

Clean Air Interstate Rule (CAIR). The EPA finalized its CAIR in May 2005. The CAIR was to have limitedlimits total annual and summertime NOx emissions and annual SO2 emissions from electric generating facilities across the Eastern U.S. through a two-phased cap-and-trade program. Phase 1 was to beginbegins in 2009 for NOx and in 2010 for SO2. Phase 2 was to beginbegins in 2015 for both NOx and SO2. On March 25, 2008, the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) heard oral argument in a case involving multiple challenges to the CAIR. On July 11, 2008, the D.C. Circuit issued its decision inNorth Carolina v. EPA No. 05-1244 vacating the CAIR. The EPA filed a petition for rehearing on September 24, 2008 with the D.C. Circuit asking the court to reconsider various parts of its ruling vacating the CAIR. A decision is pending on that petition. Subsequent to the filing of the rehearing petitions,In December 2008, the D.C. Circuit ordered all Petitioners (including Duke Energy)issued a decision remanding the CAIR to file briefs on the petition for rehearing. The D.C. Circuit directed the parties to address whether any party is seeking vacatur of CAIR, and whether the Court should stay its mandate until the EPA promulgateswithout vacatur. The EPA must now conduct a revised rule. Duke Energy has respondednew rulemaking to modify the request accordingly. The D.C. Circuit’sCAIR in accordance with the court’s July 11, 2008 opinion. This decision creates uncertainty regarding future NOx and SO2 emission reductions requirements and their timing. Althoughmeans that the CAIR as a result of the decision there may be a delayinitially finalized in the timing of federal requirements to reduce emissions, it is expected that electric sector emission reductions at least as stringent as those imposed by CAIR will be required in the near future, through new federal rules and/or individual state requirements. CAIR2005 remains in effect until the Court issues its mandate, whichnew EPA rule takes effect. The court did not impose a deadline or schedule on the EPA. It is uncertain how long the current CAIR will not be before it decides whether to grant rehearing. remain in effect or how the new rulemaking will alter the CAIR.

Duke Energy Ohio’s plan had beenOhio plans to spend approximately $150$85 million between 20082009 and 20122013 to comply with Phase 1 of CAIR. It has not been determined how the court’s decision will affect these planned expenditures but each of the states in which Duke Energy Ohio operates is considering adopting state regulations to address the court’s decision. Duke Energy Ohio did not expect to incur any significant costs for complying with Phase 2 of CAIR. Duke Energy Ohio receivesis currently unable to estimate the costs to comply with any new rule the EPA will issue in the future as a result of the D.C. District Court’s December 2008 decision discussed above. Duke Energy Ohio received partial recovery of depreciation and financing costs related to environmental compliance projects for 2005-2008 through its RSP (see Note 11).

Duke Energy Ohio is unableand continues to estimatebe able to recover a portion of these costs through the costs to comply with any new rule the EPA or states may issue as a result of this decision. See Note 8 for a discussion of the impacts of the D.C. Circuit Court’s decision to vacate CAIR on the carrying value of emission allowances.

Clean Air Mercury Rule (CAMR). The EPA finalized its CAMR in May 2005. The CAMR was to have limited total annual mercury emissions from coal-fired power plants across the U.S. through a two-phased cap-and-trade program beginning in 2010. On February 8, 2008, the D.C. Circuit issued its opinion inNew Jersey v. EPA, No. 05-1097 vacating the CAMR. Requests for rehearing were denied. The U.S. EPA and the Utility Air Regulatory Group have requested that the U.S. Supreme Court review the D.C. Circuit’s decision. The D.C. Circuit’s decision creates uncertainty regarding future mercury emission reduction requirements and their timing, but makes it fairly certain that there will be a delay in the implementation of federal mercury requirements for existing coal-fired power plants. At this point, Duke Energy Ohio is unable to estimate the costs to comply with any future mercury regulations that might result from the D.C. Circuit’s decision.ESP.

Coal Combustion Product (CCP) ManagementManagement.. Duke Energy Ohio currently estimates that it will spend approximately $50$68 million over the period 2008-20122009-2013 to install synthetic caps and liners at existing and new CCP landfills and to convert some of its CCP handling systems from wet to dry systems.

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Notes To Unaudited Consolidated Financial Statements—(Continued)

 

Comprehensive Environmental Response, Compensation, and Liability Act Matter. In August 2008, Duke Energy Ohio received a notice from the EPA that it has been identified as a potentially responsible party under the Comprehensive Environmental Response, Compensation, and Liability Act at the LWD, Inc., Superfund Site in Calvert City, Kentucky. At this time, Duke Energy Ohio does not have any further information regarding the scope of potential liability associated with this matter.

Extended Environmental Activities and AccrualsAccruals.. Included in Other within Deferred Credits and Other Liabilities on the Consolidated Balance Sheets were total accruals related to extended environmental-related activities of approximately $8$11 million as of both September 30, 2008March 31, 2009 and December 31, 2007.2008. These accruals represent Duke Energy Ohio’s provisions for costs associated with remediation activities at some of its current and former sites, as well as other relevant environmental contingent liabilities. Management, in the normal course of business, continually assesses the nature and extent of known or potential environmental-related contingencies and records liabilities when losses become probable and are reasonably estimable.

 

Litigation

New Source Review (NSR). In 1999-2000, the U.S. Department of Justice, (DOJ), acting on behalf of the EPA and joined by various citizen groups and states, filed a number of complaints and notices of violation against multiple utilities across the country for alleged violations of the NSR provisions of the Clean Air Act (CAA). Generally, the government alleges that projects performed at various coal-fired units were major modifications, as defined in the CAA, and that the utilities violated the CAA when they undertook those projects without obtaining permits and installing the best available emission controls for SO2, NOx and particulate matter. The complaints seek injunctive relief to require installation of pollution control technology on various generating units that allegedly violated the CAA, and unspecified civil penalties in amounts of up to $32,500 per day for each violation. Two of Duke Energy Ohio’s plants have been subject to these allegations. Duke Energy Ohio asserts that there were no CAA violations because the applicable regulations do not require permitting in cases where the projects undertaken are “routine” or otherwise do not result in a net increase in emissions.

In November 1999, the U.S. brought a lawsuit in the U.S. Federal District Court for the Southern District of Indiana against Duke Energy Ohio alleging various violations of the CAA at Duke Energy Ohio’s W.C. Beckjord and Miami Fort Stations. Three northeast states and two environmental groups have intervened in the case. A jury trial commenced on May 5, 2008 and jury verdict was returned on May 22, 2008. The jury found in favor of Cinergy Duke Energy Ohio and Duke Energy Indiana, Inc. on all but three units at Wabash River.Ohio. Additionally, the plaintiffs had claimed that Duke Energy Ohio violated an Administrative Consent Order entered into in 1998 between the EPA and Cinergy relating to alleged violations of Ohio’s State Implementation Plan (SIP) provisions governing particulate matter at Duke Energy Ohio’s W.C. Beckjord Station. The judge previously

On October 21, 2008, plaintiffs filed a motion for a new liability trial claiming that defendants misled the plaintiffs and the jury by, among other things, not disclosing a consulting agreement with a fact witness and by referring to that witness as “retired” during the liability trial when in fact he was working for Duke Energy under the referenced consulting agreement in connection with the trial. On December 18, 2008, the court granted summary judgment againstplaintiffs’ motion for a new liability trial on claims for which Duke Energy Ohio with respect to this allegation and it will be consideredwas not previously found liable. That trial began on May 11, 2009. The remedy trial for violations already established at the W.C. Beckjord Station was held during the week beginning February 2009 remedy phase as well.2, 2009. The parties are awaiting a decision from the trial court.

It is not possible to estimate the damages, if any, that Duke Energy Ohio has been informed by Dayton Power and Light (DP&L) thatmight incur in June 2000, the EPA issued a Noticeconnection with these matters. Ultimate resolution of Violation (NOV)these matters relating to DP&L for alleged violations of CAA requirements at a station operated by DP&L and jointly-owned by DP&L, Columbus Southern Power Company (CSP), and Duke Energy Ohio. The NOV indicated the EPA may issue an order requiring compliance with the requirements of the Ohio SIP, or bring a civil action seeking injunctive relief and civil penalties of up to $27,500 per day for each violation. In September 2004, Marilyn Wall and the Sierra Club brought a lawsuit against Duke Energy Ohio, DP&L and CSP for alleged violations of the CAA at this same generating station. The parties reached an agreement to settle this matterNSR, even in the form of a consent decree which was submitted for comment to the EPA and ultimately approved and entered by the court on October 23, 2008. The consent decree will notsettlement, could have a material adverse effect on Duke Energy Ohio’s consolidated results of operations, cash flows or financial position. However, Duke Energy Ohio will pursue appropriate regulatory treatment for any costs incurred in connection with such resolution.

Section 126 PetitionsPetitions.. In March 2004, the state of North Carolina filed a petition under Section 126 of the CAA in which it alleges that sources in 13 upwind states, including Ohio, significantly contribute to North Carolina’s non-attainment with certain ambient air quality standards. In August 2005, the EPA issued a proposed response to the petition. The EPA proposed to deny the ozone portion of the petition based upon a lack of contribution to air quality by the named states. The EPA also proposed to deny the particulate matter portion of the petition based upon the CAIR Federal Implementation Plan (FIP), that would address the air quality concerns from neighboring states. On April 28, 2006, the EPA denied North Carolina’s petition based upon the final CAIR FIP described above. North Carolina has filed a legal challenge to the EPA’s denial. Briefing in that case is under way. On March 5, 2009 the D.C. Circuit remanded the case to the EPA for reconsideration. The EPA has conceded that the D.C. Circuit’s July 18, 2008 decision in the CAIR litigation,North Carolina v. EPA No. 05-1244, discussed above, and a subsequent order issued by the D.C. Circuit on December 23, 2008, have eliminated the legal basis for the EPA’s denial of North Carolina’s Section 126 petition. At this time, Duke Energy Ohio cannot predict the outcome of this proceeding.

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DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

Carbon Dioxide (CO2) Litigation. In July 2004, the states of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin and the City of New York brought a lawsuit in the U.S. District Court for the Southern District of New York

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Notes To Unaudited Consolidated Financial Statements—(Continued)

against Cinergy, American Electric Power Company, Inc., American Electric Power Service Corporation, The Southern Company, Tennessee Valley Authority, and Xcel Energy Inc. A similar lawsuit was filed in the U.S. District Court for the Southern District of New York against the same companies by Open Space Institute, Inc., Open Space Conservancy, Inc., and The Audubon Society of New Hampshire. These lawsuits allege that the defendants’ emissions of CO2 from the combustion of fossil fuels at electric generating facilities contribute to global warming and amount to a public nuisance. The complaints also allege that the defendants could generate the same amount of electricity while emitting significantly less CO2. The plaintiffs are seeking an injunction requiring each defendant to cap its CO2emissions and then reduce them by a specified percentage each year for at least a decade. In September 2005, the District Court granted the defendants’ motion to dismiss the lawsuit. The plaintiffs have appealed this ruling to the Second Circuit Court of Appeals. Oral arguments were held before the Second Circuit Court of Appeals on June 7, 2006. It is not possible to predict with certainty whether Duke Energy Ohio will incur any liability or to estimate the damages, if any, that Duke Energy Ohio might incur in connection with this matter.

Zimmer Generating Station (Zimmer Station) LawsuitLawsuit.. In November 2004, a citizen of the Village of Moscow, Ohio, the town adjacent to Duke Energy Ohio’s Zimmer Station, brought a purported class action in the U.S. District Court for the Southern District of Ohio seeking monetary damages and injunctive relief against Duke Energy Ohio for alleged violations of the CAA, the Ohio SIP, and Ohio laws against nuisance and common law nuisance. The plaintiffs have filed a number of additional notices of intent to sue and two lawsuits raising claims similar to those in the original claim. One lawsuit was dismissed on procedural grounds, and the remaining two have been consolidated. On December 28, 2006, the District Court certified this case as a class action. DiscoveryIn March 2009, a settlement in principle was reached with the case continues. At this time, Duke Energy Ohio cannot predict whetherclass plaintiffs, subject to execution of a definitive settlement document and approval by the outcome of this mattercourt. The settlement, as currently structured, will not have a material impactadverse effect on itsDuke Energy Ohio’s consolidated results of operations, cash flows or financial position. Duke Energy Ohio intends to defend this lawsuit vigorously in court.

Hurricane Katrina LawsuitLawsuit.. In April 2006, Cinergy was named in the third amended complaint of a purported class action lawsuit filed in the U.S. District Court for the Southern District of Mississippi. Plaintiffs claim that Cinergy, along with numerous other utilities, oil companies, coal companies and chemical companies, are liable for damages relating to losses suffered by victims of Hurricane Katrina. Plaintiffs claim that defendants’ greenhouse gas emissions contributed to the frequency and intensity of storms such as Hurricane Katrina. On August 30, 2007, the court dismissed the case. The plaintiffs have filed their appeal to the Fifth Circuit Court of Appeals and oral argument was heard on August 6, 2008. Due to the late recusal of one of the judges on the Fifth Circuit panel, the Court has scheduled the secondcourt held a new oral argument for the week ofon November 3, 2008. It is not possible to predict with certainty whether Duke Energy Ohio will incur any liability or to estimate the damages, if any, that Duke Energy Ohio might incur in connection with this matter.

Ohio Antitrust LawsuitLawsuit.. In January 2008, four plaintiffs, including individual, industrial and non-profit customers, filed a lawsuit against Duke Energy Ohio in federal court in the Southern District of Ohio. Plaintiffs allege that Duke Energy Ohio (then The Cincinnati Gas & Electric Company (CG&E)), conspired to provide inequitable and unfair price advantages for certain large business consumers by entering into non-public option agreements with such consumers in exchange for their withdrawal of challenges to Duke Energy Ohio’s (then CG&E’s) pending RSP, which was implemented in early 2005. Duke Energy Ohio denies the allegations made in the lawsuit. Following Duke Energy Ohio’s filing of a motion to dismiss plaintiffs’ claims, plaintiffs amended their complaint on May 30, 2008. Plaintiffs now contend that the contracts at issue were an illegal rebate which violate antitrust and Racketeer Influenced and Corrupt Organizations (RICO) statutes. Defendants have again moved to dismiss the claims. It is not possible to predict with certainty whetherOn March 31, 2009, the District Court granted Duke Energy Ohio will incur any liabilityOhio’s motion to dismiss. Plaintiffs have filed a motion to alter or to estimateset aside the damages, if any, that Duke Energy Ohio might incur in connection with this matter.judgment.

Asbestos-related Injuries and Damages ClaimsClaims.. Duke Energy Ohio has been named as a defendant or co-defendant in lawsuits related to asbestos at its electric generating stations. The impact on Duke Energy Ohio’s consolidated results of operations, cash flows or financial position of these cases to date has not been material. Based on estimates under varying assumptions concerning uncertainties, such as, among others: (i) the number of contractors potentially exposed to asbestos during construction or maintenance of Duke Energy Ohio’s generating plants; (ii) the possible incidence of various illnesses among exposed workers; and (iii) the potential settlement costs without federal or other legislation that addresses asbestos tort actions, Duke Energy Ohio estimates that the range of reasonably possible exposure in existing and future suits over the foreseeable future is not material. This estimated range of exposure may change as additional settlements occur and claims are made and more case law is established.

Other Litigation and Legal ProceedingsProceedings.. Duke Energy Ohio and its subsidiaries are involved in other legal, tax and regulatory proceedings arising in the ordinary course of business, some of which involve substantial amounts. Duke Energy Ohio believes that the

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DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

final disposition of these proceedings will not have a material adverse effect on its consolidated results of operations, cash flows or financial position.

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Notes To Unaudited Consolidated Financial Statements—(Continued)

Duke Energy Ohio has exposure to certain legal matters that are described herein. As of September 30, 2008both March 31, 2009 and December 31, 2007,2008, Duke Energy Ohio has recorded insignificant reserves for these proceedings and exposures. Duke Energy Ohio expenses legal costs related to the defense of loss contingencies as incurred.

 

Other Commitments and Contingencies

GeneralGeneral.. Duke Energy Ohio enters into various fixed-price, non-cancelable commitments to purchase or sell power (tolling arrangements or power purchase contracts) that may or may not be recognized on the Consolidated Balance Sheets. Some of these arrangements may be recognized at market value on the Consolidated Balance Sheets as undesignated hedge contracts or qualifying hedge positions.

 

13.12. Fair Value of Financial Assets and Liabilities

On January 1, 2008, Duke Energy Ohio adopted SFAS No. 157, “Fair Value Measurements” (SFAS No. 157).157. Through December 31, 2008, Duke Energy Ohio’s adoption of SFAS No. 157 is currentlywas limited to financial instruments and to non-financial derivatives as, in February 2008, the FASB issued FSP No. FAS 157-2,“Effective Date of FASB Statement No. 157,” which delayed the effective date of SFAS No. 157 for one yearuntil January 1, 2009 for non-financial assets and liabilities, except for items that are recognized or disclosed at fair value in the financial statements on a recurring basis. There was no cumulative effect adjustment to retained earnings for Duke Energy Ohio as a result of the adoption of SFAS No. 157.

SFAS No. 157 defines fair value, establishes a framework for measuring fair value in GAAP in the U.S. and expands disclosure requirements about fair value measurements. Under SFAS No. 157, fair value is considered to be the exchange price in an orderly transaction between market participants to sell an asset or transfer a liability at the measurement date. The fair value definition under SFAS No. 157 focuses on an exit price, which is the price that would be received by Duke Energy Ohio to sell an asset or paid to transfer a liability versus an entry price, which would be the price paid to acquire an asset or received to assume a liability. Although SFAS No. 157 does not require additional fair value measurements, it applies to other accounting pronouncements that require or permit fair value measurements.

Duke Energy Ohio determines fair value of financial assets and liabilities based on the following fair value hierarchy, as prescribed by SFAS No. 157, which prioritizes the inputs to valuation techniques used to measure fair value into three levels:

Level 1 inputs—unadjusted quoted prices in active markets for identical assets or liabilities that Duke Energy Ohio has the ability to access. An active market for the asset or liability is one in which transactions for the asset or liability occur with sufficient frequency and volume to provide ongoing pricing information. Duke Energy Ohio does not adjust quoted market prices on Level 1 inputs for any blockage factor.

Level 2 inputsinputs—inputs other than quoted market prices included in Level 1 that are observable, either directly or indirectly, for the asset or liability. Level 2 inputs include, but are not limited to, quoted prices for similar assets or liabilities in an active market, quoted prices for identical or similar assets or liabilities in markets that are not active and inputs other than quoted market prices that are observable for the asset or liability, such as interest rate curves and yield curves observable at commonly quoted intervals, volatilities, credit risk and default rates.

Level 3 inputs—unobservable inputs for the asset or liability.

In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities-including an amendment of FASB Statement No. 115” (SFAS No. 159), which permits entities to elect to measure many financial instruments and certain other items at fair value. For Duke Energy Ohio, SFAS No. 159 was effective as of January 1, 2008 and had no impact on amounts presented for periods prior to the effective date. Duke Energy Ohio does not currently have any financial assets or financial liabilities for which the provisions of SFAS No. 159 have been elected. However, in the future, Duke Energy Ohio may elect to measure certain financial instruments at fair value in accordance with this standard.

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Notes To Unaudited Consolidated Financial Statements—(Continued)

 

The following table providestables provide the fair value measurement amounts for assets and liabilities recorded in both current and non-current Unrealizedunrealized gains on mark-to-market and hedging transactions and Unrealizedunrealized losses on mark-to-market and hedging transactions on Duke Energy Ohio’s Consolidated Balance Sheets at fair value at September 30,March 31, 2009 and December 31, 2008. Amounts presented in the tabletables below exclude cash collateral amounts which are disclosed separately in Note 1.9.

   Total Fair Value
Amounts at
September 30, 2008


  Level 1

  Level 2

  Level 3

 
   (in millions) 

Description

                 

Derivative assets

  $133  $10  $  $123 

Derivative liabilities

  $(112) $(25) $(2) $(85)

   Total Fair Value
Amounts at
March 31, 2009


  Level 1

  Level 2

  Level 3

 
   (in millions) 

Description

                 

Derivative Assets

  $61  $9  $  $52 

Derivative Liabilities

   (212)  (162)  (7)  (43)
   


 


 


 


Net (Liabilities) Assets

  $(151) $(153) $(7) $9 
   


 


 


 


   Total Fair Value
Amounts at
December 31, 2008


  Level 1

  Level 2

  Level 3

 
   (in millions) 

Description

                 

Derivative Assets

  $68  $9  $  $59 

Derivative Liabilities

   (147)  (88)  (8)  (51)
   


 


 


 


Net (Liabilities) Assets

  $(79) $(79) $(8) $8 
   


 


 


 


The following table provides a reconciliation of beginning and ending balances of assets and liabilities measured at fair value on a recurring basis where the determination of fair value includes significant unobservable inputs (Level 3):

 

Rollforward of Level 3 Measurements

 

   Derivatives (net)

 
   (in millions) 

Three Months Ended September 30, 2008

     

Balance at July 1, 2008

  $29 

Total pre-tax realized or unrealized gains included in earnings:

     

Revenue, non-regulated electric and other

   10 

Fuel used in electric generation and purchased power—non-regulated

   4 

Total pre-tax gains included in other comprehensive income

   9 

Net purchases, sales, issuances and settlements

   (14)
   


Balance at September 30, 2008

  $38 
   


Nine Months Ended September 30, 2008

     

Balance at January 1, 2008

  $(22)

Total pre-tax realized or unrealized gains (losses) included in earnings:

     

Revenue, non-regulated electric and other

   (14)

Fuel used in electric generation and purchased power—non-regulated

   105 

Net purchases, sales, issuances and settlements

   (31)
   


Balance at September 30, 2008

  $38 
   


Pre-tax amounts included in the Consolidated Statements of Operations related to Level 3 measurements outstanding at September 30, 2008:

     

Revenue, non-regulated electric and other

  $(4)

Fuel used in electric generation and purchased power—non-regulated

   62 
   


Total

  $58 
   


   Derivatives (net)

 
   (in millions) 

Balance at January 1, 2009

  $8 

Total pre-tax realized or unrealized gains included in earnings:

     

Fuel used in electric generation and purchased power-non-regulated

   1 

Total pre-tax gains included in other comprehensive income

   1 

Net purchases, sales, issuances and settlements

   (5)

Total gains included on balance sheet as regulatory asset or liability or as non-current liability

   4 
   


Balance at March 31, 2009

  $9 
   


Pre-tax (losses) gains included in the Consolidated Statements of Operations related to Level 3 measurements outstanding at March 31, 2009:

     

Revenue, non-regulated electric, and other

  $(5)

Fuel used in electric generation and purchased power-non-regulated

   18 
   


Total

  $13 
   


Balance at January 1, 2008

  $(22)

Total pre-tax realized or unrealized gains included in earnings:

     

Revenue, non-regulated electric and other

   8 

Total pre-tax losses included in other comprehensive income

   (3)

Net purchases, sales, issuances and settlements

   (8)
   


Balance at March 31, 2008

  $(25)
   


Pre-tax gains included in the Consolidated Statements of Operations related to Level 3 measurements outstanding at March 31, 2008:

     

Revenue, non-regulated electric and other

  $1 
   


Total

  $1 
   


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Notes To Unaudited Consolidated Financial Statements—(Continued)

 

The valuation method of the primary fair value measurements disclosed above isare as follows:

Commodity derivativesderivatives:: The pricing for commodity derivatives is primarily a calculated value which incorporates the forward price and is adjusted for liquidity (bid-ask spread), credit or non-performance risk (after reflecting credit enhancements such as collateral) and discounted to present value. The primary difference between a Level 2 and a Level 3 measurement has to do with the level of activity in forward markets for the commodity. If the market is relatively inactive, the measurement is deemed to be a Level 3 measurement. Some commodity derivatives are NYMEX contracts, which Duke Energy Ohio classifies as Level 1 measurements.

Fair Value Disclosures Required Under FSP No. FAS 107-1 and Accounting Principles Board (APB) 28-1, “Interim Disclosures About Fair Value of Financial Instruments. The fair value of financial instruments, excluding financial assets included in the scope of SFAS No. 157 disclosed in the tables above, is summarized in the following table. Judgment is required in interpreting market data to develop the estimates of fair value. Accordingly, the estimates determined as of March 31, 2009 and December 31, 2008 are not necessarily indicative of the amounts Duke Energy Ohio could have realized in current markets.

   As of March 31,
2009

  As of December 31,
2008


   Book
Value


  Approximate
Fair Value


  Book
Value


  Approximate
Fair Value


   (in millions)

Long-term debt, including current maturities

  $2,331  $2,130  $1,883  $1,729

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Notes To Unaudited Consolidated Financial Statements—(Continued)The fair value of cash and cash equivalents, accounts receivable, restricted funds held in trust, accounts payable and notes payable are not materially different from their carrying amounts because of the short-term nature of these instruments and/or because the stated rates approximate market rates.

 

14.13. New Accounting Standards

The following new accounting standards were adopted by Duke Energy Ohio subsequent to September 30, 2007March 31, 2008 and the impact of such adoption, if applicable, has been presented in the accompanying Consolidated Financial Statements:

SFAS No. 157.Refer to Note 13 for a discussion of Duke Energy Ohio’s adoption of SFAS No. 157.

SFAS No. 159. Refer to Note 13 for a discussion of Duke Energy Ohio’s adoption of SFAS No. 159.

FSP No. FIN 39-1. Refer to Notes 1 and 10 for a discussion of Duke Energy Ohio’s adoption of FSP No. FIN 39-1.

The following new accounting standards have been issued, but have not yet been adopted by Duke Energy Ohio as of September 30, 2008:

SFAS No. 141 (revised 2007), “Business Combinations” (SFAS No. 141R). In December 2007, the FASB issued SFAS No. 141R, which replaces SFAS No. 141, “Business Combinations.” SFAS No. 141R retains the fundamental requirements in SFAS No. 141 that the acquisition method of accounting be used for all business combinations and that an acquirer be identified for each business combination. This statement also establishes principles and requirements for how an acquirer recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, any noncontrolling (minority) interests in an acquiree, and any goodwill acquired in a business combination or gain recognized from a bargain purchase. For Duke Energy Ohio, SFAS No. 141R must be applied prospectively to business combinations for which the acquisition date occurs on or after January 1, 2009. The impact to Duke Energy Ohio of applying SFAS No. 141R for periods subsequent to implementation will be dependent upon the nature of any transactions within the scope of SFAS No. 141R. Additionally, SFAS No. 141R changes the accounting for income taxes related to prior business combinations, such as Duke Energy’s merger with Cinergy. Subsequent to the effective date of SFAS No. 141R, the resolution of tax contingencies relating to Cinergy that existed as of the date of the merger will be required to be reflected in the Consolidated Statements of Operations instead of being reflected as an adjustment to the purchase price via an adjustment to goodwill.combinations.

SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities—an amendment to FASB Statement No. 133” (SFAS No. 161).In March 2008, the FASB issued SFAS No. 161, which amends and expands the disclosure requirements for derivative instruments and hedging activities prescribed by SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities.” SFAS No. 161 requires qualitative disclosures about objectives and strategies for using derivatives, quantitative disclosures about fair value amounts of and gains and losses on derivative instruments, and disclosures about credit-risk-related contingent features in derivative agreements. Duke Energy Ohio will adoptadopted SFAS No. 161 as of January 1, 2009 and SFAS No. 161 encourages, but does not require, comparative disclosure for earlier periods at initial adoption.2009. The adoption of SFAS No. 161 willdid not have any impact on Duke Energy Ohio’s consolidated results of operations, cash flows or financial position. See Note 9 for the disclosures required under SFAS No. 161.

 

15.14. Income Taxes and Other Taxes

The taxable income of Duke Energy Ohio is reflected in Duke Energy’s U.S. federal and state income tax returns. Duke Energy Ohio has a tax sharing agreement with Duke Energy, where the separate return method is used to allocate tax expenses and benefits to the subsidiaries whose investments or results of operations provide these tax expenses and benefits. The accounting for income taxes essentially represents the income taxes that Duke Energy Ohio would incur if Duke Energy Ohio were a separate company filing its own tax return as a C-Corporation.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

Changes to Unrecognized Tax Benefits

   Increase/(Decrease)

 
   (in millions) 

Unrecognized Tax Benefits—January 1, 2009

  $15 
   


Unrecognized Tax Benefits Changes

     

Gross increases—tax positions in prior periods

   3 

Gross decreases—tax positions in prior periods

   (1)

Settlements

   (5)
   


Total Changes

   (3)
   


Unrecognized Tax Benefits—March 31, 2009

  $12 
   


At September 30, 2008, Duke Energy Ohio has approximately $46 million recorded for unrecognized tax benefits andMarch 31, 2009, no portion of the total unrecognized tax benefits, if recognized, would affect the effective tax rate. Additionally, at September 30, 2008, Duke Energy Ohio has approximately $7 million of unrecognized tax benefits related to pre-merger tax positions that, if recognized prior to the adoption of SFAS No. 141R, would affect goodwill. It is reasonably possible that Duke Energy Ohio will reflect an approximate $35 million reductiondoes not anticipate a significant increase or decrease in unrecognized tax benefits withinin the next twelve months due to expected settlements.months.

Duke Energy Ohio has the following tax years open:

 

Jurisdiction

  Tax Years

Federal

  20002005 and after

State

  Closed through 2001, with the exception of any adjustments related to open federal years

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

The effective tax rate for the three months ended September 30, 2008March 31, 2009 was approximately 28%35.4% as compared to the effective tax rate of approximately 37%35.7% for the same period in 2007. The decrease in the effective tax rate for the three months ended September 30, 2008 is due primarily to adjustments related to prior year tax returns. The effective tax rate for the nine months ended September 30, 2008 was approximately 37% as compared to the effective tax rate of approximately 38% for the same period in 2007.2008.

As of September 30, 2008March 31, 2009 and December 31, 2007,2008, approximately $80$63 million and $27$64 million, respectively, of deferred income taxes were included in Other within Current Assets inon the Consolidated Balance Sheets. At September 30,March 31, 2009 and December 31, 2008, this balancethese balances exceeded 5% of total current assets.

Excise Taxes. Certain excise taxes levied by state or local governments are collected by Duke Energy Ohio from its customers. These taxes, which are required to be paid regardless of Duke Energy Ohio’s ability to collect from the customer, are accounted for on a gross basis. When Duke Energy Ohio acts as an agent, and the tax is not required to be remitted if it is not collected from the customer, the taxes are accounted for on a net basis. Duke Energy Ohio’s excise taxes accounted for on a gross basis and recorded as Operating Revenuesrevenues in the accompanying Consolidated Statements of Operations were approximately $27 million for both the three months ended September 30, 2008 and 2007, respectively, and approximately $95$40 million and $93$39 million for the nine months ended September 30, 2008 and 2007, respectively.

16. Comprehensive Income and Total Comprehensive Income

Comprehensive Income. Comprehensive income includes net income and all other non-owner changes in equity. The table below provides the components of other comprehensive income and total comprehensive income for the three months ended September 30,March 31, 2009 and 2008, and 2007. Components of other comprehensive income and total comprehensive income for the nine months ended September 30, 2008 and 2007 are presented in the Consolidated Statements of Common Stockholder’s Equity and Comprehensive Income.respectively.

 

Total Comprehensive (Loss) Income15. Sales of Accounts Receivable

Accounts Receivable Securitization. Duke Energy Ohio and Duke Energy Kentucky sell, on a revolving basis, nearly all of their retail and wholesale accounts receivable and related collections to Cinergy Receivables. The securitization transaction was structured to meet the criteria for sale treatment under SFAS No. 140 and, accordingly, the transfers of receivables are accounted for as sales.

The proceeds obtained from the sales of receivables are largely cash but do include a subordinated note from Cinergy Receivables for a portion of the purchase price (typically approximates 25% of the total proceeds). The note, which amounts to approximately $154 million and $174 million at March 31, 2009 and December 31, 2008, respectively, is subordinate to senior loans that Cinergy Receivables obtains from commercial paper conduits controlled by unrelated financial institutions, which is the source of funding for the subordinated note. This subordinated note is a retained interest (right to receive a specified portion of cash flows from the sold assets) under SFAS No. 140 and is classified within Receivables in the accompanying Consolidated Balance Sheets at March 31, 2009 and December 31, 2008.

In 2008, Cinergy Receivables and Duke Energy Ohio and Duke Energy Kentucky amended the governing purchase and sale agreement to allow Cinergy Receivables to convey its bankrupt receivables to the applicable originator for consideration equal to the fair market value of such receivables as of the disposition date. The amount of bankrupt receivables sold is limited to 1% of aggregate sales of the originator during the most recently completed 12 month period. Cinergy Receivables and Duke Energy Ohio and Duke Energy Kentucky completed a sale under this amendment in 2008.

PART I

DUKE ENERGY OHIO, INC.

Notes To Unaudited Consolidated Financial Statements—(Continued)

 

   Three Months Ended
September 30,


 
   2008

  2007

 
   (in millions) 

Net (Loss) Income

  $(54) $118 
   


 


Other comprehensive income (loss)

         

Cash flow hedges(a)

   11   (7)

Pension and OPEB-related Adjustments to AOCI(b)

   2   1 
   


 


Other comprehensive income (loss), net of tax

   13   (6)
   


 


Total Comprehensive (Loss) Income

  $(41) $112 
   


 


Duke Energy Ohio and Duke Energy Kentucky retain servicing responsibilities for their role as collection agents on the amounts due on the sold receivables. However, Cinergy Receivables assumes the risk of collection on the purchased receivables without recourse to Duke Energy Ohio and Duke Energy Kentucky in the event of a loss. While no direct recourse to Duke Energy Ohio and Duke Energy Kentucky exists, these entities risk loss in the event collections are not sufficient to allow for full recovery of their retained interests. No servicing asset or liability is recorded since the servicing fee paid to Duke Energy Ohio approximates a market rate.

The carrying value of the retained interest is determined by allocating the carrying value of the receivables between the assets sold and the interests retained based on relative fair value. The key assumptions used in estimating the fair value for 2009 were an anticipated credit loss ratio of 0.7%, a discount rate of 2.8% and a receivable turnover rate of 12.5%. Because (a) the receivables generally turnover in less than two months, (b) credit losses are reasonably predictable due to Duke Energy Ohio’s broad customer base and lack of significant concentration, and (c) the purchased beneficial interest is subordinate to all retained interests and thus would absorb losses first, the allocated bases of the subordinated notes are not materially different than their face value. The hypothetical effect on the fair value of the retained interests assuming both a 10% and a 20% unfavorable variation in credit losses or discount rates is not material due to the short turnover of receivables and historically low credit loss history. Interest accrues to Duke Energy Ohio and Duke Energy Kentucky on the retained interests using the accretable yield method, which generally approximates the stated rate on the notes since the allocated basis and the face value are nearly equivalent. An impairment charge is recorded against the carrying value of both the retained interests and purchased beneficial interest whenever it is determined that an other-than-temporary impairment has occurred.

The following table shows the gross and net receivables sold, retained interests, sales, and cash flows during the three months ended March 31, 2009:

 

(a)Cash flow hedges, net of $6 million tax expense and $4 million tax benefit for the three months ended September 30, 2008 and 2007, respectively.
(b)Pension and OPEB-related Adjustments to AOCI, net of an insignificant tax expense for each of the three months ended September 30, 2008 and 2007.
   Three Months Ended
March 31, 2009

   (in millions)

Receivables sold as of March 31,

  $441

Less: Retained interests

   154
   

Net receivables sold as of March 31,

  $287
   

Sales

    

Receivables sold

  $958

Loss recognized on sale

   8

Cash flows

    

Cash proceeds from receivables sold

  $970

Collection fees received

   

Return received on retained interests

   5

The loss recognized on the sale of receivables is calculated monthly by multiplying the receivables sold during the month by the required discount which is derived monthly utilizing a three year weighted average formula that considers charge-off history, late charge history, and turnover history on the sold receivables, as well as a component for the time value of money. The discount rate, or component for the time value of money, is calculated monthly by summing the prior month-end LIBOR rate plus a fixed rate of 2.39%.

 

17.16. Subsequent Events

For information on subsequent events related to debt and credit facilities, regulatory matters and commitments and contingencies, see Notes 5,10 and 11, and 12, respectively.

PART I

 

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

INTRODUCTION

Management’s Discussion and Analysis should be read in conjunction with the Unaudited Consolidated Financial Statements.

Duke Energy Ohio, Inc. (Duke Energy Ohio) is a wholly-owned subsidiary of Cinergy Corp. (Cinergy). Cinergy is a wholly-owned subsidiary of Duke Energy Corporation (Duke Energy). Duke Energy Ohio’s principal lines of business include generation, transmission and distribution of electricity, the sale of and/or transportation of natural gas, and energy marketing.

 

BASIS OF PRESENTATION

The results of operations and variance discussion for Duke Energy Ohio is presented in a reduced disclosure format in accordance with General Instructions H(2) of Form 10-Q.

 

DUKE ENERGY OHIO

  Nine Months Ended
September 30,


   Three Months Ended
March 31,


 
  2008

  2007

 Increase
(Decrease)


   2009

    2008  

  Increase
(Decrease)


 
  (in millions)   (in millions) 

Operating revenues

  $2,604  $2,634  $(30)  $1,006  $991  $15 

Operating expenses

   2,224   2,243   (19)   843   781   62 

Gains (losses) on sales of other assets and other, net

   46   (12)  58 

Gains on sales of other assets and other, net

   4   13   (9)
  

  


 


  

  

  


Operating income

   426   379   47    167   223   (56)

Other income and expenses, net

   23   22   1       9   (9)

Interest expense

   72   73   (1)   35   26   9 
  

  


 


  

  

  


Income before income taxes

   377   328   49    132   206   (74)

Income tax expense

   141   124   17    47   73   (26)
  

  


 


  

  

  


Net income

  $236  $204  $32   $85  $133  $(48)
  

  


 


  

  

  


Net Income

The $32$48 million increasedecrease in Duke Energy Ohio’s Net Income was primarily due to the following factors:

Operating Revenues.The decreaseincrease was primarily due to:driven by:

A $36$52 million increase in retail electric revenues resulting from higher retail pricing principally related to the implementation of the Electric Security Plan (ESP) in 2009;

A $27 million increase in revenues due to higher generation volumes and PJM capacity revenues from the Midwest gas-fired assets in 2009 compared to 2008; and

A $23 million increase in net mark-to-market revenues on non-qualifying power and capacity hedge contracts, consisting of mark-to-market gains of $9 million in 2009 compared to losses of $14 million in 2008.

Partially offsetting these increases were:

A $47 million decrease in volumes of coal sales due to expiration of contracts,regulated fuel revenues driven primarily by lower natural gas costs and reduced sales;

A $22$13 million decrease in retail electric revenues primarilyresulting from lower retail volumes due to lower retail pricing principally related to timing of collections on the Fuel and Purchased Power rider ofoverall declining economic conditions, which are primarily impacting the Rate Stabilization Plan (RSP), net of increased amortization of purchase accounting valuation liability of the RSP,industrial sector;

A $21 million decrease due to milder weather in 2008 compared to 2007, and

A $19$12 million decrease in wholesale electric revenues due to lower generation volumes primarily resulting from higher plant outagesmargin and lower hedge realization in 20082009 compared to 2007.

Partially offsetting these decreases were:

A $23 million increase in regulated fuel revenues driven mainly by higher natural gas costs,

A $13 million increase due to implementation of new gas rates in Ohio,2008;

A $9 million increasedecrease related to the Demand Side Management (DSM) rider implemented in the third quarter of 2007, and

An $8 million increase in Ohio electric base transmissionnative load due to a changemilder weather in the Transmission Cost Recovery rider.

Operating Expenses. The decrease was primarily due to:

A $52 million decrease due primarily to lower sulfur dioxide emission allowance expenses due to installation of flue gas desulphurization equipment and lower generation volumes resulting from increased plant outages in 2008 as2009 compared to 2007,2008; and

A $36$9 million decrease in expenses associated with coal sales due toretail electric revenues resulting from the expiration of contracts,the Ohio electric Regulatory Transition Charge (RTC) for residential customers.

PART I

 

Operating Expenses. The increase was primarily driven by:

A $27$66 million decreaseincrease in mark-to-market fuel expense due to mark-to-market gains on non-qualifying fuel hedge contracts, consisting of $73mark-to-market losses of $8 million in 20082009 compared to gains of $46$58 million in 2007,2008;

A $20$21 million decreaseincrease in other post-employment benefitsfuel and operating expenses for the Midwest gas-fired assets primarily due to an adjustmenthigher generation volumes in 2009 compared to the liability recorded for these benefits,2008;

A $13$16 million decreaseincrease in corporate governance and administrative costs, partially offset by higher plant maintenance expenses resulting from increased plant outages and maintenance in 2008 as2009 compared to 2007,

A $13 million decrease in short-term incentive costs,2008; and

A $7$9 million decreaseincrease in retail fueloperating and purchased powermaintenance expenses primarily due to realized gains fromhigher storm costs largely driven by the settlementimpact of certain fuel contracts, partially offset by higher purchased power as a result of increased plant outages.an ice storm in January 2009.

 

Partially offsetting these decreasesincreases were:

An $82A $52 million impairment of emission allowances due to the invalidation of the Clean Air Interstate Rule in July 2008,

A $34 million increase due to storm restoration work for damage caused by Hurricane Ike,

A $23 million increasedecrease in regulated fuel expense primarily due to higherlower natural gas costs and reduced purchases; and

A $12$9 million increasedecrease in regulatory asset amortization resulting from the expiration of the Ohio DSM costs and regulatory transition charge.electric RTC for residential customers.

Gains (Losses) on Sales of Other Assets and Other, net.The increasedecrease in 2009 as compared to 2008 is attributable to lower gains on sales of emission allowances in 20082009 compared to losses2008.

Other Income and Expenses, net. The decrease in 2009 as compared to 2008 is primarily attributable to reduced interest income on salesthe subordinated note from Cinergy Receivables Company, LLC, a wholly-owned subsidiary of emission allowancesCinergy, to which Duke Energy Ohio sells certain of its accounts receivable, resulting from lower interest rates and a reduction in 2007. Gainsinterest income accrued for uncertain income tax positions.

Interest Expense.The increase was primarily due to higher debt balances in 2008 were primarily a resultthe first quarter of sales of zero cost basis emission allowances. Losses2009 as compared to the same period in 2007 were a result of sales of emission allowances acquired in connection with Duke Energy’s merger with Cinergy in April 2006 which were written up to fair value as part of purchase accounting.2008.

Income Tax Expense.Income Tax Expense increasedThe decrease was primarily as athe result of higherlower pre-tax income.

 

MATTERS IMPACTING FUTURE RESULTS AND OTHER MATTERSMatters Impacting Future Results

Duke Energy Ohio has approximately $440 million of auction rate pollution control bonds outstanding. The maximum auction rate for these pollution control bonds outstanding is 2.0 times one-month London Interbank Offered Rate (LIBOR). While Duke Energy Ohio intends to refund and refinance these tax exempt auction rate bonds, the timing of such refinancing transactions is uncertain and subject to market conditions.

Duke Energy Ohio evaluates the carrying amount of its recorded goodwill for impairment under the guidance of SFAS No. 142, “Goodwill and Other Intangible Assets.. For further information on key assumptions that impact Duke Energy Ohio’s goodwill impairment assessments, see Critical Accounting Policy for Goodwill Impairment in Duke Energy Ohio’s Form 10-K for the year ended December 31, 2008. As of the date of the August 2008 annual impairment test, the fair value of each of Duke Energy Ohio’s reporting units exceeded their respective carrying values, at August 31, 2008, Duke Energy Ohio did not record anythus no goodwill impairment charges inwere recorded. However, management is continuing to monitor the third quarter of 2008 as a result of its annual impairment test. However, in lightimpact of recent market and economic events to determine if it is more likely than not that the carrying values of Duke Energy Ohio’s reporting units have been impaired. Should any such triggering events or circumstances occur in 2009 prior to the annual August 2009 testing date that would more likely than not reduce the fair value of a reporting unit below its carrying value, management is reassessing the potential for any impairments to recordedwould perform an interim detailed impairment test of Duke Energy Ohio’s goodwill balances. These assessments are in their early stages and management cannot yet predict the outcome, but it is possible that the current assessmentsgoodwill impairment charges could be recorded as a result inof these tests. At March 31, 2009, Duke Energy Ohio had goodwill impairments being recorded at one or more reporting units.of approximately $2,360 million.

PART I

 

Item 4. Controls and Procedures.

 

Disclosure Controls and Procedures

Disclosure controls and procedures are controls and other procedures that are designed to ensure that information required to be disclosed by Duke Energy Ohio in the reports it files or submits under the Securities Exchange Act of 1934 (Exchange Act) is recorded, processed, summarized, and reported, within the time periods specified by the Securities and Exchange Commission’s (SEC) rules and forms.

Disclosure controls and procedures include, without limitation, controls and procedures designed to provide reasonable assurance that information required to be disclosed by Duke Energy Ohio in the reports it files or submits under the Exchange Act is accumulated and communicated to management, including the Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Under the supervision and with the participation of management, including the Chief Executive Officer and Chief Financial Officer, Duke Energy Ohio has evaluated the effectiveness of its disclosure controls and procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act) as of September 30, 2008,March 31, 2009, and, based upon this evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that these controls and procedures are effective in providing reasonable assurance of compliance.

 

Changes in Internal Control over Financial Reporting

Under the supervision and with the participation of management, including the Chief Executive Officer and Chief Financial Officer, Duke Energy Ohio has evaluated changes in internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during the fiscal quarter ended September 30, 2008March 31, 2009 and other than the third quarter financial system changes described below, have concluded that no change has materially affected, or is reasonably likely to materially affect, internal control over financial reporting.

During the third quarter of 2008, Duke Energy Ohio converted the general ledger and consolidation systems to those currently used by other Duke Energy operations. Additionally, Duke Energy Ohio implemented a new income tax system and upgraded the asset accounting system. These system changes are a result of an evaluation of previous systems and related processes to support evolving operational needs, and are not the result of any identified deficiencies in the previous systems. Duke Energy Ohio reviewed the implementation effort as well as the impact on Duke Energy Ohio’s internal control over financial reporting and where appropriate, made changes to internal controls over financial reporting to address these system changes.

PART II. OTHER INFORMATION

 

Item 1. Legal Proceedings

For information regarding legal proceedings that became reportable events or in which there were material developments in the thirdfirst quarter of 2008,2009, see Note 1110 to the Consolidated Financial Statements, “Regulatory Matters” and Note 1211 to the Consolidated Financial Statements, “Commitments and Contingencies.”

 

Item 1A. Risk Factors

In addition to the other information set forth in this report, careful consideration should be given to the factors discussed in Part I, “Item 1A. Risk Factors” in Duke Energy Ohio’s Annual Report on Form 10-K for the year ended December 31, 2007,2008, which could materially affect Duke Energy Ohio’s financial condition or future results. In addition to the risk factors included in Duke Energy Ohio’s Annual Report on Form 10-K for the year ended December 31, 2007, Duke Energy Ohio has identified the following risk factor as of September 30, 2008:

Current Levels of Market Volatility are Unprecedented

The capital and credit markets have been experiencing extreme volatility and disruption. In recent months, the volatility and disruption have reached unprecedented levels. In some cases, the markets have exerted downward pressure on stock prices and credit capacity for certain issuers. If current levels of market disruption and volatility continue or worsen, Duke Energy Ohio may be forced to meet its other liquidity needs by further drawing upon contractually committed lending agreements primarily provided by global banks, although there is no assurance that the commitments made by lenders under Duke Energy’s master credit facility will be available if needed due to the recent turmoil throughout the financial services industry. This could require Duke Energy Ohio to seek other funding sources. However, under such extreme market conditions, there can be no assurance other funding sources would be available or sufficient.

Additional risks and uncertainties not currently known to Duke Energy Ohio or that Duke Energy Ohio currently deems to be immaterial also may adversely affect Duke Energy Ohio’s financial condition and/or results of operations.

PART II

 

Item 6. Exhibits

 

(a) Exhibits

Exhibits filed or furnished herewith are designated by an asterisk (*). All exhibits not so designated are incorporated by reference to a prior filing, as indicated. Items constituting management contracts or compensatory plans or arrangements are designated by a double asterisk (**).

 

Exhibit

Number

  
4.1**Fortieth Supplemental Indenture, dated as of March 23, 2009 to the First Mortgage, dated as of August 1, 1936, between Duke Energy Ohio, Inc. and The Bank of New York Mellon Trust Company, N.A., as successor trustee (filed on Form 8-K of Duke Energy Ohio, March 24, 2009, File No. 1-01232, as Exhibit 4.1).
10.1**Underwriting Agreement, dated March 18, 2009, between Duke Energy Ohio, Inc. and Barclays Capital Inc., Deutsche Bank Securities Inc., SunTrust Robinson Humphrey, Inc. and UBS Securities LLC, as representatives of the several underwriters named therein (filed on Form 8-K of Duke Energy Ohio, March 24, 2009, File No. 1-01232, as Exhibit 4.1).
*31.1 Certification of the Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
*31.2 Certification of the Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
*32.1 Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
*32.2 Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

The total amount of securities of the registrant or its subsidiaries authorized under any instrument with respect to long-term debt not filed as an exhibit does not exceed 10% of the total assets of the registrant and its subsidiaries on a consolidated basis. The registrant agrees, upon request of the Securities and Exchange Commission, to furnish copies of any or all of such instruments to it.

PART II

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    

DUKE ENERGY OHIO, INC.

Date: NovemberMay 13, 20082009   

/S/    DAVID L. HAUSER        


    

David L. Hauser

Group Executive and

Chief Financial Officer

Date: NovemberMay 13, 20082009   

/S/    STEVEN K. YOUNG        


    

Steven K. Young

Senior Vice President and

Controller

 

3537