                                                                   Oct 29 2015, 8:31 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Thomas Cmar                                                VECTREN ENERGY
Earthjustice                                               Robert E. Heidorn
Oak Park, Illinois                                         P. Jason Stephenson
Matthew Gerhart                                            Vectren Corporation
Earthjustice                                               Evansville, Indiana
Seattle, Washington                                        Wayne C. Turner
Jennifer A. Washburn                                       Patrick A. Ziepolt
Citizens Action Coalition of Indiana                       Hoover Hull Turner LLP
Indianapolis, Indiana                                      Indianapolis, Indiana
                                                           ATTORNEYS FOR APPELLEE
                                                           INDIANA UTILITY
                                                           REGULATORY COMMISSION
                                                           Gregory Zoeller
                                                           Attorney General of Indiana
                                                           David Lee Steiner
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana

                                                           Beth Krogel Roads
                                                           General Counsel
                                                           Jeremy R. Comeau
                                                           Assistant General Counsel
                                                           Indiana Utility Regulatory
                                                           Commission
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA



Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015                 Page 1 of 34
      Citizens Action Coalition of                               October 29, 2015
      Indiana, Inc., Sierra Club, Inc.,                          Court of Appeals Case No.
      and Valley Watch, Inc.,                                    93A02-1502-EX-110
      Appellants-Intervenors,                                    Appeal from the Indiana Utility
                                                                 Regulatory Commission
              v.                                                 The Honorable Angela Weber,
                                                                 David E. Ziegner, and James
      Southern Indiana Gas and                                   Huston, Commissioners
      Electric Co. d/b/a Vectren                                 The Honorable Jeffery A. Earl,
      Energy Delivery of Indiana, Inc.,                          Administrative Law Judge
                                                                 Administrative Cause No. 44446
      Appellee-Petitioner,

      Indiana Utility Regulatory
      Commission,
      Appellee.




      Bradford, Judge.



                                           Case Summary
[1]   On January 17, 2014, Appellee-Petitioner Southern Indiana Gas and Electric

      Company d/b/a Vectren Energy Delivery of Indiana (“Vectren”), a public

      utility company which provides electricity to southern Indiana residents, filed a

      petition with Appellee the Indiana Utility Regulatory Commission (“the

      Commission” or “IURC”) for approval of projects to modify their current coal-

      powered generating stations so as to meet new EPA standards. The petition

      also requested financial incentives and reimbursement from ratepayers for costs

      associated with the projects. Appellants-Intervenors Citizens Action Coalition

      of Indiana, Inc., (“CAC”) Sierra Club, Inc., and Valley Watch, Inc.

      Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015              Page 2 of 34
      (collectively “Appellants”) intervened in the action and, in addition to the

      Indiana Office of Utility Consumer Counselor1 (“OUCC”), opposed Vectren’s

      petition. Appellants argued that retiring some or all of Vectren’s current coal-

      powered generators and replacing them with new natural gas-powered

      generators was a more cost-effective plan than Vectren’s proposal to install

      emission controls on its current generators. Ultimately, the OUCC ceased its

      opposition to Vectren’s proposal prior to the Commission’s decision.


[2]   The Commission found that Vectren’s proposal was reasonable and necessary,

      approved the proposal, and granted Vectren’s request for reimbursement of

      project costs. On appeal, Appellants argue that the Commission failed to make

      necessary findings on (1) facts material to its determination of the issues and (2)

      statutory factors required to be addressed prior to authorizing the use of clean

      coal technology. In response, Vectren claims that Appellants’ appeal is moot

      and that the Commission made all necessary findings. We find that the

      Commission erred in failing to make findings on the factors listed in Indiana

      Code section 8-1-8.7-3 and, accordingly, we remand with instructions.



                             Facts and Procedural History




      1
        The OUCC is the state agency representing ratepayer interests in cases before state and federal utility
      regulatory commissions. Indiana Office of Utility Consumer Counselor, www.in.gov/oucc/ (last visited
      October 10, 2015).

      Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015                        Page 3 of 34
                                                 i. EPA Action

[3]   Vectren is a public utility company which provides electricity to southern

      Indiana residents. Vectren’s baseload electricity generating units include Brown

      unit 1, Brown unit 2, Culley unit 2, Culley unit 3, and Warrick, all of which are

      coal-powered generators. In 2012, Vectren received a Notice of Violation

      (“NOV”) issued by the EPA alleging that Vectren’s emissions control

      technology at its Brown units was noncompliant with EPA rules governing

      sulfuric acid emissions. The EPA also served Vectren with a Clean Air Act

      (“CAA”) Information Request that highlighted concerns with the sulfur

      emissions at Culley unit 3. Vectren disputed the allegations raised in the NOV.

      At some point after Vectren’s filing of the instant petition and prior to the

      Commission’s ultimate decision, Vectren and the EPA reached a settlement in

      principle to resolve the outstanding allegations raised in the NOV and the

      information request. Vectren is also subject to additional recent federal

      mandates regarding emissions standards, specifically, the Mercury and Air

      Toxics Standards rule (“MATS”) and the Water Pollution Control Act which

      limit mercury emissions in the air and water, respectively.


                                             ii. Vectren’s Petition

[4]   On January 17, 2014, Vectren filed a petition with the Commission for approval

      of modifications to four of its coal-powered electricity generating facilities––

      Brown units 1 and 2, Culley unit 3, and Warrick––in order to comply with the

      MATS rule, the NOV, and the CAA information request.



      Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 4 of 34
           3. Relief requested. Vectren requests approval of clean energy
           projects and issuance of a CPCN [certificate of public
           convenience and necessity] to construct, install, and use CCT
           [clean coal technology] to allow Vectren to comply with the
           United State Environmental Protection Agency (“EPA”)
           Mercury and Air Toxics Standards (“MATS”) rule, the Notice of
           Violation (“NOV”) received for Brown, and a Clean Air Act
           (“CAA”) §114 Information Request received for Culley related to
           a 2003 federal consent decree.

           Specifically, Vectren requests approval to construct, install, and
           operate the following projects on the Brown Units: an organo-
           sulfide injection system to inject an organo-sulfide solution into
           each scrubber at Brown units 1 and 2 to address mercury (“Hg”)
           re-emission…; a soda ash injection system for sulfur trioxide
           (“SO3”) mitigation at Brown units 1 and 2; and a hydrogen
           bromide injection system on Brown unit 2 to aid the conversion
           of elementary mercury to oxidized form (collectively, the “Brown
           Air Projects”).

           Vectren requests approval to construct, install and operate the
           following projects on the Culley Units: an organo-sulfide
           injection system…at the combined scrubber at Culley units 2 and
           3 to address Hg re-emission…; and a hydrated lime injection
           system for SO3 mitigation at Culley unit 3 (collectively, the
           “Culley Air Projects”)….

           Vectren requests approval for recovery of its portion of the costs
           for Alcoa[2] to install an organo-sulfide system at Warrick unit 4
           (“Warrick Project”).

           In addition, Vectren requests approval to construct, install, and
           operate equipment necessary to control wastewater discharges
           from the plants at both Brown and Culley as required to comply




2
    Vectren owns 50% of Warrick unit 4 along with Alcoa Inc., which owns the other 50%.


Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015                 Page 5 of 34
               with National Pollution Discharge Elimination System
               (“NPDES”) Hg limitations. [“Brown Water Project” and “Culley
               Water Project”]…. In this Order, we refer to the Brown and
               Culley Air Projects, the Warrick Project, and the Brown and
               Culley Water Projects, collectively, as the “Mandated
               Projects”.[3]

               Vectren also requests approval of certain financial incentives and
               approval to defer project costs, including depreciation and
               operations and maintenance (“O&M”) expenses related to the
               Mandated Projects (“Mandated Project Costs”), for a period up
               to December 31, 2020, by which time Vectren will propose a
               recovery mechanism for such costs. In the alternative and to the
               extent deferral of the Mandated Projects Costs is not permitted,
               Vectren requests authority to recover the reasonably incurred
               O&M expenses, including consumables, and depreciation
               expenses relating to the Mandated Projects through a rate
               adjustment mechanism. Finally, Vectren requests ongoing
               review for the Mandated Projects and specific accounting
               treatment of under/over recovery of the Mandated Projects
               Costs.


      Appellants’ App. pp. 10-11, Order of the Commission pp. 3-4.


[5]   In April of 2014, CAC, Valley Watch, and Sierra Club intervened in the

      proceedings and opposed Vectren’s proposal.




      3
       Hereafter, we will refer to the Brown and Culley Air Projects and the Warrick Project collectively as the
      “Air Projects.”

      Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015                         Page 6 of 34
                               iii. Evidence Presented to the Commission

[6]   In order to comply with EPA requirements, Vectren could either install

      additional pollution controls on its existing units or replace its existing units

      with new electricity-generating sources (e.g., natural gas, wind, solar, etc.) that

      would be in compliance with the emissions requirements. Vectren hired

      engineering firm Black & Veatch (“B&V”) to compare the total ratepayer cost

      and relative risk of its proposal to modify existing units (as described above)

      versus the cost and risks associated with retiring and replacing the non-

      compliant units. Alcoa engaged the engineering firm Burns & McDonnell for

      the same purpose with regards to the Warrick unit.


[7]   B&V’s report found that the only feasible plans to meet environmental

      regulations were (1) replacing one or more of Vectren’s current units with new

      natural gas-powered facilities and retiring the remaining facilities, or (2)

      upgrading the current coal-powered facilities. B&V evaluated twenty-one

      potential scenarios involving various gas-powered replacement options and a

      range of potential market and environmental scenarios. B&V concluded that of

      the twenty-one scenarios, only one offered a small savings over the Mandated

      Projects proposal. B&V found that the cost savings under this one scenario

      were “marginal” and conditional on a future market scenario with low natural

      gas prices and high carbon prices. Tr. Vol. 4, p. 460. Accordingly, B&V

      concluded that Vectren’s plan to modify the existing facilities was the best

      option in terms of cost to ratepayers.



      Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 7 of 34
[8]   CAC and the OUCC submitted testimony of experts who felt that the 10-year

      period used in B&V’s analysis was too short to capture accurate long term costs

      and risks associated with the proposal and that using a 20-year model would be

      more appropriate. CAC’s expert further maintained that, under a 20-year

      analysis, natural gas-powered generators would be more cost efficient. Vectren

      responded that it did not perform a 20-year analysis because (1) it did not intend

      to keep the coal-powered generators in use for that long, (2) that it would be in

      a better position to determine the best replacement option for those generators

      in ten years, (3) risks that occur later in the 20-year model are less reliable, and

      (4) that replacing the current generators immediately would forfeit the money

      previously invested in those plants for which its customers are currently still

      paying and which would not be fully depreciated for at least nine years (the

      Commission referred to such potential forfeitures as “stranded costs”). After

      reviewing the additional information provided by Vectren, the OUCC ceased its

      opposition of Vectren’s proposal.


                             iv. Commission’s Findings and Conclusions

[9]   The Commission found as follows:


              5. Commission Discussion and Findings
              A. CCT, Clean Energy Projcets, and Federally Mandated
              Compliance Projects. As an initial matter, we must determine:
              (1) whether the Culley Air Projects, Brown Air Projects, and
              Warrick Project constitute CCT under Ind. Code § 8-1-8.8-3 and
              “clean energy projects” under Ind. Code § 8-1-8.8-2 and (2)
              whether all of the Mandated Projects are “federally mandated
              compliance projects” under Ind. Code § 8-1-8.4-2.

      Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 8 of 34
        1. CCT and Clean Energy Projects. Ind. Code § 8-1-8.8-3
        defines CCT as: a technology (including precombustion
        treatment of coal):
        (1) that is used in a new or existing energy production or
        generating facility and directly or indirectly reduces or avoids
        airborne emissions of sulfur, mercury, or nitrogen oxides or other
        regulated air emissions associated with the combustion or use of
        coal; and
        (2) that either:
        (A) was not in general commercial use at the same or greater
        scale in new or existing facilities in the United States at the time
        of enactment of the federal Clean Air Act Amendments of 1990
        (P.L.101-549)1; or
        (B) has been selected by the United States Department of Energy
        for funding or loan guaranty under an Innovative Clean Coal
        Technology or loan guaranty program under the Energy Policy
        Act of 20052, or any successor program, and is finally approved
        for such funding or loan guaranty on or after the date of
        enactment of the federal Clean Air Act Amendments of 1990
        (P.L.101-549).
Appellants’ App. p. 10. Based on undisputed testimony that the Brown and

Culley Air projects, and the Warrick project would all reduce emissions of

pollutants including mercury and sulfur, and that the Mandated Projects were

not in general commercial use as of January 1, 1989, the Commission found

that the Air Projects all constitute CCT as defined in Indiana Code section 8-1-

8.8-3. The Commission also found that all of the Mandated Projects

constituted federally mandated “compliance projects” under Indiana Code

section 8-1-8.4-2 because they are designed to achieve compliance with

federally mandated requirements.



Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015      Page 9 of 34
[10]   In regards to Vectren’s request for financial incentives, the Commission found

       as follows:


               B. Ratemaking and Accounting Treatment. Vectren requests the
               creation of a regulatory asset beginning January 1, 2014, to
               reflect the deferral of the Mandated Projects Costs, including: (1)
               allowance for funds used during construction using the FERC
               Uniform System of Accounts requirements; (2) post-in-service
               carrying costs using vectren’s overall cost of capital approved in
               its last base rate case, Cause No. 43839, on a pretax basis; (3)
               project-related costs including operating, testing, maintenance,
               and depreciation; and (4) property taxes associated with the
               Mandated Projects. Under Ind. Code § 8-1-8.8-11(a), the
               Commission shall encourage clean energy projects through
               financial incentives, if the projects are found to be reasonable and
               necessary.
               Alternitvely, Vectren requests to recover the Mandated Projects
               Costs under Ind. Code ch. 8-1-8.4. Under this proposal, Vectren
               would recover 80% of eligible revenue requirement amounts
               through a Federal Mandated Compliance Adjustment
               (“FMCA”), including financing costs on projects under
               construction, post-in-service construction costs, deferred O&M,
               projected incremental depreciation, and property tax expenses.
               The remaining 20% of the Mandated Projects Costs would be
               deferred for subsequent recovery in a base rate case.
                                                    ****
               Based on the evidence presented, we find that Vectren’s proposal
               to defer the Mandated Project Costs is reasonable. Mr.
               Chapman testified that Vectren proposed this alternative to
               minimize the immediate rate impact on customers. Vectren is
               currently recovering fuel costs that had been previously deferred
               and will continue doing so until 2020. Mr. Chapman said that
               the proposal in this case to defer the Mandated Projects Costs
               until 2020 is timed to allow recovery of the previously deferred


       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 10 of 34
        fuel costs to end before recovery of the deferred Mandated-
        Projects-Related costs….
        Based on the evidence presented, we approve Vectren’s proposal
        to create a regulatory asset to reflect the deferral of the Mandated
        Project Costs….Vectren has not specified the particular method
        or therms [sic] by which it will ultimately recover the deferred
        Mandated Projects Costs in rates; therefore, before beginning
        recovery of the deferred costs, it must file a case setting forth the
        specific recovery mechanism and terms or seek recovery of the
        deferred costs in its next base rates case.
        C. Deferred Recovery under Ind. Code ch. 8-1-8.8. Under Ind.
        Code § 8-1-8.8-11(a)(5), the Commission can authorize other
        financial incentives that it considers appropriate for clean energy
        projects only if the projects are found to be reasonable and
        necessary.
        Vectren submitted evidence showing that failure to comply with
        the federally mandated requirements would require Vectren to
        retire Brown, Culley, and Warrick, which make up
        approximately 85% of its baseload generation, in 2015. The
        Mandated Projects will enable the continued operation of the
        facilities for at least the next ten years and continued service to
        Vectren’s customers.
        Vectren evaluated several alternative compliance technologies
        that would allow the Brown, Culley, and Warrick units to
        comply with pollution limits established in the MATS rule,
        NOV, and NPDES….
        Vectren hired Black & Veatch to further evaluate the most
        promising technologies and consider alternatives for bringing its
        generation fleet in compliance with federal regulations….
        Vectren jointly owns Warrick unit 4 with Alcoa….Alcoa engaged
        Burns & McDonnell to evaluate technologies. Burns &
        McDonnell ranked the technologies in order of cost estimate
        related to capital investment and ongoing O&M. Alcoa selected
        the option with the lowest cost that was able to achieve MATS
        compliance.
Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 11 of 34
        Vectren also considered whether the continued operation of
        Brown units 1 and 2, Culley unit 3, and Warrick unit 4 was the
        best option. Vectren submitted production cost modeling
        supporting its plan to continue investing in, rather than retire,
        Brown, Culley, and Warrick. Specifically, Vectren presented a
        ten-year production cost model using PROMOD IV prepared by
        Black & Veatch. Vectren also engaged Burns & McDonnell to
        conduct an analysis over a 20-year period to respond to concerns
        by the Joint Intervenors and OUCC.
        The evidence presented by Vectren shows that failure to complete
        the Mandated Projects could require the premature retirement of
        the related generation facilities, which would result in significant
        reliability, market, and regulatory risk. MISO is projecting
        capacity shortfalls as early as 2016 and constructing a new gas
        generation facility would take at least four years. Without the
        ability to obtain voltage support from distant generators to serve
        its territory, Vectren would be forced to purchase capacity in an
        already constrained market. All of these factors point to
        concerns that retirement of Brown and Culley would expose
        Vectren’s customers to significant reliability risks. Based on the
        evidence presented, we find that the Mandated Projects are
        reasonable and necessary.
        D. Cost Estimate. Vectren estimated the Mandated Projects
        Costs to be in the range of $75-$95 million. Black & Veatch
        estimated the cost of the EPCM contract using techniques that
        rendered it a Class 2 estimated pursuant to the Association for
        the Advancement of Cost Engineering. A Class 2 Estimate has
        an accuracy of -5% to -15% on the low end and +5% to +20% on
        the high end. No party disputed the estimated costs.
        The evidence presented sufficiently describes the Mandated
        Project Costs and demonstrates that the components of the
        Mandated Projects offer substantial potential to cost-effectively
        reduce pollutants. Based on our review of the evidence, we
        approve Vectren’s cost estimates for the Mandated Projects.
                                             ****

Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 12 of 34
               It is therefore ordered by the Indiana Utility Regulatory
               Commission that:
               1. The Mandated Projects are “clean energy projects” and
                  “clean coal technology” under Ind. Code 8-1-8.8.
               2. The MATS rule, NOV, and NPDES limits are federally
                  mandated requirements as defined by Ind. Code § 8-1-8.4-5.
               3. The Mandated Projects are federally mandated “compliance
                  projects” under Ind. Code § 8-1-8.4-2 and the costs incurred in
                  connection with the “Mandated Projects are “federally
                  mandated costs” under Ind. Code § 8-1-8.4-4.
               4. The cost estimate provided by Vectren in this Cause for the
                  Mandated Projects is approved….
               5. Vectren is authorized to record the deferred Mandated
                  Projects Costs as a regulatory asset until the date of a
                  Commission order authorizing recovery of the deferred
                  Mandated Projects Costs in Petitioner’s recoverable operating
                  expenses.

       Appellants’ App. pp. 19-23.


                                  Discussion and Decision
[11]   On appeal, Appellants argue that the Commission erred by failing to make

       findings of fact on issues which Appellants believe were material to the

       Commission’s ultimate determination; specifically, whether upgrading Culley

       unit 2 is needed in light of future electricity load estimates and whether

       Vectren’s delay in filing its petition was unreasonable. Appellants also argue

       that the Commission was statutorily required to make findings on the specific

       factors listed in Indiana Code section 8-1-8.7-3. Vectren argues that the

       Appellants’ claims are moot because Appellants failed to obtain a stay pending


       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 13 of 34
       appeal and Vectren have since completed and began using many of the

       Mandated Projects.


                                        I. Standard of Review
[12]   “The General Assembly created the Indiana Utility Regulatory Commission

       primarily as a fact-finding body with the technical expertise to administer the

       regulatory scheme devised by the legislature.” N. Ind. Pub. Serv. Co. v. United

       States Steel Corp., 907 N.E.2d 1012, 1015 (Ind. 2009). The Commission’s goal is

       to ensure that public utilities provide constant, reliable, and efficient service to

       the citizens of Indiana. Id. An order from the Commission is presumed valid

       unless the contrary is clearly apparent. Citizens Action Coal. of Ind., Inc. v. N. Ind.

       Pub. Serv. Co., 485 N.E.2d 610, 612 (Ind. 1985).


[13]   The standard for our review of decisions of the Commission is governed by

       Indiana Code section 8-1-3-1:


               An assignment of errors that the decision, ruling, or order of the
               commission is contrary to law shall be sufficient to present both
               the sufficiency of the facts found to sustain the decision, ruling,
               or order, and the sufficiency of the evidence to sustain the finding
               of facts upon which it was rendered.


[14]   The Indiana Supreme Court has interpreted this statute to provide a tiered

       standard of review.

               A multiple-tier standard of review is applicable to the IURC’s
               orders. A court on review must inquire whether specific findings
               exist as to all factual determinations material to the ultimate
               conclusions; whether substantial evidence within the record as a
       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015    Page 14 of 34
               whole supports the findings of fact; and whether the decision,
               ruling, or order is contrary to law.


       Citizens Action Coal. of Ind., Inc. v. Pub. Serv. Co. of Ind., 612 N.E.2d 199, 201 (Ind.

       Ct. App. 1993) (citations omitted). “On matters within its jurisdiction, the

       Commission enjoys wide discretion. The Commission’s findings and decision

       will not be lightly overridden just because we might reach a contrary opinion on

       the same evidence.” NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co., 31 N.E.3d 1,

       5-6 (Ind. Ct. App. 2015).


                                                II. Mootness
[15]   As a threshold issue, Vectren argues that the Appellants’ contentions on appeal

       are moot. “An appeal is moot when it is no longer live and the parties lack a

       legally cognizable interest in the outcome or when no effective relief can be

       rendered to the parties.” Union Twp. Sch. Corp. v. State ex rel. Joyce, 706 N.E.2d

       183, 187 (Ind. Ct. App. 1998) (citing City of Huntingburg v. Phoenix Natural

       Resources, Inc., 625 N.E.2d 472, 474 (Ind. Ct. App. 1993)). Specifically, Vectren

       claims that the projects “have been substantially completed and in use since the

       start of 2015” and that because Appellants did not seek a stay preventing

       Vectren’s use of its new environmental controls, this court is unable to grant

       effective relief without forcing Vectren to shut down its power plants, which

       Vectren claims would run counter to public policy of maintaining reliable

       energy security. Vectren’s Br. p. 17.




       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015    Page 15 of 34
[16]   Vectren attempts to analogize this case to two annexation cases in which this

       court held that unless a trial court’s approval of an annexation is stayed, the

       appellant-remonstrators have no recourse on appeal. Annexation Ordinance F-

       2008-15 v. City of Evansville, 955 N.E.2d 769, 777 (Ind. Ct. App. 2011); Certain

       Martinsville Annexation Territory Landowners v. City of Martinsville, 18 N.E.3d

       1030, 1034 (Ind. Ct. App. 2014) trans. denied. As we explained in those cases,

       the Indiana legislature has provided “the exclusive means to

       disannex…municipal boundaries in Indiana Code sections 36-4-3-16 through

       36-4-3-20,” and that, under those sections, Indiana courts are only permitted to

       order disannexation under one circumstance: when the municipality has failed

       to implement planned services according to statute. Annexation Ordinance F-

       2008-15, 955 N.E.2d at 777-78. Accordingly, barring the single statutory

       exception, our courts cannot grant effective relief to appellants who do not seek

       a stay of annexation because we lack the authority to do so.


[17]   Appellants analogize this case to Columbus Board of Zoning Appeals v. Wetherald,

       which dealt with Wetherald’s petition for zoning variances. 605 N.E.2d 208

       (Ind. Ct. App. 1992). Wetherald was the owner of a lot on which he planned to

       construct a drive-through restaurant. Id. at 209. In 1991, Wetherald applied for

       developmental variances with the Columbus Board of Zoning Appeals (“BZA”)

       in order to qualify for a building permit to make improvements to his lot

       necessary for his restaurant. Id. at 210. The BZA denied the application and

       Wetherhald appealed to the trial court which reversed the BZA and granted the

       variances. The BZA appealed but failed to obtain a stay pending appeal and,

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 16 of 34
       while the appeal was pending, Wetherhald obtained a building permit based on

       the trial court’s ruling, constructed the restaurant, and opened for business. Id.

       On appeal, this court found as follows:

               Here, contrary to Wetherald’s contention, the appeal is not moot.
               If relief were granted to the BZA reversing the trial court’s grant
               of the Variances, then the BZA’s decision denying the Variances
               would be reinstated. Wetherald would then be required to bring
               the Restaurant into compliance with the regular developmental
               standards, including removing structures already completed. We
               cannot sanction Wetherald’s construction pending appeal as
               creating mootness; otherwise, those seeking variances for
               construction purposes could circumvent zoning requirements by
               simply constructing in accordance with permits issued, although
               final resolution of the propriety of such variances was still
               pending on appeal. Wetherald proceeded to build at his own peril
               prior to a final resolution of the variance issues.


       Id.


[18]   The facts of the instant case are more akin to the Wetherhald. As in Wetherhald,

       Vectren began work on the Mandated Projects while the appeal was pending at

       its own risk. If we adopt Vectren’s logic on this issue, then many appellants

       would be required to request a stay of judgment in order to preserve their right

       to appeal. The purpose of a stay is to preserve the status quo while an appeal is

       pending, it is not intended to be a prerequisite to an appeal. Flynn v. Sandahl, 58

       F.3d 283, 287 (7th Cir. 1995). Vectren cannot singlehandedly prevent

       Appellants’ ability to pursue an appeal by building the environmental controls

       at issue while the appeal is pending and then claim that the appeal is moot

       because they have already built those controls.
       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 17 of 34
[19]   Furthermore, it is within this court’s power to grant the relief sought by

       Appellants; that is, remand with instructions that the Commission make

       additional findings. “In the event a stay is not sought, the prevailing party is

       free to take advantage of the district court’s judgment. And as long as the

       prevailing party’s actions pending the appeal do not render it impossible to

       fashion some form of relief to the appellant, then there remains a case or

       controversy within the scope of Article III.” Id. With the forgoing in mind, we

       find that Appellants’ claims are not moot.


        III. Overview of the Relevant Indiana Utility and Clean
                       Coal Technology Statutes
[20]   Vectren petitioned the Commission for a CPCN approving of the Mandated

       Projects under Indiana Code chapters 8-1-8.4 (“Chapter 8.4”) and 8-1-8.7

       (“Chapter 8.7”). Vectren also applied for financial incentives under Indiana

       Code chapter 8-1-8.8 (“Chapter 8.8”) and, alternatively, to recover federally

       mandated costs under Indiana Code section 8-1-8.4-7.


                                          A. Indiana Code Chapter 8.7

[21]   Indiana Code section 8-1-8.7-3 provides as follows:

               (a) Except as provided in subsection (c), a public utility may not
               use clean coal technology at a new or existing electric generating
               facility without first applying for and obtaining from the
               commission a certificate that states that public convenience and
               necessity will be served by the use of clean coal technology.
               (b) The commission shall issue a certificate of public convenience
               and necessity under subsection (a) if the commission finds that a

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 18 of 34
               clean coal technology project offers substantial potential of
               reducing sulfur or nitrogen based pollutants in a more efficient
               manner than conventional technologies in general use as of
               January 1, 1989….
       When determining whether to grant a certificate under this section, the

       commission shall make findings on nine factors: (1) the costs of constructing,

       implementing, and using the CCT project compared to the costs of

       conventional emission reduction facilities, (2) whether a CCT project will

       extend the useful life of an existing electric generating facility and the value of

       that extension, (3) the potential reduction of sulfur and nitrogen based

       pollutants achieved by the proposal, (4) the reduction of pollutants that can be

       achieved by conventional pollution control equipment, (5) federal sulfur and

       nitrogen emission standards, (6) the likelihood of success of the project, (7) the

       cost and feasibility of the retirement of an existing electric generating facility,

       (8) the dispatching priority for the facility utilizing CCT, and (9) any other

       factors the commission considers relevant, including whether the construction,

       implementation, and use of clean coal technology is in the public’s interest.

       Ind. Code § 8-1-8.7-3(b).


[22]   Indiana Code section 8-1-8.7-4 provides that


               (a) As a condition for receiving the certificate required under
               [Section 8-1-8.7-3], an applicant must file an estimate of the cost
               of constructing, implementing, and using clean coal technology
               and supportive technical information in as much detail as the
               commission requires.




       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 19 of 34
               (b) The commission shall hold a public hearing on each
               application. A certificate shall be granted only if the commission
               has:
                   (1) made a finding that the public convenience and necessity
                   will be served by the construction, implementation, and use
                   of clean coal technology;
                   (2) approved the estimated costs;
                   (3) made a finding that the facility where the clean coal
                   technology is employed:
                        (A) utilizes and will continue to utilize Indiana coal
                        as its primary fuel source; or
                        (B) is justified, because of economic considerations or
                        governmental requirements, in utilizing non-Indiana
                        coal;
                   (4) made a finding on each of the factors described in section 3(b) of
                   this chapter, including the dispatching priority of the facility
                   to the utility.
       (emphasis added).


                                          B. Indiana Code Chapter 8.4

[23]   Indiana Code section 8-1-8.4-6 provides, in relevant part, as follows:

               (a) Except as provided in subsection (c), or unless an energy
               utility has elected to file for:
               (1) a certificate of public convenience and necessity; or
               (2) the recovery of costs;
               under another statute, an energy utility that seeks to recover
               federally mandated costs under section 7(c) of this chapter must
               obtain from the commission a certificate that states that public
               convenience and necessity will be served by a compliance project
               proposed by the energy utility.



       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015            Page 20 of 34
               (b) The commission shall issue a certificate of public convenience
               and necessity under section 7(b) of this chapter if the commission
               finds that the proposed compliance project will allow the energy
               utility to comply directly or indirectly with one (1) or more
               federally mandated requirements.

       In determining whether to grant a certificate under Section 8-1-8.4-6, the

       Commission must examine several statutory factors, including the federally

       mandated requirements sought to be complied with, project costs, how the

       proposed projects will meet federal requirements, “alternative plans that

       demonstrate that the proposed compliance project is reasonable and necessary,”

       whether the project will extend the useful life of an existing energy facility and

       the value of such extension, and any other factors the Commission considers

       relevant. Ind. Code § 8-1-8.4-6(b).


[24]   Indiana Code section 8-1-8.4-7 provides that


               (b) The commission shall hold a properly noticed public hearing
               on each application and grant a certificate only if the commission
               has:
               (1) made a finding that the public convenience and necessity will
               be served by the proposed compliance project;
               (2) approved the projected federally mandated costs associated
               with the proposed compliance project; and
               (3) made a finding on each of the factors set forth in section 6(b)
               of this chapter.

               (c) If the commission approves under subsection (b) a proposed
               compliance project and the projected federally mandated costs
               associated with the proposed compliance project, the following
               apply:
               (1) Eighty percent (80%) of the approved federally mandated
               costs shall be recovered by the energy utility through a periodic

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 21 of 34
               retail rate adjustment mechanism that allows the timely recovery
               of the approved federally mandated costs….
               (2) Twenty percent (20%) of the approved federally mandated
               costs, including depreciation, allowance for funds used during
               construction, and post in service carrying costs, based on the
               overall cost of capital most recently approved by the commission,
               shall be deferred and recovered by the energy utility as part of the
               next general rate case filed by the energy utility with the
               commission.
               (3) Actual costs that exceed the projected federally mandated
               costs of the approved compliance project by more than twenty-
               five percent (25%) shall require specific justification by the energy
               utility and specific approval by the commission before being
               authorized in the next general rate case filed by the energy utility
               with the commission.

                                        C. Indiana Code Chapter 8.8

[25]   Indiana Code section 8-1-8.8-11(a) provides that “[t]he commission shall

       encourage clean energy projects by creating…financial incentives for clean

       energy projects, if the projects are found to be reasonable and necessary,”

       including “recovery of costs and expenses incurred during construction and

       operation of [CCT] projects….”


                IV. Whether the Commission Complied with
               Requirements of Indiana Code Section 8-1-8.7-3
[26]   According to Indiana Code section 8-1-8.7-3, “a public utility may not use clean

       coal technology…without first applying for and obtaining from the commission

       a certificate that states that public convenience and necessity will be served by

       the use of clean coal technology.” In order to grant a CPCN under Section 8-1-

       8.7-3, the Commission must make findings on nine factors listed in the Section

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 22 of 34
       8-1-8.7-3(b). Appellants claim that the Commission erred by failing to make

       findings on those factors. Appellees do not dispute that the Commission did

       not make specific findings on the statutory factors, however, Appellees claim

       that the Commission based its decision only on Chapters 8.4 and 8.8, and so

       was not subject to the requirements of Chapter 8.7, as the Appellants claim.


[27]   We first note that basing its decision off of Chapter 8.8 would not relieve the

       Commission or Vectren of the requirements of Chapter 8.7. Indiana Code

       section 8-1-8.8-11(b) provides as follows:

               An eligible business must file an application to the commission
               for approval of a clean energy project under this section. This
               chapter does not relieve an eligible business of the duty to obtain any
               certificate required under…IC 8-1-8.7. An eligible business seeking a
               certificate under…IC 8-1-8.7 and this chapter for one (1) project
               may file a single application for all necessary certificates. If a
               single application is filed, the commission shall consider all
               necessary certificates at the same time.


       (Emphasis added). Therefore, a finding that the projects were reasonable and

       necessary under Chapter 8.8 does not change the fact that Vectren was required

       to obtain a CPCN before using new CCT and that the Commission was

       required to make findings under Chapter 8.7 before granting a CPCN

       thereunder. Accordingly, the questions we address here are (1) whether

       Vectren’s projects qualified as CCT sufficient to require a CPCN under Chapter

       8.7, and (2) if so, whether the Commission effectively issued a CPCN to

       Vectren.



       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015     Page 23 of 34
                               A. Defining Clean Coal Technology
[28]   Appellees argue that Chapter 8.7 applies to CCT that reduces only “airborne

       emissions of sulfur or nitrogen based pollutants” and so does not apply to their

       projects, which are designed to reduce sulfur, nitrogen, and mercury. Ind. Code

       § 8-1-8.7-1. Appellants cite to a previous decision by the Commission for

       support of this interpretation of the statute. The Commission found that

       “[c]lean coal technology under Ind. Code § 8-1-8.7-1 is limited technology that

       reduces only sulfur or nitrogen based pollutants.” In re Indpls. Power & Light Co.,

       307 P.U.R.4th 311 (Ind. U.R.C. Aug. 14, 2013). For their part, Appellants

       argue that because Vectren’s proposal distinguishes which emission controls

       address sulfur and which address mercury, Vectren was required to obtain a

       CPCN under Chapter 8.7 for those controls addressing sulfur emissions.


[29]   The Commission found that “the Brown and Culley Air Projects and Warrick

       Project all constitute CCT as defined by Ind. Code § 8-1-8.8-3.” Appellants’

       App. p. 17. Section 8-1-8.8-3 defines CCT as “a technology…that…reduces

       airborne emissions of sulfur, mercury, or nitrogen oxides or other regulated air

       emissions associated with the combustion of coal….” (emphasis added). This

       definition applies only to Chapter 8.8. The definition of CCT in Section 8-1-




       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 24 of 34
       8.7-1 applies only to technologies which reduce emissions of sulfur or nitrogen

       based pollutants. This definition applies only to Chapter 8.7.4


[30]   As outlined in Vectren’s proposal, the organo-sulfide and hydrogen bromide

       injection systems are designed to mitigate mercury emissions, while the soda

       ash and hydrated lime injection systems address only sulfur emissions. As

       such, the latter undoubtedly falls under Chapter 8.7’s definition of CCT.5

       Therefore, Vectren requires a CPCN to use the two injection systems designed

       to mitigate sulfur emissions. However, the systems concerning mercury

       emissions are not considered CCT projects for purposes of Chapter 8.7 because

       they do not “reduce airborne emissions of sulfur or nitrogen based pollutants.”

       Ind. Code § 8-1-8.7-1. As such, those mercury mitigation systems do not

       require a CPCN issued under Chapter 8.7 as a prerequisite to their use.


                                      B. CPCN Under Chapter 8.4
[31]   Vectren argues that even if a CPCN is required in order to use its CCT projects

       under Chapter 8.7, Chapter 8.7 does not require that the CPCN approving of

       the CCT project be granted under that section specifically. “[A] public utility




       4
         The definition of CCT used in Chapter 8.7 was adopted in 1989 while the definition used in Chapter 8.8
       was enacted along with several 2002 amendments to the Indiana utilities code. It is unclear why the
       legislature would draw a distinction between the definitions of CCT in these two chapters, however, the
       definitions apply only to their respective chapters so there is no conflict which would necessitate a statutory
       interpretation by this court.
       5
         We note that this finding is consistent with Vectren’s own position below. Vectren’s petition sought
       “approval of clean coal technology” pursuant to Sections 8-1-8.7-1 et seq., 8-1-8.4-1 et seq., and 8-1-8.8-1 et seq.
       In other words, it appears that, despite the position Vectren has taken on appeal, Vectren believed that at
       least some of its projects qualified as CCT under Chapter 8.7.

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015                             Page 25 of 34
       may not use clean coal technology at a new or existing electric generating

       facility without first applying for and obtaining from the commission a

       certificate that states that public convenience and necessity will be served by the

       use of clean coal technology.” Ind. Code § 8-1-8.7-3. Specifically, Vectren

       claims that a CPCN granted under the following provision in Chapter 8.4

       would be sufficient to satisfy the CPCN requirement of Chapter 8.7: “[A]n

       energy utility that seeks to recover federally mandated costs under section 7(c)

       of this chapter must obtain from the commission a certificate that states that

       public convenience and necessity will be served by a compliance project

       proposed by the energy utility.” Ind. Code § 8-1-8.4-6.


[32]   Chapters 8.4 and 8.7 have different requirements in order to issue CPCNs

       thereunder. Section 8-1-8.7-3(b) provides that

               When determining whether to grant a certificate under this
               section, the commission shall examine the following factors:
               (1) The costs for constructing, implementing, and using clean
               coal technology compared to the costs for conventional emission
               reduction facilities.
               (2) Whether a clean coal technology project will also extend the
               useful life of an existing electric generating facility and the value
               of that extension.
               (3) The potential reduction of sulfur and nitrogen based
               pollutants achieved by the proposed clean coal technology
               system.
               (4) The reduction of sulfur nitrogen based pollutants that can be
               achieved by conventional pollution control equipment.
               (5) Federal sulfur and nitrogen based pollutant emission
               standards.

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 26 of 34
               (6) The likelihood of success of the proposed project.
               (7) The cost and feasibility of the retirement of an existing electric
               generating facility.
               (8) The dispatching priority for the facility utilizing clean coal
               technology, considering direct fuel costs, revenues and expenses
               of the utility, and environmental factors associated with
               byproducts resulting from the utilization of the clean coal
               technology.
                (9) Any other factors the commission considers relevant,
               including whether the construction, implementation, and use of
               clean coal technology is in the public’s interest.


[33]   Section 8-1-8.4-6(b) provides as follows:


               The commission shall issue a certificate of public convenience
               and necessity under section 7(b) of this chapter if the commission
               finds that the proposed compliance project will allow the energy
               utility to comply directly or indirectly with one (1) or more
               federally mandated requirements.


       In determining whether to grant a certificate under Indiana Code section 8-1-

       8.4-6, the Commission must make findings on several statutory factors,

       including the federally mandated requirements sought to be complied with,

       project costs, how the proposed projects will meet federal requirements,

       “alternative plans that demonstrate that the proposed compliance project is

       reasonable and necessary,” whether the project will extend the useful life of an

       existing energy facility and the value of such extension, and any other factors

       the Commission considers relevant. Ind. Code §§ 8-1-8.4-6(b), 8-1-8.4-7.




       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 27 of 34
[34]   We conclude that a CPCN granted under Chapter 8.4 would not be sufficient to

       satisfy the CPCN requirement of Chapter 8.7. First, the two Chapters serve

       different purposes: Chapter 8.4 requires the issuance of a CPCN in order to

       recover costs of a federally-mandated compliance project, whereas Chapter 8.7

       requires the issuance of a CPCN to approve of a CCT project. These two

       chapters have different factor analyses, and presumably, these factors are

       appropriate to their respective purposes. Additionally, Section 8-1-8.4-6(a)

       states that an energy utility is not required to obtain a CPCN under Section 8-1-

       8.4-6 if it obtains a CPCN under another statute, whereas Chapter 8.7 contains

       no such provision.


[35]   Furthermore, as Vectren notes in its brief, a certificate of public convenience

       and necessity “is not an independent document; it is simply a phrase that may

       appear in a Commission order…. The Commission was not required to use

       those ‘magic words’ in its ordering language to provide such relief.” Vectren’s

       Br. p. 21 fn. 13 (citing Jennings Water, Inc. v. Office of Envtl. Adjudication, 909

       N.E.2d 1020, 1024 (Ind. Ct. App. 2009) (“This Court has held in many

       different contexts that no “magic words” are required so long as there is enough

       evidence to support the judgment or conclusion.”)). This logic reflects the

       importance of conducting the proper analysis over simply saying the ‘magic

       words.’ As such, even if the Commission did issue a CPCN under Chapter 8.4,

       those ‘magic words’ do not work to circumvent the analysis required by

       Chapter 8.7.




       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015     Page 28 of 34
[36]   Even if we assume Vectren’s interpretation of the statutes is correct, and a

       CPCN issued solely under Chapter 8.4 is sufficient to satisfy the requirements

       of Chapter 8.7, the Commission did not issue a CPCN under Chapter 8.4.

       Vectren argues that the Commission “could have issued (and effectively did

       issue) a [CPCN] under Chapter 8.4.” Vectren’s Br. p. 21. However, the

       Commission itself acknowledges in its brief that it did not issue a CPCN.


               Under Ind. Code § 8-1-8.4-6(a), a CPCN is required “unless an
               energy utility has elected to file for…the recovery of costs under
               another statute.” In this proceeding, the recovery of costs and
               financial incentives were approved by the Commission under
               another statute, specifically Ind. Code § 8-1-8.8-11(a), in the form
               of the creation of a regulatory asset to reflect the deferral of the
               costs of the Mandated Projects. Because the cost recovery
               approved was under another statute (i.e., other than Chapter 8.4),
               the issuance of a CPCN by the Commission was not statutorily
               required by Chapter 8.4.


       Commission’s Br. pp. 8-9.


[37]   Vectren may not use CCT (as defined in Chapter 8.7) until the Commission

       issues them a CPCN under Indiana Code section 8-1-8.7-3. On remand, the

       Commission shall make findings on the factors listed in Section 8-1-8.7-3(b)

       regarding the soda ash and hydrated lime injection systems which qualify as

       CCT under Chapter 8.7 and, based on those findings, determine whether those

       systems serve public convenience and necessity.




       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 29 of 34
           C. Whether the Commission’s Failure to Make Findings
           Under Indiana Code Section 8-1-8.7-3 was Harmless or de
                               miminis Error
[38]   Vectren argues that even if the Commission did err in failing to consider the

       Indiana Code section 8-1-8.7-3 factors, that error is either de minimis or harmless

       because the Commission would have reached the same result and issued a

       CPCN under Chapter 8.7 if it had made the appropriate findings on the Section

       8-1-8.7-3(b) factors. Vectren’s argument is attractive at first blush. The

       Commission heard evidence concerning most of the issues which the 8-1-8.7-

       3(b) factors address. Unfortunately, the Commission was required to make

       findings on specific factors and grant or deny a CPCN based on those findings,

       neither of which it did.


[39]   In some cases, we have found that “a trial court’s exclusion of [statutory]

       factors from its written findings does not mean that it did not consider them,”

       Shumaker v. Shumaker, 559 N.E.2d 315, 318 (Ind. Ct. App. 1990), and that any

       such error by an exclusion of factors may be harmless when the trial court

       otherwise satisfies the requirements of the statute. Helm v. Helm, 873 N.E.2d

       83, 90 (Ind. Ct. App. 2007). Here however, the Commission did not mention

       Chapter 8.7 in its order and maintains on appeal that Chapter 8.7 does not

       apply and that it “did not make any Chapter 8.7 findings.” Commission’s Br. p.

       9. As we have already found, Chapter 8.7 does apply to certain projects within

       Vectren’s proposal. Accordingly, it was not harmless error for the Commission

       to ignore the statutory factors outlined in Section 8-1-8.7-3(b).


       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 30 of 34
          V. Whether the Commission Erred in Failing to Make
           Findings Regarding the Necessity of Culley Unit 2
[40]   Appellants claim that “The Commission made no finding that Culley Unit 2, or

       any other unit, is necessary for meeting the electricity needs of Vectren’s

       customers.” Appellants’ Br. p. 20. Appellants allege that, based on load

       forecasts, Culley unit 2 will not be needed to meet consumer electricity demand

       and so it is not reasonable and necessary for purposes of the clean energy

       statutes. Consequently, Appellants argue that whether Culley unit 2 was

       necessary considering load forecasts was material to the Commission’s ultimate

       conclusion and that the Commission erred in failing to make findings on this

       issue. We find Appellants argument on this issue unconvincing for two

       reasons.


[41]   First, the Commission specifically addressed the issue of electricity demand

       when it found that retiring the Brown or Culley facilities prematurely would

       result in reliability risks for consumers based on capacity shortfall projections.

               Vectren also considered whether the continued operation of
               Brown units 1 and 2, Culley unit 3, and Warrick unit 4 was the
               best option. Vectren submitted production cost modeling
               supporting its plan to continue investing in, rather than retire,
               Brown, Culley, and Warrick….
               The evidence presented by Vectren shows that failure to complete
               the Mandated Projects could require the premature retirement of
               the related generation facilities, which would result in significant
               reliability, market, and regulatory risk. MISO is projecting
               capacity shortfalls as early as 2016 and constructing a new gas
               generation facility would take at least four years. Without the

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 31 of 34
               ability to obtain voltage support from distant generators to serve
               its territory, Vectren would be forced to purchase capacity in an
               already constrained market. All of these factors point to
               concerns that retirement of Brown and Culley would expose
               Vectren’s customers to significant reliability risks. Based on the
               evidence presented, we find that the Mandated Projects are
               reasonable and necessary.
       Appellant’s App. p. 21.


[42]   Furthermore, Vectren did not request the approval of any project tied only to

       Culley unit 2 because it was not a non-compliant unit and so was not at issue in

       these proceedings. As the Commission noted in its order, “Culley unit 2 was

       not evaluated because Vectren was not seeking relief for work done on that unit

       and it was not part of Vectren’s settlement with the EPA.” Appellant’s App. p.

       16. The only portion of the Culley Air project which would affect Culley 2 is

       the organo-sulfide injection system which would be installed at the “combined

       scrubber” which serves both Culley units 2 and 3. Appellants’ App. p. 10

       (emphasis added). In other words, the emissions control being added by the

       project will improve an existing emissions control which currently serves both

       Culley units. The project is designed to bring Culley unit 3 into compliance and

       would have only an ancillary effect on Culley unit 2. Therefore, the

       Commission did not fail to make necessary findings on this issue.


         VI. Whether the Commission Erred in Failing to Make
          Findings on Vectren’s Delay in Filing its Application
[43]   Appellants claim that Vectren unreasonably delayed in filing its application for

       the Mandated Projects and that that delay resulted in the reliability risks which

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 32 of 34
       Vectren has used to justify its proposal. Appellants further argue that the trial

       court erred in failing to make findings on this issue. This argument is without

       merit. Appellants claim, without any supporting evidence, that Vectren’s delay

       was unreasonable because “Vectren could have filed its application in 2012 or

       at the latest in 2013, when the MATS and NPDES obligations were known to

       the utility, and when the utility was aware of EPA’s notice of sulfur trioxide

       emission violations.” Appellants’ Br. p. 21.


[44]   The only information in the record which Appellants cite to support Appellants’

       contention of unreasonable delay is the testimony of Vectren Vice President

       Angila Retherford which shows that Vectren received the initial NOV regarding

       the Brown facility in November of 2011. However, Retherford went on to

       testify that Vectren disputed the allegations raised in the NOV and that it was

       not until August of 2013 that EPA inspectors visited the Brown and Culley

       facilities to gather visible emissions readings. The EPA’s inspections revealed

       opacity at both plants over permitted limits resulting from sulfur trioxide

       emissions and requested that Vectren address the issue.


[45]   Apparently, Appellants argument is that the time between Vectren’s being put

       on notice of its noncompliance and Vectren’s filing of the instant petition is

       inherently unreasonable. Vectren filed the instant petition in January of 2014.

       In the time after receipt of the NOV and before filing the petition, Vectren was

       negotiating a settlement with the EPA and engaging consultants to determine

       the best method of compliance. Appellants cite no evidence to support their

       argument that Vectren’s disputing the NOVs was done with the intent to reduce

       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 33 of 34
       the feasibility of alternative compliance options. Therefore, we find that the

       Commission did not err in failing make findings on this issue as it does not

       appear from the record that it was material to the Commission’s ultimate

       conclusions.



                                               Conclusions
[46]   We find that (1) the Appellants’ claims are not moot, (2) the Commission did

       not err in failing to consider the necessity of Culley unit 2 or the reasonableness

       of Vectren’s delay in filing its petition, and (3) regarding the soda ash and

       hydrated lime injection systems, the Commission erred by failing to make

       findings on the statutory factors listed in Indiana Code section 8-1-8.7-3 and by

       failing to grant or deny Vectren’s request for a CPCN thereunder. Accordingly,

       we remand the case to the Commission with instructions that the Commission

       make the required findings under Chapter 8.7.


[47]   Remanded with instructions.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 93A02-1502-EX-110 |October 29, 2015   Page 34 of 34
