2023 Colorado Revised Statutes › Title 40 - UTILITIES (§§ 40-1-101 — 40-43-104) › PUBLIC UTILITIES (§§ 40-1-101 — 40-17.5-105) › GENERAL AND ADMINISTRATIVE (§§ 40-1-101 — 40-9.8-104) › Article 3.2 - AIR QUALITY IMPROVEMENT COSTS (§§ 40-3.2-101 — 40-3.2-210) › Part 1 - GENERAL PROVISIONS (§§ 40-3.2-101 — 40-3.2-110) › Section 40-3.2-102 - Recovery of air quality improvement costs

(1)
A public utility shall be entitled to fully recover from its retail customers the air quality improvement costs that it prudently incurs as a result of a voluntary agreement entered into pursuant to part 12 of article
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of title
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, C.R.S., after July 1, 1998, except as provided in subsection (7) of this section.
(2)
For the purposes of this article, "air quality improvement costs" means the incremental life-cycle costs including capital, operating, maintenance, fuel, and financing costs incurred or to be incurred by a public utility at electric generating facilities located in Colorado. To account for the timing differences between various costs and revenue recovery, life-cycle costs shall be calculated using net present value analysis.
(3)
Upon application by a public utility for cost recovery, the commission shall determine an appropriate method of cost recovery that assures full cost recovery for the public utility. The air quality improvement costs recovered by the public utility shall not cause an average rate impact greater than the equivalent of one and one-half mills per kilowatt hour in any period, nor shall such costs exceed a total of two hundred eleven million dollars calculated using 1998 net present value dollars. The air quality improvement costs for a generating facility shall be recovered over a period of fifteen years or less.
(4)
Any revenues a public utility receives from transferring, selling, banking, or otherwise using allowances established under Title IV of the federal "Clean Air Act" or under any other trading program of regional or national applicability shall be credited to the public utility's customers to offset air quality improvement costs if such revenues are a result of a voluntary agreement entered into under part 12 of article
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of title
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, C.R.S.
(5)
To the extent that a voluntary agreement entered into under part 12 of article
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of title
25
, C.R.S., does not increase the public utility's electric generating capacity, the voluntary agreement shall not be subject to any restrictions that arise from the commission's integrated resources planning rules.
(6)
The commission shall assure that any future industry restructuring does not adversely affect the ability of the public utility to recover its air quality improvement costs. Nothing in this section shall prevent the commission from considering the appropriate value, including market value, of a public utility's generation assets in any future industry restructuring proceeding.
(7)
(a)
If a public utility's wholesale sales are subject to regulation by the federal energy regulatory commission and the public utility sells power on the wholesale market from generating facilities that are subject to a voluntary agreement under part 12 of article
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of title
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, C.R.S., the public utilities commission shall determine whether to assign a portion of the air quality improvement costs to be recovered from the public utility's wholesale customers. The public utilities commission may assign a portion of the air quality improvement costs to the public utility's wholesale customers to the extent that such portion of such cost recovery does not conflict with the public utility's wholesale contracts entered into prior to April 1, 1998.
(b)
If the public utilities commission assigns a portion of the public utility's air quality improvement costs to be recovered from the public utility's wholesale customers, the public utility may apply to the federal energy regulatory commission for recovery, effective on the date of filing, of the portion of costs assigned to the public utility's wholesale customers. The public utilities commission shall permit the public utility to recover the portion of costs assigned to the public utility's wholesale customers from its retail customers pending the federal energy regulatory commission's approval of recovery from the public utility's wholesale customers.
(c)
Notwithstanding paragraph (b) of this subsection (7), if the public utility fails to apply to the federal energy regulatory commission within six months after the public utilities commission's final order assigning a portion of the air quality improvement costs to the public utility's wholesale customers or fails to make a diligent, good faith effort to persuade the federal energy regulatory commission to approve the cost recovery from the public utility's wholesale customers, the public utility shall not be entitled to recover said portion of the costs from its retail customers.
(d)
All revenues that a public utility receives from its wholesale customers for air quality improvement costs shall be credited as an offset to the air quality improvement costs charged to the public utility's retail customers.
L. 98: Entire article added, p. 1050, § 3, effective July 1.