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BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO

PROCEEDING No. 17A-0797E

IN THE MATTER OF THE APPLICATION OF PUBLIC SERVICE COMPANY OF


COLORADO TO MODIFY THE DEPRECIATION SCHEDULES FOR THE EARLY
RETIREMENT OF COMANCHE 1 AND COMANCHE 2 GENERATING UNITS,
ESTABLISH A REGULATORY ASSET TO COLLECT INCREMENTAL
DEPRECIATION, REDUCE THE RENEWABLE ENERGY STANDARD
ADJUSTMENT COLLECTION TO ONE PERCENT, AND IMPLEMENT A GENERAL
RATE SCHEDULE ADJUSTMENT, CONTINGENT ON THE APPROVAL OF THE
COLORADO ENERGY PLAN PORTFOLIO IN PROCEEDING NO. 16A-0396E

WESTERN RESOURCE ADVOCATES’ MOTION TO STRIKE


AND REQUEST FOR SHORTENED RESPONSE TIME
Colorado PUC E-Filings System

Western Resource Advocates (“WRA”), by and through its undersigned counsel,

Erin A. Overturf, hereby files this Motion to Strike portions of the Cross-Answer and

Rebuttal Testimony submitted by Charles Griffey on behalf of the Coalition of

Ratepayers (“Coalition”), in accordance with Rule 1400 of the Colorado Public Utilities

Commission (“Commission”) Rules of Practice and Procedure, 4 C.C.R. 723-1. Mr.

Griffey’s testimony is beyond the scope of this proceeding, and responds to information

not in the record.

STATEMENT REGARDING CONFERRAL

In accordance with Rule 1400(a), 4 C.C.R. 723-1,1 undersigned counsel conferred

with all parties to Proceeding No. 17A-0797E about the contents of this Motion via

email. WRA is authorized to state Public Service Company of Colorado (“Public

1 All rule citations are to the Commission’s Rules of Practice and Procedure, 4 C.C.R. 723-1.

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Service” or “the Company”) and the Sierra Club support the Motion. The Coalition of

Ratepayers (“Coalition”), Intermountain Rural Electric Association, and Holy Cross

Electric Association oppose both the Motion and the request for shortened response

time. No other party took a position on the Motion following a conferral email from

undersigned counsel.

REQUEST FOR SHORTENED RESPONSE TIME

In order to resolve this matter in advance of the hearing scheduled for August 1,

2018, WRA requests response time to this Motion be shortened to seven days.

BACKGROUND

1. This proceeding is limited in scope. Public Service filed its Application on

November 8, 2017, seeking the following relief:

a. Modification of the depreciation schedules for Comanche 1 and 2;2

b. Creation of a regulatory asset to collect the incremental depreciation

from the early retirement of Comanche 1 and 2;3

c. Authorization to reduce the Renewable Energy Standard Adjustment

collections to 1%;4

d. Authorization to create a new cost recovery mechanism to recover

funds necessary to extinguish the regulatory asset;5 and

2 McKoane Direct Testimony, at 4.


3 Id.
4 Id.

5 Initially, the Company proposed to collect this revenue through an adjustment to the

General Rate Schedule Adjustment. Id. at 4:1-3. However, in its rebuttal case, the
Company changed its proposal, and now requests to collect this revenue through a separate
bill rider, referred to as the Colorado Energy Plan Adjustment. See Trowbridge Rebuttal
Testimony, at 16.

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e. Approval to earn the Company’s weighted average cost of capital on

the regulatory asset.6

2. The Application at issue in this proceeding concerns “these discrete

components of the cost recovery and regulatory accounting treatment related to the

Colorado Energy Plan Portfolio.”7 As stated in the captioned title of this proceeding,

the relief requested by the Company is contingent on the approval of the Colorado

Energy Plan Portfolio (“CEPP”) in Proceeding No. 16A-0396E.8 But it is critical to note

the Company is not seeking approval of the Colorado Energy Plan Portfolio in this

proceeding. Rather, the Commission and parties are evaluating the CEPP in the

Company’s ongoing Electric Resource Plan proceeding, 16A-0396E.

3. All pre-filed written testimony has been submitted. The Commission is

scheduled to convene its evidentiary hearing in this matter on August 1, 2018.

LEGAL STANDARD

4. Rule 1501(a) provides that “to the extent practical, the Commission shall

conform to the Colorado Rules of Evidence.” As the Commission has noted, “burdening

the record with evidence that is not admissible under general evidentiary rules is often

unproductive, creates confusion, and increases the possibility that a decision will be

based on inherently unreliable evidence.”9 The Commission regularly excludes

evidence from the record if it is inadmissible under general evidentiary rules.10

6 McKoane Direct Testimony, at 5:4-5.


7 Application, at ¶ 4.
8 See Application.

9 Proceeding No. 02C-082T, Decision No. R03-0207-I, at ¶ 4.

10 See id.; see also Consolidated Proceeding No. 09A-324E, Decision No. C11-0288.

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5. “Relevant evidence” is that which has the “tendency to make any fact that

is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.”11 Evidence that is not relevant is inadmissible.12

However, not all relevant evidence need be admitted. Relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of … confusion

of the issues … or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”13

6. As relevant here, there are two grounds for a motion to strike pre-filed

written testimony. First, testimony may be struck if it is outside the scope of the

proceeding.14 “The Commission has held that neither due process nor the right to

intervene includes the ability or the right to litigate issues that are outside the scope of

the proceeding.”15 The Commission has recognized that resolving questions about the

scope of a particular proceeding early in the process serves the aims of judicial

efficiency by “conserve[ing] the resources of the Commission and the Parties.”16

7. Second, the scope of proper answer, cross-answer, or rebuttal testimony is

limited to responding to testimony presented in the prior round of testimony. The

11 C.R.E. Rule 401.


12 C.R.E. Rule 402.
13 C.R.E. Rule 403.

14 See Proceeding No. 06S-235EG, Decision No. C06-1235; Proceeding No. 11A-325E,

Decision No. R11-1010-I.


15 Proceeding No. 11V-594T, Decision No. R11-1125-I, at ¶ 11, citing Proceeding No. 09V-

676T, Decision No. C10-0315, at ¶ 28.


16 Id. at ¶ 43.

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Commission may therefore strike answer, cross-answer, or rebuttal testimony that is

not responsive to the preceding round of testimony.17

MOTION

8. On behalf of the Coalition, Mr. Griffey presents substantial amounts of

improper testimony that should be stricken.

9. First, Mr. Griffey presents testimony in opposition to the retirement of

Comanche Units 1 and 2. The Company is not seeking approval for the early

retirement of those units in this proceeding. Rather, the Commission is evaluating the

early retirement of the Comanche Units in Proceeding No. 16A-0396E. WRA believes

this testimony is irrelevant, in that it will not assist the Commission in resolving the

“discrete components of the cost recovery and regulatory accounting treatment” at issue

in this proceeding.18 However, even if the Commission determines this testimony is

“relevant” under the standard of C.R.E. Rule 401 it should nonetheless be excluded

under C.R.E. Rule 403 because its inclusion confuses the issues in this proceeding and

has the potential to waste hearing time with lengthy cross-examination on issues

outside the scope of the relief sought. The Coalition presented substantial testimony

and argument in Proceeding No. 16A-0396E opposing the early retirement of the

Comanche Units and will have further opportunity to address this issue in its

comments on the 120-Day Report, which are due July 23, 2018. Because the retirement

17 See Proceeding No. 11A-226E, Decision No. R11-1250-I, at ¶ 80 (finding certain cross-
answer testimony “must be stricken because the testimony does not respond to an assertion
or fact contained in the answer testimony…”); Proceeding No. 10AL-963G, Decision No.
R11-0653, at ¶ 11.
18 Application, at ¶ 4.

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dates for the Comanche Units are not at issue in this proceeding, the following portions

of Mr. Griffey’s testimony should be stricken:

 Griffey Answer Testimony, at 29:16-32:4;19

 Griffey Cross-Answer Testimony, at 14:4-15:9, 17:1-19:9, 22:10-23,


29:14-23, and corresponding sections of the Executive Summary; and

 Exhibit CSG-CA-1

10. Second, Mr. Griffey’s testimony responds to the 120-Day Report filed in

Proceeding No. 16A-0396E. The 120-Day Report is not a part of the record in this

proceeding. WRA believes this testimony is irrelevant, in that it will not assist the

Commission in resolving the “discrete components of the cost recovery and regulatory

accounting treatment” at issue in this proceeding.20 However, even if the Commission

determines this testimony is “relevant” under the standard of C.R.E. Rule 401 it should

nonetheless be excluded under C.R.E. Rule 403 because its inclusion confuses the issues

in this proceeding and has the potential to waste hearing time with lengthy cross-

examination on issues outside the scope of the relief sought. The appropriate forum for

parties to address the contents of the 120-Day Report is through the Phase II comment

process already underway in Proceeding No. 16A-0396E. Because the 120-Day Report

is beyond the scope of this proceeding, the following portions of Mr. Griffey’s testimony

should be stricken:

 Griffey Cross-Answer Testimony, at 10:5-14:4, 19:10-29:2, 29:4-30:7,


and corresponding sections of the Executive Summary;

 Exhibit CSG-CA-2;

19 Pin citations are presented as “page:line(s).”


20 Application, at ¶ 4.

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 Griffey Surrebuttal Testimony, at 8:2-8, 8:16-18, 9:1-17:14,21 17:15-
32:7, 35:18-37:20, and corresponding sections of the Executive
Summary; and

 Exhibits CSG-SR-1 and CSG-SR-2.

11. Importantly, WRA believes granting the relief requested in this Motion

will not substantially prejudice the Coalition. The testimony that is the subject of this

Motion to Strike is all more properly presented in Proceeding No. 16A-0396E, where

the Comanche Unit retirement and the Company’s 120-Day Report are at issue. The

Coalition is a party to Proceeding No. 16A-0396E and will have an opportunity to

present all of its arguments in its comments to the 120-Day Report in that proceeding,

which are due July 23, 2018. Granting this Motion will ensure the hearing in this

matter is efficient and focused on the matters actually at issue in this proceeding.

REQUEST FOR RELEIF

12. For the foregoing reasons, WRA recommends the Commission strike the

portions of the Coalition’s testimony identified in the three Attachments to this Motion,

as well as Exhibits CSG-CA-1, CSG-CA-2, CSG-SR-1, and CSG-SR-2. WRA further

requests response time to this Motion be shortened to seven days.

21Mr. Griffey, in his Surrebuttal Testimony, implies his discussion of the TCJA is
responsive to Decision No. C18-0141-I in this proceeding and therefore proper in scope.
WRA believes this is incorrect. In Decision No. C18-0141-I the Commission specifically
stated it was interested in TCJA impacts only insofar as they impact costs associated with
the AD/RR proposals. In that decision, following a discussion of accelerated depreciation
costs, the Commission stated “Public Service must explain whether or not the Tax Cuts and
Job Act (TCJA) could effect these calculations and what effect that might have on these
[accelerated depreciation] costs.” Decision No. C18-0141-I, at ¶ 25. Thus, the relevance of
the TCJA to this proceeding is limited to only how it may impact costs directly arising from
the AD/RR proposals, not the CEPP more broadly. Mr. Griffey’s attempts to critique the
Company’s evaluation of TCJA in its entirety are far beyond the scope of this proceeding.

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Dated this 16th day of July 2018.

Respectfully submitted,

WESTERN RESOURCE ADVOCATES

/s/ Erin A. Overturf


Erin A. Overturf, # 40187
Chief Energy Counsel
Western Resource Advocates
2260 Baseline Rd. Suite 200
Boulder CO 80302
720-763-3724
303-786-8054 (fax)
erin.overturf@westernresources.org