COMMITMENTS AND CONTINGENCIES | COMMITMENTS AND CONTINGENCIES SALES: We have a resource-contingent power sales contract with Salt River Project Agricultural Improvement and Power District of 100 megawatts through August 31, 2036. COAL PURCHASE REQUIREMENTS: We are committed to purchase coal for our generating plants under contracts that expire between 2024 and 2041. These contracts require us to purchase a minimum quantity of coal at prices subject to escalation reflecting cost increases incurred by the suppliers due to market conditions. The coal purchase projection includes estimated future prices. As of December 31, 2022, the minimum coal to be purchased under these contracts is as follows (dollars in thousands): 2023 $ 30,627 2024 23,217 2025 10,113 2026 6,882 2027 6,825 Thereafter 88,247 $ 165,911 Our coal purchases were $124.0 million in 2022, $97.9 million in 2021, and $101.2 million in 2020. ELECTRIC POWER PURCHASE AGREEMENTS: Our largest long‑term electric power purchase contracts are with Basin and Western Area Power Administration (“WAPA”). We purchase from Basin power pursuant to two contracts: one relating to all the power which we require to serve our Utility Members’ load in the Eastern Interconnection and one relating to fixed scheduled quantities of electric power in the Western Interconnection. Both contracts with Basin continue through December 31, 2050 and are subject to automatic extension thereafter. We purchase renewable power under long-term contracts, including hydroelectric power from WAPA and from specified renewable generating facilities, including wind, solar and small hydro. We purchase from WAPA power pursuant to two contracts relating to WAPA’s Loveland Area Projects (one which terminates September 30, 2024 and one which commences delivery on October 1, 2024 and terminates September 30, 2054) and three contracts relating to WAPA’s Salt Lake City Area Integrated Projects (two which terminate September 30, 2024 and one which commences delivery on October 1, 2024 and terminates September 30, 2057). As of December 31, 2022, we have entered into renewable power purchase contracts to purchase the entire output from specified renewable facilities totaling approximately 1,521 MWs, including 674 MWs of wind‑based power purchase agreements and 820 MWs of solar‑based power purchase agreements that expire between 2030 and 2042. Costs under the above electric power purchase agreements were as follows (dollars in thousands): 2022 2021 2020 Basin $ 148,146 $ 146,532 $ 152,461 WAPA 67,791 70,107 72,491 Renewables, other than WAPA 85,601 71,565 69,255 ENVIRONMENTAL: As with most electric utilities, we are subject to extensive federal, state and local environmental requirements that regulate, among other things, air emissions, water discharges and the use and management of hazardous and solid wastes. Compliance with these requirements requires significant expenditures for the installation, maintenance and operation of pollution control equipment, monitoring systems and other equipment or facilities. Our operations are subject to environmental laws and regulations that are complex, change frequently and have historically become more stringent and numerous over time. Federal, state, and local standards and procedures that regulate environmental impact of our operations are subject to change. Consequently, there is no assurance that environmental regulations applicable to our facilities will not become materially more stringent, or that we will always be able to obtain all required operating permits. More stringent standards may require us to modify the design or operation of existing facilities or purchase emission allowances. An inability to comply with environmental standards could result in reduced operating levels or the complete shutdown of our facilities that are not in compliance, including the shutting down of additional generating facilities or the shutting down of individual coal-fired generating facilities earlier than scheduled. The cost impact of the implementation of regulation on existing legislation and future legislation or regulation will depend upon the specific requirements thereof and cannot be determined at this time, but it could have a significant effect on our financial condition, results of operations and cash flow. From time to time, we are alleged to be in violation or in default under orders, statutes, rules, regulations, permits or compliance plans relating to the environment. Additionally, we may need to deal with notices of violation, enforcement proceedings or challenges to construction or operating permits. In addition, we may be involved in legal proceedings arising in the ordinary course of business. However, we believe our facilities are currently in compliance with such regulatory and operating permit requirements. LEGAL: FERC Tariff and Declaratory Order. Because of increased pressure by states to regulate our rates and charges with impact in other states setting up untenable conflict, we sought consistent federal jurisdiction by FERC. This was accomplished with the addition of non-cooperative members in 2019, specifically MIECO, Inc., as a Non-Utility Member on September 3, 2019. On the same date, we became FERC jurisdictional for our Utility Member rates, transmission service, and our market-based rates. We filed our tariff for wholesale electric service and transmission at FERC in December 2019. In addition, on December 23, 2019, we filed our Petition for Declaratory Order ("Jurisdictional PDO") with FERC, EL20-16-000, asking FERC to confirm our jurisdiction under the Federal Power Act ("FPA") and that FERC’s jurisdiction preempts the jurisdiction of the Colorado Public Utilities Commission ("COPUC") to address any rate related issues, including the complaints filed by United Power and La Plata Electric Association ("LPEA") with the COPUC. On March 20, 2020, FERC issued orders regarding our Jurisdictional PDO and our tariff filings. FERC’s orders generally accepted our tariff filings and recognized that we became FERC jurisdictional on September 3, 2019, but did not make the tariffs retroactive to September 3, 2019. However, FERC specifically provided that no refunds are due on our Utility Member rates and our transmission service rates prior to March 26, 2020. FERC also did not determine that our Utility Member rates and transmission service rates were just and reasonable and ordered FPA section 206 proceedings to determine the justness and reasonableness of our rates and wholesale electric service contracts. On August 2, 2021, FERC approved our settlement agreement related to our Utility Member stated rate, as further discussed belo w. On March 7, 2022, FERC approved our settlement agreement related to our transmission service rates. On August 28, 2020, FERC issued an order (“August 28 Order”) on rehearing related to our Jurisdictional PDO which modified its March 20, 2020 decision on our Jurisdictional PDO by finding exclusive jurisdiction over our contract termination payments related to our Utility Members and preempting the jurisdiction of the COPUC as of September 3, 2019. On December 16, 2020, United Power filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit Court of Appeals") related to FERC’s August 28 Order, 20-1256. On September 16, 2022, the D.C. Circuit Court of Appeals denied United Power's petition related to FERC’s August 28 Order and affirmed FERC's exclusive jurisdiction over our contract termination payments. Petitions for review related to our tariff filings, including our Utility Member rates, have been filed with the D.C. Circuit Court of Appeals by other parties. On December 29, 2022, an order was issued by the court to hold all the cases before the D.C. Circuit Court of Appeals in abeyance, directing the parties to file motions to govern future proceedings by March 29, 2023. On August 2, 2021, FERC approved our settlement agreement related to our Utility Member stated rate, including our wholesale electric service contracts and certain of our Board policies filed with FERC. With the exception of four reserved issues contingent on United Power being a settling party, the settlement resolved all issues set for hearing and settlement procedures related to our Utility Member rates. The settlement provides for us to implement a two-stage, graduated reduction in the charges making up our Class A rate schedule of two percent starting from March 1, 2021 until the first anniversary and four percent reduction (additional two percent reduction from then current rates) thereafter until the date a new Class A wholesale rate schedule is approved by FERC and goes into effect. The settlement rates will remain in effect at least through May 31, 2023 and during such time period, we and the settlement parties have agreed, with limited exceptions, to a moratorium on any filings related to our Class A rate schedule, including any rate increases to our Class A rate schedule. We have also agreed to file a new Class A rate schedule after May 31, 2023 and prior to September 1, 2023. During the moratorium, we established a rate design committee to oversee the development of the new rate. Three of the reserved issues are related to the transmission component of our rates and the fourth relates to our community solar program. Additionally, with the exception of one reserved issue regarding transmission demand charges applicable to certain electric storage resources, each of the reserved issues will have prospective effect only, with the intent that any FERC rulings would be implemented in future rate filings. A hearing on the four reserved issues occurred in March 2022 before an administrative law judge at FERC and an initial decision was issued by an administrative law judge on May 26, 2022. On the three reserved issues that will have a prospective effect only, the initial decision provides that we must also unbundle in our bills to our Utility Members our transmission costs, including ancillary services and other costs, and, in our future rate filings, we must directly assign to our Utility Members the costs of radial facilities that do not meet FERC's standards for being included in our rolled-in transmission demand rate. In addition, the initial decision provided that our Board policy for our community solar program was unduly discriminatory because it advantaged small Utility Members to the disadvantage of larger Utility Members. With regard to the reserved issue regarding transmission demand charges applicable to certain electric storage resources, the initial decision agreed with our Board policy of billing Utility Members for the transmission demand costs that includes all of a Utility Member's transmission demand, including such Utility Member's electric storage resource. On June 26, 2022, we, United Power, and certain other Utility Members filed exceptions to the initial decision. Because exceptions were taken to the initial decision, the initial decision and exceptions are now pending before the Commissioners of FERC for a decision on the four reserved issues. It is not possible to predict the outcome of the four reserved issues related to our member rates docket. In addition, we cannot predict the outcome of any petitions for review filed with the D.C. Circuit Court of Appeals. LPEA and United Power COPUC Complaints . Pursuant to our Bylaws, a Utility Member may only withdraw from membership in us upon compliance with such equitable terms and conditions as our Board may prescribe provided, however, that no Utility Member shall be permitted to withdraw until it has met all its contractual obligations to us, including all obligations under its wholesale electric service contract with us. On November 5, 2019, LPEA filed a formal complaint with the COPUC alleging that we hindered LPEA’s ability to seek withdrawal from us. On November 6, 2019, United Power filed a formal complaint with the COPUC, alleging that we hindered United Power’s ability to explore its power supply options by either withdrawing from us or continuing as a Utility Member under a partial requirements contract. On November 20, 2019, the COPUC consolidated the two proceedings into one, 19F-0621E. On October 22, 2020, the COPUC determined that COPUC’s jurisdiction over United Power and LPEA’s complaints was preempted by FERC and dismissed both complaints without prejudice. On January 27, 2021, United Power filed a Writ for Certiorari or Judicial Review, an appeal, in the Denver County District Court, 2021CV30325, of the COPUC's decision to dismiss United Power's complaint. On February 17, 2021, the Denver County District Court granted our unopposed motion to intervene as a defendant in United Power’s appeal of the COPUC’s dismissal. On November 3, 2022, United Power filed a motion to dismiss the appeal with prejudice that was granted by the court on November 23, 2022. United Power's Adams District Court Complaint. On May 4, 2020, United Power filed a Complaint for Declaratory Judgement and Damages in the Adams County District Court, 2020CV30649, against us and our three Non-Utility Members. On July 2, 2021, the court granted United Power's motion to amend its May 2020 complaint to amend its claims as to our three Non-Utility Members and to add a claim that our addition of the Non-Utility Members violated Colorado law. On July 30, 2021, we filed a partial motion to dismiss a majority of United Power's claims. On July 30, 2021, the three Non-Utility Members filed a joint motion to dismiss all claims by United Power against the Non-Utility Members. On March 23, 2022, the court issued an order regarding our and the Non-Utility Members’ motions to dismiss. The court dismissed some of the claims against us and the Non-Utility Members, including the civil conspiracy claim. After the dismissal, the remaining claims include seeking declaratory orders that the addition of the Non-Utility Members violated Colorado law, the April 2019 Bylaws amendment that allows our Board to establish one or more classes of membership in addition to the then existing all-requirements class of membership is void, and the April 2020 Board approvals related to the methodology to calculate a contract termination payment and buy-down payment formula do not apply to United Power and are void, and that we have breached our Bylaws and our wholesale electric service contract with United Power. On April 6, 2022, we and each Non-Utility Member filed their respective answers to the first amended complaint denying that United Power is entitled to any relief and requesting the court enter judgment of dismissal. We are also requesting declaratory judgements that the April 2019 Bylaws amendment and the April 2020 Board approvals related to the methodology to calculate a contract termination payment and buy-down payment formula are valid. On April 27, 2022, United Power filed a reply asserting that we are not entitled to any relief on our requests for declaratory judgement. A jury trial is scheduled for June 2023. In United Power's February 2023 expert report, United Power asserts that its damages are in the range of $483 million to $533 million, plus interest after the date of the expert report. It is not possible to predict the outcome of this matter, whether we will incur any liability in connection with this matter, and in the event of liability, if any, the amount of damages that could be awarded. FERC - Market Based Rate Authority. On December 27, 2021, we submitted to FERC our triennial market power update for the Southwest and Northwest regions in support of our continued authority to sell energy, capacity, and ancillary services at market-based rates in both the Southwest and Northwest regions. Our filing reflected that we pass the supplier indicative screens in the Public Service Company of Colorado (“PSCO”), Public Service Company of New Mexico (“PNM”), and the WACM balancing authority areas and the wholesale market share screens in the PSCO and PNM balancing authority areas, but fail the wholesale market share indicative screen in the WACM balancing authority area in all seasons. Due to such failure, on February 28, 2022, FERC instituted a FPA section 206 proceeding to determine whether our market-based rate authority in the WACM balancing authority area remains just and reasonable and established a refund effective date of March 7, 2022 for market-based sales after such date. FERC issued a show cause order as to why FERC should not revoke our market-based rate authority in the WACM balancing authority area. On April 29, 2022, we filed a response to the show cause order . FERC issued a decision on September 22, 2022 that revoked our market-based rate authorization in the WACM balancing authority area. Such revocation means that we cannot sell power in the WACM balancing authority area to non-members at bilaterally negotiated “market-based” rates. The FERC order instead required us to file, within 30 days of the order, a tariff for cost-based rates applicable to non-member sales in the WACM balancing authority area that would otherwise have been made under our market-based rate tariff. The order further required us to refund any revenue from power sales in the WACM balancing authority area to non-members on or after March 7, 2022 in excess of the cost-based rates, and submit a refund report within 30 days of the order. On October 7, 2022, FERC granted our motion to extend the deadline until December 21, 2022 to make the above referenced filings. As required by FERC, in December 2022, we distributed refunds with applicable interest of $2.7 million. On December 14, 2022, we also filed a cost-based rate tariff with FERC for our sales in the WACM balancing authority area, and such cost-based rate tariff was used to calculate the amount refunded. On February 27, 2023, FERC accepted our cost-based rate tariff. Energy Sales - Soft-Cap. In August 2020, we made certain energy sales to third parties in excess of the soft-cap price for short-term, spot market sales of $1,000 per megawatt hour established by the Western Electricity Coordinating Council. On October 7, 2020, we filed a report with FERC justifying the sales above the soft-cap and we did not recognize the revenue for the energy sales in excess of the soft-cap, EL21-65-000. Based upon additional guidance from FERC, we filed a supplemental report on July 19, 2021. On May 20, 2022, FERC issued an order directing us to refund only certain amounts of the energy sales revenue in excess of the soft-cap. Based upon the FERC order, in the second quarter of 2022, we recognized approximately $2.9 million in excess of the soft-cap and refunded $0.4 million to a third party. On July 22, 2022, the California Public Utilities Commission filed a petition for review with the DC Circuit Court of Appeals of FERC’s May 20, 2022 order, 22-1169. On August 18, 2022, we filed a motion to intervene with the DC Circuit Court of Appeals and an order granting said motion was issued on September 6, 2022. On January 24, 2023, the parties to the proceeding filed a motion with the court to consolidate this proceeding with other related proceedings with the DC Circuit Court of Appeals and proposed a procedural schedule with final briefings due in October 2023. On March 6, 2023, the DC Circuit Court of Appeals granted the motion to consolidate the proceedings. It is not possible to predict the outcome of this matter or whether we will be required to refund any additional amounts to third parties. |