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Decision No. C09-0234
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
DOCKET NO. 09R-0158EG
IN THE MATTER OF THE EMERGENCY ELECTRIC AND GAS RULES IMPLEMENTING
PROCEDURES FOR APPLICATIONS STEMMING FROM THE AMERICAN RECOVERY
AND REINVESTMENT ACT OF 2009.
DECISION ADOPTING EMERGENCY RULES
Mailed Date:
Adopted Date:
March 5, 2009
March 4, 2009
I. BY THE COMMISSION
A. Statement
1. This matter comes before the Commission for adoption of emergency rules
implementing procedures for applications stemming from the American Recovery and
Reinvestment Act of 2009 (ARRA).
2. The ARRA was signed into law on February 17, 2009. This significant piece of
federal legislation addressing numerous topics intending to stimulate the American economy.
Within the legislation are important provisions that may permit public utilities to receive federal
funding for various programs and projects. Certain of these provisions may require the utility to
submit a grant request within 30 days of the publishing of grant criteria by the U.S. Department
of Energy.
3. Because the Commission's current rules of procedure do not set forth a default
process or application description sufficient to meet the requirements of the ARRA, we now
adopt on an emergency basis (i.e., without compliance with the rulemaking requirements for
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Before the Public Utilities Commission of the State of Colorado
Decision No. C09-0234 DOCKET NO. 09R-0158EG
permanent rules set forth in § 24-4-103, C.R.S.) the emergency rules appended to this Decision
as Attachments A and B.
4. We take this action in accordance with the provisions of §§ 40-2-108(2) and 24-4-
103(6), C.R.S.
5. We find that adoption of the emergency rules is imperative and necessary to
implement the requirements of the ARRA. Compliance with the rulemaking requirements
associated with permanent rules, pursuant to § 24-4-103, C.R.S., would be contrary to public
interest.
6. The rules attached to this order shall become effective on the mailed date of this
Decision, and shall remain in effect until permanent rules become effective or for 210 days,
whichever period is less.
II. ORDER
A. The Commission Orders That:
1. The rules appended to this Decision as Attachments A and B are hereby adopted
as emergency rules consistent with the above discussion.
2. The attached rules shall be effective on the mailed date of this Decision.
3. This Order is effective upon its Mailed Date.
Before the Public Utilities Commission of the State of Colorado
Decision No. C09-0234 DOCKET NO. 09R-0158EG
B. ADOPTED IN COMMISSIONERS' DELIBERATIONS MEETING
March 4, 2009.
(S F, A I .
ATTEST: A [RUE COPY
Doug Dean,
Director
THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
RONALD J. HINZ
JAMES K. TARPEY
MATT RAKER
3
Commissioners
Attachment A
Docket No. 09R-0158EG
Decision No. C09-0234
Page 1 of 3
3954. — 3974. [Reserved].
3975. Applications for financial incentives including ratemaking treatment concerning
projects and programs stemming from the American Recovery and Reinvestment
Act (ARRA).
In order to encourage electric utilities in the state of Colorado to aggressively seek funding for
programs and projects under the ARRA, the Commission shall allow for an expedited review of
applications filed to request financial incentives including ratemaking treatment. At the applicant's
option, it may choose the procedural process outlined in this rule or propose an alternative
procedural schedule. There is no requirement that a utility use this process or obtain prior
approval of a planned ARRA-funded project. The utility may choose to raise cost recovery and
incentives at a later point after ARRA funding has been obtained.
(a) The Commission shall allow for an expedited review process for applications filed for
financial incentives including ratemaking treatment, as follows:
(I)
The Commission shall give priority to applications filed pursuant to this rule and
shall dispose of the application within 45 days after filing unless the Commission,
for good cause shown, enters an order continuing the proceeding and stating
fully the facts necessitating the continuance. The Commission may dispose of a
non -contested application without a hearing, as provided by § 40-6-109(5),
C.R.S.
(II) The intervention and notice period shall run for ten days after the notice is mailed
by the Commission. The Commission shall mail notice of the application within
three business days of the filing of the application. If it intends to participate as a
party, Staff of the Commission is required to file its notice of intervention as of
right within the ten day notice period. Any party requesting a hearing on the
application must clearly state so in its request for intervention and set forth its
reasons that a hearing is necessary.
(III) Response time to all motions to intervene by permission shall be three business
days. All motions to intervene shall be served on the applicant through electronic
mail at the electronic mail address provided in the application.
(IV) Response time to audit and discovery shall be three business days. Discovery
rights and obligations shall begin upon the Commission's grant of a motion to
intervene or the filing of an intervention by right. The Commission may enter an
order limiting the number of discovery and audit questions based on the scope of
the application and the number of interventions.
(V) If a hearing is scheduled, summaries of answer testimony shall be due ten days
prior to the scheduled hearing date.
(VI) Oral legal arguments, expanded answer testimony, rebuttal testimony and
surrebuttal testimony will be allowed at hearing.
(VII) Absent a showing of good cause to the contrary, response time to motions shall
be three business days.
Attachment A
Docket No. 09R-0158EG
Decision No. C09-0234
Page 2 of 3
(b) Contents of Application. All applications filed pursuant to this rule 3975 shall include, in
addition to the information required by rule 3002(b), the following information, either
within the application or in attached exhibits:
(I)
A description of the program(s) or project(s) for which the application is
requesting a financial incentive. This description shall include a justification for
how the program(s) or project(s) is additive to current requirements or
commitments. If the program(s) or project(s) is not additive, an explanation of
why the request for financial incentives is warranted;
(II) A statement regarding whether the program(s) or project(s) will proceed absent
the Commission's approval of the requested financial incentive;
(III) An estimate of the costs for the program(s) or project(s) and the financial
incentive for which federal funding is sought along with an identification of the
preferred cost -recovery mechanism and timeline the applicant expects to request
in the future;
(IV) A description of how the proposed program(s) or project(s) will meet the goals of
the ARRA and the state of Colorado;
(V) A citation to the applicable section of the ARRA through which federal funds will
be sought;
(VI) An explanation of the process at the federal and state level to request and be
awarded funds, including known milestone dates;
(VII) Justification for expedited treatment from the Commission;
(VIII) Type(s) of financial incentive the applicant is requesting from the Commission;
(IX) Justification as to why the requested financial incentive is necessary, just and
reasonable, and is in the public interest. This shall include, but is not limited to, a
description of the applicant's capital budget for the current year and the next
three years and of the impact the program(s) or project(s) will have on the capital
budget for each of those years;
(X) A plan for accountability and tracking of program(s) or project(s), including
proposed measurement and verification of program goals; how the plan complies
with federal accountability standards; and identification of how the program(s)
and project(s) revenues and costs will be separately identified in the applicant's
books of account;
(XI) If competitive bidding is already required by Commission rule, a description of
how the resources for the program(s) or project(s) will be acquired through
competitive bidding, or justification as to why a waiver of the Commission's
competitive bidding rules is necessary;
(XII) Identification of all additional waivers of Commission rules or decisions the
applicant anticipates may be necessary to complete the program(s) or project(s)
if the applicant's request for federal funding is granted;
Attachment A
Docket No. 09R-0158EG
Decision No. C09-0234
Page 3 of 3
(XIII) Any additional requests to the Commission that the applicant anticipates will be
necessary if the applicant's request for federal funding for the program(s) or
project(s) is accepted; and
(XIV) Identification of all other requests for ARRA funding that the applicant, or its
affiliates, has already made or intends to make. This list shall include requests
made for programs and projects in other states. The list shall also include any
financial incentive awarded by other state commissions associated with the
ARRA funding requests.
(c) The applicant shall meet with Staff of the Commission to explain an anticipated request at
least seven calendar days prior to the filing of an application for approval of financial
incentives. The applicant and Staff may agree to a shorter time period between the
meeting and filing of the application. If such agreement is reached, the applicant shall
inform the Commission of such agreement in its application.
(d) The Commission encourages settlement of any issues raised in an application
proceeding filed pursuant to this rule. To achieve this goal, the applicant shall meet with
all intervenors within seven days after interventions have been granted.
3976. — 3999. [Reserved].
Attachment B
Docket No. 09R-158EG
Decision No. C09-0234
Page 1 of 3
4971. — 4974. [Reserved].
4975. Applications for financial incentives including ratemaking treatment concerning
projects and programs stemming from the American Recovery and Reinvestment
Act (ARRA).
In order to encourage gas utilities in the state of Colorado to aggressively seek funding for
programs and projects under the ARRA, the Commission shall allow for an expedited review of
applications filed to request financial incentives including ratemaking treatment. At the applicant's
option, it may choose the procedural process outlined in this rule or propose an alternative
procedural schedule. There is no requirement that a utility use this process or obtain prior
approval of a planned ARRA-funded project. The utility may choose to raise cost recovery and
incentives at a later point after ARRA funding has been obtained.
(a) The Commission shall allow for an expedited review process for applications filed for
financial incentives including ratemaking treatment, as follows:
(I)
The Commission shall give priority to applications filed pursuant to this rule and
shall dispose of the application within 45 days after filing unless the Commission,
for good cause shown, enters an order continuing the proceeding and stating
fully the facts necessitating the continuance. The Commission may dispose of a
non -contested application without a hearing, as provided by § 40-6-109(5),
C.R.S.
(II) The intervention and notice period shall run for ten days after the notice is mailed
by the Commission. The Commission shall mail notice of the application within
three business days of the filing of the application. If it intends to participate as a
party, Staff of the Commission is required to file its notice of intervention as of
right within the ten day notice period. Any party requesting a hearing on the
application must clearly state so in its request for intervention and set forth its
reasons that a hearing is necessary.
(III) Response time to all motions to intervene by permission shall be three business
days. All motions to intervene shall be served on the applicant through electronic
mail at the electronic mail address provided in the application.
(IV) Response time to audit and discovery shall be three business days. Discovery
rights and obligations shall begin upon the Commission's grant of a motion to
intervene or the filing of an intervention by right. The Commission may enter an
order limiting the number of discovery and audit questions based on the scope of
the application and the number of interventions.
(V) If a hearing is scheduled, summaries of answer testimony shall be due ten days
prior to the scheduled hearing date.
(VI) Oral legal arguments, expanded answer testimony, rebuttal testimony and
surrebuttal testimony will be allowed at hearing.
(VII) Absent a showing of good cause to the contrary, response time to motions shall
be three business days.
Attachment B
Docket No. 09R-158EG
Decision No. C09-0234
Page 2 of 3
(b) Contents of Application. All applications filed pursuant to this rule 4975 shall include, in
addition to the information required by rule 4002(b), the following information, either
within the application or in attached exhibits:
(I) A description of the program(s) or project(s) for which the application is
requesting a financial incentive. This description shall include a justification for
how the program(s) or project(s) is additive to current requirements or
commitments. If the program(s) or project(s) is not additive, an explanation of
why the request for financial incentives is warranted;
(II) A statement regarding whether the program(s) or project(s) will proceed absent
the Commission's approval of the requested financial incentive;
(III) An estimate of the costs for the program(s) or project(s) and the financial
incentive for which federal funding is sought along with an identification of the
preferred cost -recovery mechanism and timeline the applicant expects to request
in the future;
(IV) A description of how the proposed program(s) or project(s) will meet the goals of
the ARRA and the state of Colorado;
(V) A citation to the applicable section of the ARRA through which federal funds will
be sought;
(VI) An explanation of the process at the federal and state level to request and be
awarded funds, including known milestone dates;
(VII) Justification for expedited treatment from the Commission;
(VIII) Type(s) of financial incentive the applicant is requesting from the Commission;
(IX) Justification as to why the requested financial incentive is necessary, just and
reasonable, and is in the public interest. This shall include, but is not limited to, a
description of the applicant's capital budget for the current year and the next
three years and of the impact the program(s) or project(s) will have on the capital
budget for each of those years;
(X) A plan for accountability and tracking of program(s) or project(s), including
proposed measurement and verification of program goals; how the plan complies
with federal accountability standards; and identification of how the program(s)
and project(s) revenues and costs will be separately identified in the applicant's
books of account;
(XI) Identification of all additional waivers of Commission rules or decisions the
applicant anticipates may be necessary to complete the program(s) or project(s)
if the applicant's request for federal funding is granted;
(XII) Any additional requests to the Commission that the applicant anticipates will be
necessary if the applicant's request for federal funding for the program(s) or
project(s) is accepted; and
Attachment B
Docket No. 09R-158EG
Decision No. C09-0234
Page 3 of 3
(XIII) Identification of all other requests for ARRA funding that the applicant, or its
affiliates, has already made or intends to make. This list shall include requests
made for programs and projects in other states. The list shall also include any
financial incentive awarded by other state commissions associated with the
ARRA funding requests.
(c) The applicant shall meet with Staff of the Commission to explain an anticipated request at
least seven calendar days prior to the filing of an application for approval of financial
incentives. The applicant and Staff may agree to a shorter time period between the
meeting and filing of the application. If such agreement is reached, the applicant shall
inform the Commission of such agreement in its application.
(d) The Commission encourages settlement of any issues raised in an application
proceeding filed pursuant to this rule. To achieve this goal, the applicant shall meet with
all intervenors within seven days after interventions have been granted.
4976. — 4999. [Reserved].
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