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Home My WebLink About20101405.tiff Decision No. C10-0638 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO A 'n. 15 DOCKET NO. 10M-245E IN THE MATTER OF COMMISSION CONSIDERATION OF PUBLIC SERVICE COMPANY OF COLORADO PLAN IN COMPLIANCE WITI HOUSE BILL 10-1365, "CLEAN AIR- CLEAN JOBS ACT" ORDER ADDRESSING THE MAY 27, 2010 PRE-HEARING CONFERENCE AND SUBSEQUENT DELIBERATIONS Mailed Date: June 23. 2010 Adopted Date: June 8, 2010 TABLE OF CONTENTS I. BY THE COMMISSION 2 A. Statement 2 A. Discussion 3 B. Public Service's Plan, Alternative Scenarios, and System Modeling 5 I. Public Service's Proposal 5 2. Intervenor-Produced Alternative Scenarios 6 3. Proposed Workshop 9 4. Public Service's July 1 Filing 10 C. Staff's Role in this Proceeding 16 1. Staff's Motion for Clarification 16 D. Staff Consultant 18 1. Comments Received Pursuant to Decision No. C 10-0452 18 2. OCC Comments 19 3. Recovery of Staff Consultant Costs 21 E. Data Production Pursuant to Decision No. C10-0452 21 1. Paragraph 29 of Decision No. C10-0452 21 2. Paragraph 38 of Decision No. C 10-0452 26 C©wUncuta iyn, 2010-1405 t� - ax- w Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. IOM-245E F. Discovery 27 1. Discovery Limits �g 2. Commencement of Discovery 30 3. Objections to Discovery 30 4. Protection of Highly Confidential Material 31 G. Additional Hearing Dates 33 H. Federal Executive Agencies' Motion for Pro Hac Vice 34 II. ORDER 35 A. The Commission Orders That: 35 B. ADOPTED AT COMMISSIONERS' DELIBERATIONS MEETING June 8, 2010 37 I. BY THE COMMISSION A. Statement 1. The Commission convened a pre-hearing conference in this proceeding on May 27, 2010. We preliminarily took up the matters surrounding the notices and petitions for interventions filed pursuant to Decision No. C10-0452 that opened this proceeding. We also considered numerous filings submitted in this proceeding, including a Motion for Reconsideration and Clarification of Decision No. C10-0452 filed by Public Service Company of Colorado (Public Service or the Company) on May 18, 2010. 2. At the pre-hearing conference, we allowed Public Service, the parties, and potential parties to this proceeding an additional opportunity to respond to the statements made by the participants in the conference and to respond to the many filings submitted prior to the conference. We directed Public Service, the parties, and the potential parties to submit such comments by noon on Wednesday, June 2, 2010. 2 Before the Public Utilities Commission of the State of Colorado Decision No. Cltl-0638 DOCKET NO. 10M-245E 3. In addition, we invited Public Service, the parties, and the potential parties to provide comments on procedural matters, such as the conduct of the hearing given the potentially large number of intervenors in this proceeding as well as the provisions governing discovery. We directed Public Service, the parties, and the potential parties to file those comments on procedural matters on or before Friday, June 4, 2010. 4. By Decision No. C10-0545, mailed June 3, 2010, the Commission granted all of the petitions to intervene by permission that were timely filed and noted the interventions by right filed by Staff of the Colorado Public Utilities Commission (Staff), the Colorado Office of Consumer Counsel (OCC), and the Colorado Governor's Energy Office. Public Service and the intervenors are the parties to this proceeding. 5. The Commission held a Commissioners' Deliberation Meeting on June 8, 2010 to discuss the issues raised by the parties at the pre-hearing conference and in their filings submitted through June 7, 2010. This Order addresses the Commission's findings as a result of our discussion.' A. Discussion 6. House Bill 10-1365, the "Clean Air— Clean Jobs Act" (HB 10-1365), requires all rate-regulated utilities that own or operate coal-fired electric generating units located in Colorado to submit to the Commission, on or before August 15, 2010, a plan for reducing emissions from those plants? FIB 10-1365 further requires the Commission to hold an evidentiary hearing on the ' The Commission continued its deliberations at the Commissioners' Weekly Meeting on June 9, 2010. However, those discussions involved only the written data requests made by Western Resource Advocates and the "Gas Intervenors" pursuant to paragraph 38 of Decision No. C10-0452. Our findings from those discussions have been memorialized in a separate decision, Decision No. C10-0596. 'The last business day prior to the August 15,2010 deadline is Friday, August 13,2010. 3 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-1163A DOCKET NO. IOM-245E emission reduction plans filed by the jurisdictional electric utilities and to issue an order approving, denying, or modifying such plans by December 15, 2010. 7. In addition to opening this proceeding and establishing an intervention period, Decision No. C10-0452 set forth a procedural schedule intended to accommodate the extraordinarily short period in which the Commission must review the Public Service emissions reduction plan. That decision also established a corresponding process by which documents would be produced by the Company prior to the filing in August 2010 and established a subsequent discovery process for this proceeding. 8. Decision No. C10-0452 further addressed the roles that members of the Commission's Staff would play in this proceeding, including Staff, which is a party in this Docket. We found that Staff should retain a consultant to assist in its analysis of the plan and the proposed alternatives to that plan. We further directed Public Service to pay for the services provided by this Staff Consultant. 9. As indicated above, Public Service filed a Motion for Reconsideration and Clarification to Decision No. C10-0452 on May 18, 2010. Several parties filed comments and pleadings in response to the Company's motion. 10. The filings submitted thus far and the statements made by the parties at the May 27, 2010 pre-hearing conference reveal a spectrum of views on how the Commission should execute its duties in this proceeding under the specific provisions of FIB 10-1365 and pursuant to our broad authorities under Colorado's Public Utilities Law. They also confirm our resolve to address, even before Public Service submits its emissions reduction plan, how we intend to meet our obligations under §§ 40-3.2-204(2)(b)(IV), 40-3.2-205(1), and 40-3.2-205(2), C.R.S. We 4 Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. IOM-245F reiterate that such unusual procedural actions are required given the exceptionally tight timetable established in HB 10-1365. B. Public Service's Plan,Alternative Scenarios, and System Modeling 1. Public Service's Proposal 11. At the pre-hearing conference on May 27, 2010, Public Service presented a listing of the items the Company intends to include in its August 2010 filing concerning its emissions reduction plan. Pre-hearing Conference Exhibit 1. Public Service also listed the minimum requirements for evaluating alternatives to the Company's emissions reduction plan that would also be included in its August 2010 filing. 12. Public Service stated at the pre-hearing conference that it would prefer the Commission limit its review in this proceeding to the Company's emissions reduction plan and alternatives presented in the Company's August 2010 filing. The Company explained that it intended for its August 2010 tiling to include more alternatives than the minimums set forth in HB 10-1365. Tr.' at 58. The Company further stated that it hoped that there would be a broad range of alternatives in the August 2010 filing, such that these alternatives would "have something in it for everyone." Tr. at 68. Under this approach, the Commission's evidentiary hearing would thus entail the parties making arguments concerning why they support one or more alternatives as compared to others or the Company's preferred plan. Tr. at 69-70. The Commission would then determine, based on that evidentiary record, which approach best serves the public interest. Tr. at 65. ' "Tr."denotes the Transcript of the May 27,2010 Pre-Hearing Conference. 5 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. I0M-245E 13. Public Service further explained that it intends to provide detailed information concerning the various attributes of the Company's emissions reduction plan and each alternative scenario set forth in the its August 2010 filing, such as the expected emissions reductions, costs, and rate impacts. The Company also indicated that each emission reduction plan and alternative case in the August 2010 filing would meet the statutorily required emissions reductions, which would be confirmed in advance by the Colorado Department of Public Health and Environment (CDPHE). Furthermore, Public Service would review the alternatives to ensure that the Company believes they are feasible, given construction and labor constraints, system reliably standards, gas delivery infrastructure, and transmission system configurations, for example. Tr. at 65. 14. Public Service also stated that its August 2010 filing will not address longer-term resource planning issues, such as serving load growth in the Company's service territory. Those issues would instead be addressed in Public Service's next Electric Resource Plan (ERP) filing, scheduled in October 2011. Tr. at 64. 2. Intervenor-Produced Alternative Scenarios 15. In their responses to Public Service's Motion for Reconsideration and Clarification, Noble Energy, Inc., Chesapeake Energy, Inc., and EnCana Corporation (the Gas Intervenors) present an entirely different view of this proceeding as compared to Public Service's proposal." For instance, the Gas Intervenors argue that the Commission's implementation of HB 10-1365 will depend on the evidence presented by the parties to this proceeding. Accordingly, the Gas Intervenors suggest that the Commission must promptly require Public ' Gas Intervenors' Response to Public Service's Motion for Reconsideration and Clarification filed on May21, 2010; Gas Intervenors' Supplemental Response to Public Service's Motion for Reconsideration and Clarification filed on May 25, 2010. 6 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E Service to provide the information that the intervenors need now in order for them to evaluate and to propose modifications to the contents of the Company's August 2010 filing. 16. Consistent with that vision for this proceeding, the Gas Intervenors expect the intervenors to have the ability to support alternative coal-plant retirement scenarios within the deadlines of HB 10-1365. More specifically, the Gas Intervenors want to conduct their own STRATEGIST modeling of alternative scenarios that Public Service does not consider. 17. In a similar vein, Western Resource Advocates (WRA) argued in its response that, in order for the Commission to explore creative ways to develop the plan required by HB 10- 1365, it is important for parties to be able to look at Public Service's system as a whole.' It is essential, according to WRA, for the Commission to understand the full set of emission reduction possibilities available to the Company and to ensure that the emission reduction plan and the alternatives set forth in the August 2010 filing are consistent with and complement Colorado's Renewable Energy Standard, Governor Ritter's Climate Action Plan, and other state energy and environmental policies. WRA thus suggested that the Commission order Public Service to provide the same basic system information that is normally included in an ERP filing, so that parties can analyze and evaluate possibilities for developing the plan required by HB 10-1365.6 18. The Colorado Independent Energy Association (CIEA) conceded in its comments that this proceeding is not an ERP proceeding; however, CIEA also argued that the Company's vision for this proceeding ignores much of HB 10-1365, such as the power of the Commission to modify the plan tendered by Public Service, the requirement for the Commission to determine whether the plan protects customers from unreasonable rates and costs, and the requirement that 5 WRA's Response to Public Service's Motion for Reconsideration and Clarification filed on May 25, 2010. 6 The Commission's ERP Rules are set forth at 4 Code of Colorado Regulations 723-3-3600, et seq. 7 Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. IOM-245E the Commission consider increases in the utilization of existing natural gas-fired generation.' CIEA suggested that the Commission articulate the respected roles that we, Public Service, and the parties will play in this case and specify how we will review the costs to ratepayers of Public Service's emissions reduction plan. 19. Sentiments similar to those expressed by the Gas Intervenors, WRA, and CIEA were expressed in filings by Southwest Generation Operating Company (Southwest Generation) and by Peabody Energy Corporation (Peabody)." 20. In response to WRA's and the Gas Intervenors' filings, Public Service stated that there is no time in this proceeding for adequate and thorough consideration of any major scenario other than those that the Company will present in its August 2010 filing.' There is no time, according to Public Service, because CDPHE needs to vet such scenarios in order to confirm the associated emissions reduction modeling and because the Company itself needs to vet the scenarios for system reliability, construction viability, and the impacts on the Company's employees. 21. Public Service further points out that the Colorado Air Quality Control Commission (AQCC) needs to notice the Company's emissions reduction plan 90 days in advance of its hearings in mid-December. Public Service thus continues that, due to the AQCC's scheduling constraints, there is no way the Company can accept any major modifications to the 'CIEA's Motion for a Declaratory Order filed on June 4, 2010. " Southwest Generation's Response to Gas Intervenors' Supplemental Response to Public Service's Motion for Reconsideration and Clarification filed on June 2, 2010; Peabody's Comments Regarding Procedural and Hearing Efficiencies filed on June 4,2010. 9 Public Service's Reply to the Gas intervenors Response and Supplemental Response filed on June 2, 2010; Public Service's Reply to WRA's Response filed on June 2,2010. 8 Before the Public Utilities Commission of the State of Colorado • Decision No. Cltl-0638 DOCKET NO. IOM-245F scenarios that it submits for Commission review. Public Service thus argues that the Commission can consider only small variations to the scenarios the Company presents in its August 2010 filing. 22. In sum, Public Service states that, by law, the Company must file an emissions reduction plan with the Commission by August 13, 2010.10 The Commission must then issue a decision by December 15, 2010 either approving, denying, or modifying the emissions reduction plan submitted by the Company. If the Commission modifies the plan, the CDPHE must determine that such modifications will likely meet current and reasonably foreseeable federal and state Clean Air Act requirements. And if Public Service dislikes the Commission's modifications, Public Service may withdraw its filing. 3. Proposed Workshop 23. At the pre-hearing conference on May 27, 2010, Public Service suggested that it could file with the Commission an outline of the components of its August 2010 filing by July 1, 2010. Tr. at 70. The Company will not have completed a full analysis of its HB 10-1365 filing by July 1, 2010, but each scenario in the August 2010 filing would be expected to meet all required emissions reduction criteria, such that the Company's preliminary environmental modeling to demonstrate such compliance would have been reviewed by CDPHE and perhaps confirmed with separate modeling conducted by CDPHE. Public Service suggested that, based on the Company's July 1, 2010 filing, the Commission could then address the issue of whether there were other options that need to be considered in this proceeding. 10 Public Service's Comments on Management of Hearing and Discovery Processes filed on June 4, 2010. 9 Before the Ptt hue Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E 24. Public Service reaffirmed its proposal to make a July 1, 2010 filing in comments filed subsequent to the pre-hearing conference." Public Service also acknowledged that there may be plans the Company has not yet contemplated. The Company therefore proposed a workshop at its offices on June 11, 2010 at which participants would learn more about the scenarios that Public Service is currently evaluating and at which these participants could also propose any additional scenarios they would like the Company to consider. Public Service explained that it hopes the workshop will lead to some consensus regarding the alternatives that would be set forth in the Company's August 2010 filing. 25. In addition to discussing the range of alternatives that the Company would evaluate, Public Service offered to present the major modeling assumptions that it intends to use in its STRATEGIST analysis. The Company signaled that these modeling assumptions would largely be the same as those used in its most recent ERP (Docket No. 07A-447E), but that there would also be some changes. Accordingly, Public Service proposed a process by which parties would file with the Commission by June 15, 2010, responses to challenge the proposed modeling assumptions that would be presented by the Company at the June 11, 2010 workshop. Public Service would then file a reply to these responses by June 25, 2010, and the Commission would subsequently resolve any disputes over those modeling assumptions in time for these assumptions to be used in the development of the Company's July 1, 2010 filing. 4. Public Service's July 1, 2010 Filing 26. We generally support the idea that Public Service and the parties meet together in a workshop setting to discuss the development of the Company's emissions reduction plan under Public Service's Comments on Management of Hearing and Discovery Processes filed on June 4,2010. 10 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E I►B 10-1365 and the alternatives that the Company will also present in its August 2010 filing.12 While we do not believe a single workshop on June 11, 2010 will be sufficient for the Company and the parties to reach consensus on both the various alternatives to be presented in the August 2010 filing and the modeling assumptions for the Company's STRATEGIST analysis, we are open to the idea that this workshop or multiple similar meetings may result in some agreement between the Company and the parties (or a subset of parties), which might help us better meet our statutory obligations under HB 10-1365. 27. However, the range of divergent views among the parties about how the evidentiary record for this proceeding should be developed and about the degree to which the Commission may require modifications to the emissions reduction plan(s) set forth in the Company's August 2010 filing also indicate that early consensus on the contents of the August 2010 filing and STRATEGIST modeling may be elusive. 28. Moreover, we find it is premature for the Commission to reach a decision on whether we will likely be satisfied with the progression of the evidentiary record in this proceeding after Public Service's submittal of its August 2010 filing. On one hand, we do not accept, at this stage, the limits on our authority to consider alternative emissions reduction plans and on our ability to order modifications to Company-proposed emissions reduction plan, as suggested by Public Service. On the other hand, we are doubtful that the deadlines dictated by HB 10-1365 will permit the parties to prepare and the Commission to consider any fully- developed, independent, and detailed alternatives to the emission reduction plans and other options set forth in the Company's August 2010 filing. I2 In its filing, Public Service invited the Commission or Commission advisory staff to participate in this proceeding. The Commission declined to so participate. 11 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245F. 29. The August 13, 2010 filing deadline for Public Service is fast approaching, and the September 17, 2010 deadline for Answer Testimony from the parties follows closely at its heels. These dates weigh heavily when we consider the demands placed on Public Service's employees who will be responsible for developing and modeling the emission reduction scenarios, as well as the obstacles the parties must overcome in preparing their cases. As noted in the various filings submitted thus far in the case, the deadlines in HB 10-1365 present the Commission with unusual challenges concerning the timing and scope of discovery in this case. 30. In this context, we find that information concerning the results of the workshop process that will have been initiated by Public Service on June 11, 2010 would be useful when determining whether the evidentiary record in this proceeding will likely be sufficient for us to meet our obligations under HB 10-1365 and under Public Utilities Law, generally. Such information will necessarily include the perspectives of Public Service and CDPHE as well as of the other parties to this proceeding. 31. We therefore order Public Service to submit on or before July 1, 2010, a filing that outlines the emissions reduction plan that the Company intends to propose in its August 2010 filing as well as the options and alternatives it also expects to include in that filing, as informed by the workshop process initiated with the June 11, 2010 meeting. The July 1, 2010 filing must also describe the STRATEGIST modeling runs that Public Service intends to perform in order to analyze the emissions reduction plan and alternatives in the August 2010 filing. Along those lines, the July 1, 2010 filing should present the projected natural gas costs, coal costs, and carbon dioxide emissions costs that Public Service will use in its modeling, as these inputs will likely 12 • Before the Public Utilities Commission of the State of Colorado Decision No. Ct0-0638 DOCKET NO. IOM-245E have a large influence on the costs and rate impacts of the emission reduction plan and alternatives." 32. In furtherance of our obligation to consider job impacts, we require Public Service to explain in this July 1, 2010 filing how such job impacts will be addressed in its August 2010 filing. Finally, because it is our understanding that CDPHE will have completed a preliminary review of emission reduction plans and options included in the August 2010 filing, Public Service should describe the likely levels of emissions reductions that would be achieved under each option to be presented (NOX, SO„, mercury, and CO2). 33. While Public Service's July 1, 2010 filing will provide the Commission with the Company's perspective of the results of the workshop process, we find that additional information from the parties is also required. Therefore, we shall accept written comments from the parties concerning Public Service's July 1, 2010 filing. Such comments shall be due by noon on Tuesday July 6, 2010. We shall also convene a pre-hearing status conference on July 9, 2010 at which time Public Service and the parties shall have the opportunity to provide brief oral responses to the comments filed on July 6, 2010 and to answer our questions. This process is intended to help us determine whether Decision No. C10-0452 should be further modified to accommodate our evidentiary needs and to strike the proper balance between the informational burdens placed on Public Service and the rights of the parties. We may, for instance, determine it is necessary to further modify the discovery process for this proceeding to require the production of responses earlier than is now required under Decision No. C 10-0452. " Paragraph 29 of Decision No. C10-0452 also requires Public Service to produce its projection of future coal and natural gas costs that will be the basis of the cost evaluations required under§40-3.2-206(I)(b)(II),C.R.S. 13 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-2456 34. With respect to the information we expect Public Service's August 2010 filing to contain, our advisors suggest that we order the Company to describe a scenario where no emissions reduction plan is developed and approved under FIB 10-1365. This information would serve as a benchmark against which the Commission could assess whether the emissions reduction plan and any other option presented to the Commission is likely to help protect customers from future cost increases and whether the cost of the emissions reduction plan results in reasonable rate impacts under §§ 40-3.2-205(1)(i) and 40-3.2-205(1)(j), C.R.S. 35. While we understand our advisors' suggestion regarding the role of a benchmark such as this "business as usual" case, we will not require such a scenario be offered as an alternative to the emissions reduction plan set forth in Public Service's August 2010 filing. Furthermore, we are uncertain whether a "business as usual" case can be properly described by Public Service to provide a relevant benchmark against which the costs and rate impacts of an emissions reduction plan under HB 10-1365 can be measured. Therefore, we will look to the Company's July 1, 2010 filing and the comment process that follows for feedback regarding the "business as usual" concept and the need to confirm that any coordinated emissions reduction plan approved by the Commission under HB 10-1365 to meet federal and state Clean Air Act requirements will come at a lower cost than a"piecemeal" approach. 36. Finally, we conclude that we need additional information concerning the AQCC noticing requirements that Public Service has pointed to in its filings as a barrier to the Commission's consideration of significant modifications to the Company's preferred plan or alternative plans developed and supported by the parties. 37. At the Commissioners' Information Meeting held on April 26, 2010, a representative from CDPHE stated that the air quality elements of the plan developed under 14 Before the Public Utilities Commission of the State of Colorado Decision No.C10-0638 DOCKET NO. IOM-245E HB 10-1365 would need to be provided to the AQCC by September 16, 2010 for incorporation into the Regional Haze element of the State Implementation Plan (SIP). The AQCC would then initiate a SIP proceeding on the HB 10-1365 plan; however, the AQCC would not act on the plan, or the Regional Haze SIP element in the plan, until after the Commission approved of the emissions reduction plan under HB 10-1365. The CDPHE representative explained that the AQCC would vacate and re-notice an alternate proposal for the Regional Haze element of the SIP for the facilities covered by the plan if the Commission's deadlines were not met pursuant to HB 10-1365, if Public Service were to withdraw its plan because it is modified by the Commission, or if the AQCC rejects any portion of the plan as approved by the Commission. 38. Although the information we received from CDPHE at the Commissioners' Information Meeting and in CDHPE's Response to Staff's Motion for Clarification filed on June 2, 2010, helps us understand the timeline for the AQCC regarding the Company's emission reduction plan under HB 10-1365, it lacks sufficient detail regarding the degree to which there may be flexibility in the AQCC noticing and hearing processes in order to accommodate the Commission's responsibilities under FIB 10-1365. We therefore order CDPHE to explain in a filing to be submitted on or before July 1, 2010, whether our above representation of the AQCC's expected actions concerning the HB 10-1365 plan is correct, whether the noticing barrier that Public Service describes can be resolved by any alternative process or noticing convention, and how the AQCC normally addresses changes to a SIP (significant or otherwise) during the course of a SIP proceeding. 15 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-063N DOCKET NO. I OM-245E C. Staff's Role in this Proceeding 1. Staffs Motion for Clarification 39. The Commission addressed the role of Staff in Decision No. C10-0452. We stated, Staff will participate as trial staff in this matter, under the leadership of Mr. Gene Camp. However, we do not envision this participation will proceed in a traditional manner. Rather, we view Staff's participation as relatively neutral yet active, providing the Commission with an analysis of the proffered Plan, alternative plans, and responses. We also expect Staff to be active in the process prior to submission of the Plan. Decision No. C 10-0452, ¶ 24. 40. In response to Decision No. C 10-0452, Staff requested further direction from the Commission regarding Staff's role prior to submission of its emissions reduction plan.14 41. The Commission undertook consideration of Staff's role at the May 27, 2010 Pre- Hearing Conference. The Commission declined to order that Staff be included in ongoing meetings between CDPHE and Public Service for the purpose of identifying and vetting potential plans. However, the Commission did generally encourage Staff to meet independently with both CDPHE and the Company. 42. Subsequently, both Public Service and CDPHE filed Responses to Staff's Motion for Clarification on June 2, 2010. In its Motion, Public Service stated "it would be inappropriate for Staff to interfere with the discussions between the utility and CDPHE" because Staff"has no role to play in reviewing the utility and CDPHE modeling."' Similarly, CDPHE stated "staff ' Motion for Clarification of Decision No. C10-0452 and for Shortened Response Time, filed May 21, 2010. 15 Response of Public Service Company of Colorado to Staffs Motion for Clarification, filed June 2, 2010, at 3. 16 • Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E does not have the expertise to contribute to the CDPHE's assessment of state and federal air quality requirements . . . and CDPHE does not have the time and resources to educate, explain, and discuss with Staff or any of the other intervenors such assessments at this time."16 43. Staff sought leave to file a Reply to the Responses of CDPHE on June 4, 2010. 17 In its Reply, Staff reasserted its desire for full participation in meetings between Public Service and CDPHE.1e As a compromise, Staff suggested bi-weekly public meetings, at which both Public Service and CDPHE would be represented, in order for the Commission and intervening parties to receive an update on the vetting of plans and how the selection criteria are being applied to various plans. Further, Staff suggested that, under these circumstances, the Commission may wish to have Staff work as advisors in this Docket, and to convert the Staff Consultant into an Independent Evaluator, in the mold of Docket No. O7A-447E. 44. The Commission undertook further consideration of this issue at the June 8, 2010 Commissioners' Deliberations Meeting. 45. The Commission believes it is to the benefit of both Public Service and CDPHE to engage Staff prior to August 13, 2010. To the extent both Public Service and CDPHE can fully explain why certain scenarios or potential plans are rejected, they may be able to avoid significant and potentially crippling amounts of discovery. However, the Commission still declines to order that Public Service and CDPHE include Staff in their ongoing meetings. We 16 Response of the Colorado Department of Public Health and Environment to Staff's Motion for Clarification of Decision No. C10-0452, filed June 2,2010, at 4-5. " Staff of the Commission's Motion for Leave to File Reply to Colorado Department of Public Health and Environment's Response to Staff's Motion for Clarification of Decision No.C10-0452, filed June 4,2010. e Staff of the Commission's Reply to the Response of the Colorado Department of Health and Environment to Staff's Motion for Clarification of Decision No. C 10-0452,filed June 4,2010. 17 Before the Public Utilities Commission of the Stale of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E. acknowledge that certain technical and timing limitations may necessarily inhibit Staff's full participation in the development process of the Company's emission reduction plan. 46. Nonetheless, we believe the provision of some process-related information will be helpful to the Commission and the parties in this case. As such, we will order Public Service to include a discussion of which proposed alternative plans were rejected during the preliminary review process, as well as information regarding why those scenarios were ultimately rejected or discarded. To the extent certain alternatives have already been rejected by either CDPHE or Public Service, the Commission believes this information will help to focus the scope of this proceeding. In other words, we decline to adopt the biweekly information meetings proposed by Staff, but we seek to obtain similar information through this alternate mechanism. 47. Further, we believe Staff has a unique role in this proceeding that will ultimately help the Commission and the process, even in the absence of mandated inclusion in the CDPHE/Public Service meetings. As such, we decline to convert Staff to advisory staff in this Docket. D. Staff Consultant 1. Comments Received Pursuant to Decision No. C10-0452 48. In the Order opening this Docket, the Commission solicited comments from interested parties regarding the Staff Consultant. Decision No. C10-0452 at ¶ 27 (seeking comment on "the skills that should be required for the consultant and any qualifying or disqualifying issues that should weigh into the Staff's selection determination."). We further stated such comments would be considered if they were filed by May 21, 2010. 49. A number of parties filed comments on this matter, including Public Service; Climax Molybdenum Company and CF&I Steel, LP (collectively, Climax/CF&I); Peabody; 18 Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. IOM-245E Colorado Springs Utilities and Tri-State Generation and Transmission Association, Inc.; CIEA; and the OCC. The Commission thanks these parties for their comments, and directs Staff to take such comments into consideration. 50. In addition, the Colorado Mining Association (CMA) sought an extension of time to file comments on this topic until "after the Commission provides more detail regarding the scope of work to be required by the consultant, and how the consultant's work product will be utilized in this proceeding."19 Peabody similarly requested an extension of time.20 51. The Commission determines additional comment from parties will not be of help to Staff in selecting its consultant, and therefore denies CMA's Motion. 2. OCC Comments 52. In its comments, the OCC argues that the Commission lacks the authority to order Public Service and ultimately its ratepayers to pay for the Staff Consultant.'-' The OCC argues that if the Commission hires the Staff Consultant, it must pay for such consultant from its existing budget, through the fixed utility fund established by § 40-2-114, C.R.S. It contends that requiring Staff to enter into a contract with the Staff Consultant and further requiring Public Service to pay for the Staff Consultant and subsequently recover the expenses in a future rate case would be an inappropriate expansion of the Commission's budget authorization. The OCC also points out that the fiscal note prepared by the Commission and submitted to the General 19 CMA Motion for Extension of Time to File Comments Regarding Selection of a Staff Consultant, filed May 21, 2010, 2°Comments of Peabody Energy Corporation Regarding the Selection of a Staff Consultant, filed May 21, 2010. 21 Comments of the Colorado Office of Consumer Counsel, filed May 21,2010. 19 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E Assembly in connection with HB 10-1365 did not indicate that the Commission would need additional funds to hire such a consultant. 53. Article XXV of the Colorado Constitution delegated broad authority to regulate public utilities to the Commission, subject only to any restrictions subsequently imposed by the General Assembly. It is well-settled that the Commission's authority under the Colorado Constitution is not narrowly confined, but extends to incidental powers necessary to enable the Commission to regulate public utilities. See, e.g., Mountain States Tel. and Tel. Co. v. Pub. Utils. Comm 'n, 763 P.2d 1020, 1025 (Colo. 1988). Once the General Assembly acts, the scope of the Commission's authority is controlled by the statute. Peoples Natural Gas v. Pub. Gills. Comm'n, 626 P.2d 159, 161 (Colo. 1981). 54. In Decision No. C10-0452, we stated that Staff's participation in this proceeding will be relatively neutral. Because of this role, we expect the retention of an expert Staff Consultant will be especially beneficial to the Commission. 55. In enacting HB 10-1365, the General Assembly has not imposed any restrictions on the power of the Commission to retain the Staff Consultant and to pay for it in the manner described in Decision No. C10-0452. Finally, the OCC has not presented any authority for the proposition that a fiscal note prepared by an agency is binding once legislation is enacted. 56. We conclude that the Commission is not precluded under the present circumstances from adopting the process pertaining to the Staff Consultant discussed in Decision No. C10-0452. 57. In the alternative, the OCC sought clarification as to the treatment of documents or reports created by the Staff Consultant in the course of this Docket. The OCC suggests any 20 Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. IOM-245E reports of the consultant be placed into the evidentiary record and that all parties have an opportunity to cross-examine the sponsor of the evidence. 58. The Commission agrees. Any reports or other documents prepared by the Staff Consultant shall be placed into the record and subjected to cross-examination. 3. Recovery of Staff Consultant Costs 59. In its Motion for Reconsideration and Clarification to Decision No. C10-0452, Public Service requests that the Commission change its decision from allowing the Company to accrue to expenses associated with the Staff Consultant in order to seek recovery of such costs in a future general rate case to allowing the Company to recover such costs through its Electric Commodity Adjustment (ECA) instead. Public Service explains that while the Company does not object to the hiring of the Staff Consultant, the Company does object to being forced to pay for the Staff Consultant along the lines suggested by the Commission, which, according to Public Service, would be equivalent to the Company making an interest-free loan to the State of Colorado. 60. Public Service points out that in Docket No. 07A-447E, we allowed the Company to recover the costs associated with the Independent Evaluator hired by the Commission through its ECA. We find that such an approach is appropriate in this instance as well and grant Public Service's request. E. Data Production Pursuant to Decision No. C10-0452 1. Paragraph 29 of Decision No. C10-0452 61. When opening this proceeding by Decision No. C10-0452, the Commission required Public Service to produce certain records and documents that we felt would be helpful for the Commission, parties, amici curiae, and others in developing a record and 21 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E recommendations regarding Public Service's emissions reduction plan. Paragraph 29 of Decision No. C 10-0452 specifically required the Company to produce documents regarding 2008 emissions of NON, SON, mercury, and CO2, as well as studies and plans regarding the retrofit of any Colorado coal-fired generation unit owned or controlled by the Company. Paragraph 29 further required the Company to produce all board meeting minutes and presentations regarding such potential retrofits, to file "BART" plans for coal plants submitted to the CDPHE, to submit general arrangement drawings for each coal-fired unit, to produce documents concerning existing natural gas pipeline capacity for delivery to the coal-fired units, and to provide projections of the coal and natural gas costs that will be the basis of the evaluations under HB 10-1365. Furthermore, we required Public Service to produce records concerning various performance measures for its natural gas and coal-fired plants and records concerning the number of full-time employees at those plants. 62. In its Motion for Reconsideration and Clarification to Decision No. C10-0452, Public Service requested that the Commission limit the scope of paragraph 29 in the following ways: • Limit data production to only those generation facilities owned by Public Service; • Limit data production regarding coal fired generation units to those facilities in which Public Service has a full or significant ownership interest (i.e., Cherokee, Valmont, Pawnee,Arapahoe, and Hayden); • Exempt Craig, Cameo, and Comanche coal fired generation units from the production order; • Eliminate the requirement for daily data on NON, SON, and CO2 emissions; • Clarify that emissions data be provided in the units of lbs/hr and tons/yr; and • Produce mercury emissions data in the form of lbs/yr. 22 • Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E 63. Public Service explained that it does not have in its possession the data requested for plants owned by Independent Power Producers (IPPs). Public Service also explains that it has only a small ownership interest in the Craig station, that it does not operate the Craig station, and that the Craig station will not be considered in its emissions reduction plan filed under HB 10-1365. The Company further points out that the Cameo station is set to close at the end of 2010 and that the Comanche station recently installed new emissions controls, implying that emissions data from 2008 for both plants would not be relevant. 64. Public Service explained that it does not process daily emissions data for NOx, SON, and CO2 and that further analysis would be required to produce daily data as required under paragraph 29. Similarly, the Company claimed that it only has annual emissions data for mercury in the form of lbs/year. 65. In response to Public Service's request to limit the data sought under paragraph 29 of Decision No. C10-0452, the Gas Intervenors insisted that the Company should be required to produce more data in order to evaluate and compare the system-wide impacts of the scenarios set forth in the Company's August 2010 filing. For example, the Gas Intervenors seek similar types of information as sought in paragraph 29 but for future years (and not just 2008) and for all units on the Company's system. The Gas Intervenors further complained that resource planning analyses, such as those supported by STRATEGIST, require emissions to be expressed in terms of pounds per million BTUs' of fuel consumed from each plant; therefore the Gas Intervenors want the Commission to order Public Service to provide such emissions measures for future years in order to support a forward-looking analysis of emissions reductions.22 12 Gas Intervenors' Response to Public Service's Motion for Reconsideration and Clarification filed on May 21, 2010; Gas Intervenors' Supplemental Response to Public Service's Motion for Reconsideration and Clarification filed on May 25, 2010. 23 Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. 10M-245E 66. Peabody similarly called on the Commission to reject Public Service's request to narrow the scope of the documents to be produced pursuant to paragraph 29 of Decision No. C10-0452.'-' Peabody stated that the full set of information required under paragraph 29 is essential to the presentation that Peabody and other intervenors plan to make at the hearing in this proceeding. 67. By Decision No. C10-0501 mailed on May 19, 2010, the Commission granted Public Service a temporary exemption from the requirement to produce the documents affected by the Company's motion. We then took up whether the Company should have a permanent exemption from these data production requirements at the pre-hearing conference on May 27, 2010 and again at our Commissioners' Deliberations Meeting on June 8, 2010. 68. We find that Public Service has shown good cause for why the Commission should now limit the data to be produced pursuant to paragraph 29 of Decision No. C10-0452. We therefore narrow the data request to the plants in which Public Service has full or significant ownership (thus exempting the IPP plants), and we exempt the Craig, Cameo, and Comanche stations. Likewise, we shall not require the production of daily emissions data, we will accept emissions data in the units of lbs/hr and tons/yr, and we will accept the mercury emissions data as an annual total expressed in lbs/year. 69. Public Service also requested in its Motion for Reconsideration and Clarification that the Commission clarify the time period associated with the request set forth in subparagraph (k) of paragraph 29 in Decision No. C10-0452, as only the capacity factor is labeled with a 2008 date. We clarify now that we intended for each data item in subparagraph (k) to correspond to the 2008 calendar year. 23 Peabody's Motion for Relief on Pending Procedural Questions filed on May 26,2010. 24 • Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. 10M-245E 70. Public Service further requested that the Commission clarify what we meant by "capital cost for each existing Colorado coal-fired or natural gas-fired generation unit." We clarify now that we seek the original capital cost of each of these facilities, the 2008 depreciated book value of each of these facilities, the 2008 depreciation expense for each of these facilities, and the annual capital expenditures for each of these facilities in 2008. Consistent with this clarification, Public Service shall file such information within seven calendar days of the effective date of this Order. 71. It has also come to our attention that data submitted in response to paragraph 29 of Decision No. C 10-0452 was e-filed in PDF format. While the Commission's e-filing process causes all data to be converted into PDF documents, the Commission retains access to the native format files. While PDF documents are acceptable for narrative information, they are suboptimal for numerical information. We therefore require that Public Service resubmit in this proceeding the numerical information that it has already filed as of the effective date of this Order in native, electronically executable formats (e.g., in Microsoft Excel format). Such resubmitted information is due within seven calendar days of the effective date of this Order. Similarly, all numerical data of the sort sought under paragraph 29 of Decision No. C 10-0452 shall be filed by Public Service in native, electronically executable formats. 72. As a courtesy to the parties and amici curiae, we also request that Public Service provide the resubmitted and new numerical data in native, electronically executable formats to those parties and amici curiae consistent with the discussion above (e.g., by email). 25 Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. IOM-245E 73. Finally, Public Service requested in its Motion for Reconsideration and Clarification that the Commission modify paragraph 30 of Decision No. C10-0452 to require a single update to the information produced under paragraph 29 as opposed to multiple "immediate" updates based on new information. Public Service explained that it would be burdensome for the Company to make multiple immediate filings and that a single update at the time of the filing of its August 2010 emissions reduction plan should suffice. We agree, and we therefore require only a single update to the information sought under paragraph 29 of Decision No. C10-0452, if needed, at the time the Company tiles an emissions reduction plan under HB 10-1365. 2. Paragraph 38 of Decision No. C10-0452 74. Paragraph 38 of Decision No. CIO-0452 provides "[i]nterested persons, including non-parties, may file written requests with the Commission asking that the Commission order Public Service to produce additional documents." The Commission has the authority to order production of documents pursuant to its audit power, set forth at § 40-6-106, C.R.S.'-" 75. Public Service sought reconsideration of this use of the Commission's audit power.'s In that Motion, Public Service characterized this portion of the Decision as a "back- door method of discovery prior to the filing of the utility's plan,' and asked the Commission to delete this paragraph from its Decision. 24 Paragraph 39 of Decision No. C10-0452 incorrectly identified the source of the Commission's audit power as §40-0-107, C.R.S. 25 Public Service Motion for Reconsideration and/or Clarification of Commission Decision No. CIO-0452 and Motion to Shorten Response Time to Three Days, filed on May 28, 2010. 26 Id. at 6. 26 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. 10M-245E 76. The Gas Intervenors, WRA, and Southwest Generation all expressed their support of paragraph 38 in various responsive pleadings.27 Public Service subsequently reasserted its opposition to paragraph 38.29 77. The Commission declines to reconsider or delete paragraph 38 of Decision No. C10-0452. However, by way of clarification, the Commission will only grant data requests — either on its own behalf or at the request of interested parties — that are similar to those it requested in Decision No. C10-0452. The Commission will utilize paragraph 38 for the production of books, accounts, reports, and other historic data. F. Discovery 78. Peabody asserts "[b]eginning discovery on August 13, 2010 will effectively impede intervenors' ability to obtain meaningful discovery and from conducting a thorough review and analysis of such discovery prior to submission of its testimony in this proceeding."19 Peabody argues this disadvantage would be exacerbated by any delay in obtaining responses from Public Service or any discovery dispute that may arise. As such, Peabody requests discovery requests be considered propounded on the day served and not as of August 13, 2010. 79. Similarly, Climax/CF&I objects to the Commission's decision to disallow discovery propounded prior to August 13, 2010, and deeming any requests served before that 27 Gas Intervenors' Response to Motion of PSCO for Reconsideration and/or Clarification of Commission Decision No. C10-0452; Gas Intervenors' Supplemental Response to Motion of PSCO for Reconsideration and/or Clarification of Commission Decision No. C10-0452; Western Resources Advocates' Response to Public Service Company of Colorado's Motion for Reconsideration and/or Clarification of Decision No. CIO-0452 and for Shortened Response Time, filed May 26, 2010; Southwest Generation Operating Company, LLC's Response to Gas Intervenors' Supplemental Response to Motion of PSCO for Reconsideration and/or Clarification of Decision No. C10-0452 and for Shortened Response Time, filed June 3,2010. 28 Comments of Public Service Company of Colorado on Management of Hearing and Discovery Processes, filed June 4,2010. 29 Peabody Comments Regarding Procedural and Hearing Efficiencies, filed June 4, 2010. 27 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E date as served on August 13, 2010.10 Climax/CF&I argues this is a departure from subparagraph 14O5(a)(II) of the Commission's Rules of Practice and Procedure, 4 Code of Colorado Regulations (CCR) 723-1, which excludes limitations on when discovery may begin. Climax/CF&I argues the Commission has not set forth good cause for impliedly waiving this Rule. Further, Climax/CF&I believes the rule should not be waived, because parties should not be limited in their ability to gather information. 1. Discovery Limits 80. Discovery in Commission proceedings is controlled by Rule 1405, 4 CCR 723-1. This Commission rule incorporates, by reference but with some exceptions, Rules 26 through 37 of the Colorado Rules of Civil Procedure (C.R.C.P.). However, the Commission's Rules specifically do not incorporate the discovery limitations identified in C.R.C.P. 26(b)(2). Subparagraph 14O5(a)(II), 4 CCR 723-1. Subparagraph 14O5(a)(III) provides these incorporated C.R.C.P. Rules, and the related exceptions, will govern discovery "[u]nless the Commission orders otherwise." 81. C.R.C.P. 12(b) identifies four different types of discovery that may be applicable in this proceeding," with relevant limitations on each. First, a party may take one deposition of each adverse party and of two other persons. C.R.C.P. 26(b)(2)(A). A deposition is the questioning of a specific individual, either through oral examination or written questions. Depositions are further controlled by C.R.C.P. 30, 31, and 32. 70 Climax/CF&l Comments Regarding Procedural Efficiencies, filed June 4,2010. 3 In addition to the types of discovery discussed here, the C.R.C.P. also address physical or mental examination of a person in the custody or under the legal control of a party, pursuant to C.R.C.P. 35, which is irrelevant for purposes of this Docket. 28 Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. IOM-245E 82. Second, a party may serve on each adverse party 30 written interrogatories, each of which shall consist of a single question. C.R.C.P. 26(b)(2)(B). Interrogatories are written questions promulgated by a party to another party. Interrogatories are further controlled by C.R.C.P. 33. 83. Third, a party may serve up to 20 requests for production of documents or tangible things or for entry, inspection of testing of land or property. C.R.C.P. 26(b)(2)(D). A production of documents request consists of leave to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of C.R.C.P. 26(b) and which are in the possession, custody, or control of the party upon whom the request is served. C.R.C.P. 34(a)(1). 84. Fourth, a party may serve on each adverse party 20 requests for admission each of which shall consist of a single request. C.R.C.P. 26(b)(2)(E). A request for admission is a written request seeking confirmation "of the truth of any matters within the scope of C.R.C.P. 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the requests." C.R.C.P. 36(a). A party may also serve requests for admission of the genuineness of up to 50 separate documents that the party intends to offer into evidence at trial. C.R.C.P. 26(b)(2)(E). 85. The Commission will adopt the limitations on discovery set forth in C.R.C.P. 26(b) for this proceeding. Each party, with the exception of Staff, will have the 29 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E following discovery available: one deposition of each adverse party; 30 written interrogatories; 20 requests for production; 20 requests for admission; and 50 requests for admission of genuineness. Staff need not adhere to these limitations, so long as it does not act as a conduit for discovery by other parties. Parties may reach agreements to engage in additional discovery. If a party is unable to reach such an agreement but nonetheless desires additional discovery, that party may seek modification of the limitations. See C.R.C.P. 26(b)(2)(F). 2. Commencement of Discovery 86. Peabody and CF&I/Climax ask the Commission to reconsider paragraph 32 of Decision No. C10-0452, which limits when discovery may begin.' Peabody and CF&I/Climax contend discovery should start immediately. The Commission declines to alter this portion of Decision No. C10-0452 at this time. However, the Commission reserves the right to alter the August 13, 2010 date identified as tolling the clock for discovery responses. 3. Objections to Discovery 87. Under the process set forth in Decision No. C10-0452, discovery requests submitted prior to August 13, 2010 will be treated as though they were propounded on August 13, 2010 for purposes of tolling response times. 1132. The Commission further set forth a process for resolving discovery disputes in paragraph 38 of Decision No. C 10-0452. 88. Peabody is concerned this discovery process may unfairly limit the discovery intervenors may propound, particularly in the event of discovery disputes." 32 Peabody Comments Regarding Procedural and Hearing Efficiencies, filed June 4, 2010; Climax/CF&l Comments Regarding Procedural Efficiencies, filed June 4, 2010. " Peabody Comments Regarding Procedural and Hearing Efficiencies, filed June 4,2010. 30 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. I OM-245E 89. The Commission shares this concern. As such, we will alter the discovery procedure with regard to discovery disputes. Parties may still propound discovery prior to August 13, 2010. The party receiving the discovery request will then have seven calendar days to file any objections to that discovery request. Objections would be resolved, to the extent possible, by an Administrative Law Judge as they occur, prior to August 13, 2010. If the party receiving the discovery request does not object to the request, that request will be treated as though it were propounded on August 13, 2010 for purposes of response time, as set forth in paragraph 32 of Decision No. C10-0452. If the party receiving the discovery request fails to object within these time periods, any such objection will be deemed to have been waived. 4. Protection of Highly Confidential Material 90. WRA recommends amending the procedural schedule to provide for consideration of claims of extraordinary protection of data prior to August 13, 2010." Public Service supports modifying the procedural schedule and proposed a timeline for the Commission's consideration of such confidentiality claims.J5 • 91. Rather than identify a specific schedule to address extraordinary protection claims, the Commission proposes waiving the relevant portions of Rules 1100 and 1101, 4 CCR 723-1, in order to create categorical access to information claimed as confidential or highly confidential by Public Service.36 14 Western Resource Advocates' Motion for Modification of Decision No. C10-0452, and for Shortened Response Time, filed May 24, 2010. 15 Response of Public Service Company of Colorado to Western Resource Advocates, filed June 2, 2010. 36 Information claimed as confidential or highly confidential by other parties would be addressed using the Commission's existing process, as set forth in our Rules. 31 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0638 DOCKET NO. IOM-245E 92. The first category, Category One, would include all parties that have no commercial or competitive relationship with Public Service. This would include state agencies," other governmental agencies or local governments,' environmental organizations,}° and retail customers.4° Category One parties would have limited access to information claimed as confidential or highly confidential by Public Service. Specifically, each Category One party would be allowed to identify two internal people and one attorney permitted access to the information, subject to signing all relevant confidentiality agreements. 93. The second category, Category Two, would include those parties with a potential or real commercial interest in information Public Service may provide," other utilities who are wholesale market participants such as rural electric cooperatives and municipal utilities,42 as well as associations representing entities with a potential or real commercial interest in the information.43 Category Two parties would have further limited access to information claimed as confidential or highly confidential by Public Service. Specifically, each Category Two party would be allowed to identify one external expert and one external attorney permitted access to the information, subject to signing all relevant confidentiality agreements. 3] Staff; the Office of Consumer Counsel; the Governor's Energy Office; and the Colorado Department of Public Health and Environment. 98 School District no. I; Associated Governments of Northwest Colorado; Board of County Commissioners of Weld County, Colorado; Boulder County; City of Boulder; and the City and County of Denver. 39 Western Resource Advocates. J° Wal-Mart Stores, Inc. and Sam's West, Inc.; Federal Executive Agencies; Blanca Ranch Holdings, LLC and Trinchera Ranch Holdings, LLC; Ms. Leslie Glustrom; and Mr. Ronal Larson. 41 Peabody Energy Corporation; Western Fuels — Colorado and Colorado Rural Electric Association; Colorado Interstate Gas Company and Wyoming Interstate Company, LLC; Anadarko Energy Services Company; Noble Energy, Inc., Chesapeake Energy Inc., and EnCana Corporation; Southwest Generation; Thermo Power & Electric LLC;and Suncor Energy(U.S.A.), Inc. J2 Colorado Springs Utilities and Tri-State Generation and Transmission Association, Inc.; Intermountain Rural Electric Association; and Holy Cross Electric Association, Inc. J1 Colorado Independent Energy Association; Colorado Solar Energy Industries Association; Colorado Oil & Gas Association; Interwest Energy Alliance; Colorado Mining Association; and American Coalition for Clean Coal Electricity. 32 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-11638 DOCKET NO. I OM-245E 94. A third category of parties, Category Three, may also be required to include parties with such a sensitive interest in the information that access to the confidential information must be restricted to viewing the documents by an outside expert and external attorney. In the situation of such a Category Three party, the identified individuals would need to arrange with Public Service directly to receive access to the documents under Public Service's supervision. The Commission does not believe, at this time, that any of the parties' interests rise to a level that would necessitate this type of extreme treatment. 95. The Commission believes such a structure of categories would avoid the procedural delay created by a case-by-case determination of confidentiality claimed by Public Service. However, the Commission does acknowledge such an approach would be unique. As such, the Commission seeks comment from the parties regarding this proposed structure of categories, as well as its value in comparison to an expedited timeline as identified by WRA and Public Service. The Commission will make a final determination on its treatment of claims regarding confidentiality at the July 9, 2010 pre-hearing status conference.J4 G. Additional Hearing Dates 96. Due to the large number of intervenors in this proceeding, we find it necessary to modify Decision No. C10-0452 in order to add several days of hearings. We shall now commence the hearing on the morning of Thursday, October 21, 2010 and will conduct full days of hearings on October 22, 25, and 26, 2010. In addition, we are scheduling a day of hearings on Saturday, October 30, 2010; however that day of hearings may be vacated if we find it will not be needed. 44 The Commission requests that Public Service and the parties provide any comments on this proposed structure of categories on or before noon on Tuesday, July 6, 2010, consistent with our schedule for a pre-hearing status conference on Friday,July 9,2010. 33 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-9638 DOCKET NO. IOM-245E 97. We recognize that with the addition of these hearing days, further modifications to the procedural schedule in this Docket are necessary (e.g., the filing of pre-hearing statements of position is presently required on October 22, 2010 and a pre-hearing conference may be needed to address pre-hearing motions). We also acknowledge that we have received several suggestions regarding the scope and conduct of this proceeding in filings made on June 4, 2010 (e.g., Anadarko Energy Service's proposal for allocating cross-examination time and Staff's proposal to bifurcate the proceeding). We will address such additional changes to the procedural schedule following the pre-hearing status conference on July 9, 2010. H. Federal Executive Agencies' Motion for Pro Hac Vice 98. Counsel for the Federal Executive Agencies (FEA), Captain Shayla L. McNeill, filed a motion to appear pro hac vice. C.R.C.P. 221(1) lists the requirements that out of state attorneys must meet to appear on a particular matter in Colorado. Further, C.R.C.P. 221.1 specifically addresses appearances by out of state attorneys before Colorado administrative agencies. It provides that all requirements contained within C.R.C.P. 221(1) must be followed, except those requiring designation of a Colorado associate attorney. 99. In this case, we find the above identified attorney for FEA complied with all of the requirements enumerated in C.R.C.P. 221(1). This motion is also unopposed. We therefore grant this motion to appear pro hac vice. 34 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-0635 DOCKET NO. IOM-245E H. ORDER A. The Commission Orders That: 1. Public Service Company of Colorado (Public Service) shall file, on or before July 1, 2010, the following: • An outline of the emissions reduction plan that Public Service intends to propose in its filing under § 40-3.2-204, C.R.S., as well as outlines of the options and alternatives Public Service also expects to include in that filing consistent with the discussion above; • A description of the STRATEGIST modeling runs that Public Service intends to perform in order to analyze the emissions reduction plan and alternatives in that filing under § 40-3.2-204, C.R.S.; • A presentation of the projected natural gas costs, coal costs, and carbon dioxide emissions costs that Public Service will use in its modeling; • An explanation on how Public Service will address job impacts in its filing under § 40-3.2-204, C.R.S.; • A description of the likely levels of emissions reductions that would be achieved under each option in its filing under § 40-3.2-204, C.R.S.; and • A discussion of which proposed alternative plans were rejected by Public Service or the Colorado Department of Health and Environment (CDPHE) during the development of the emissions reduction plan, as well as information regarding why those alternatives were ultimately rejected or discarded. 2. Intervenors may file responses to Public Service's July 1, 2010 filing on or before noon on July 6, 2010, consistent with the discussion above. 3. A pre-hearing status conference is scheduled for: DATE: July 9, 2010 TIME: 9:00 a.m. through 12:00 p.m. PLACE: Commission Hearing Room 1560 Broadway, Suite 250 Denver, Colorado 35 Before the Public Utilities Commission of the State of Colorado Decision No. C10-0638 DOCKET NO. IOM-245E 4. CDPHE, as an intervenor in this proceeding, shall make a filing on or before July 1, 2010, consistent with the discussion above. 5. Public Service's Motion for Reconsideration and Clarification filed on May 18, 2010 is granted, in part, and denied, in part, consistent with the discussion above. 6. Public Service shall resubmit the numerical information that it has already filed with the Commission as of the effective date of this Order in native, electronically executable formats (e.g., in Microsoft Excel format). Such resubmitted information is due within seven calendar days of the effective date of this Order. Public Service shall further file all numerical data that it is required to produce pursuant to Decision No. C10-0452 in native, electronically executable formats after the effective date of this Order. 7. The procedural schedule established by Decision No. C10-0452 is modified with the addition of the following hearing dates: DATES: October 21, 22, 25, 26, and 30, 2010 TIME: 9:00 a.m. through 5:00 p.m. PLACE: Commission Hearing Room 1560 Broadway, Suite 250 Denver, Colorado 8. The Motion for Clarification of Decision No. C10-0452 and for Shortened Response Time filed by the Staff of the Colorado Public Utilities Commission (Staff), is granted, in part, and denied, in part, consistent with the discussion above. 9. The provisions for discovery set forth in Decision No. C10-0452 are modified, consistent with the discussion above. 10. The motion to appear pro hac vice on behalf of the Federal Executive Agencies filed by Captain Shayla McNeill is granted. 36 Before the Public Utilities Commission of the State of Colorado Decision No. CIO-06.38 DOCKET NO. IOM-245E I1. This Order is effective upon its Mailed Date. B. ADOPTED AT COMMISSIONERS' DELIBERATIONS MEETING June 8, 2010. (S E A L) THE PUBLIC UTILITIES COMMISSION it.oF Coto oOF THE STATE OF COLORADO R Z.1 a::: DI. TARPEY ATTEST:TEST: A -TRUE COPY a, — MATT BAKER Commissioners Doug Dean. Director 37 Hello