On October 28, 2015, the Public Service Commission of the District of Columbia (“DCPSC”) issued an order granting the joint motion of Exelon Corporation (“Exelon”) and Pepco Holdings, Inc. (“Pepco” and together with Exelon, “Joint Applicants”) to reopen the record in the Exelon-Pepco merger proceedings so that it may consider a settlement agreement between the District of Columbia (“DC”) Government and the Joint Applicants, announced on October 8, 2015 (see October 12, 2015 edition of the WER).  With the record reopened, the Joint Applicants now have another opportunity to persuade the DCPSC that the merger proposal – as amended per the terms of the Settlement – serves the public interest, and should be approved.

The initial merger application, filed on June 18, 2004, was denied by the DCPSC in an August 27, 2015 order in which the DCPSC stated that the proposed merger was “not one that is beneficial to [DC] ratepayers or [DC].”  On October 6, 2015, the Joint Applicants filed their motion to reopen the record.  In support of the motion, the Joint Applicants stated that “extraordinary efforts have now yielded a [Settlement] joined by a broad cross-section of the parties to this case.  The terms of the settlement increase Exelon’s proposed investment in DC from $14 million to $78 million.  Additionally, Exelon commits to invest another $17 million in energy efficiency programs, and to purchase 100 megawatts of wind generated power to serve DC load.  On October 8, 2015, Mayor Muriel Bowser issued a press release confirming the DC government’s support for the Settlement.

Opponents of the merger – including DC SUN and DC Public Power – objected to the motion to reopen the record and the related Settlement on procedural grounds.  Particularly, the opponents argued that the motion to reopen was untimely and that consideration of the Settlement requires a new proceeding with full discovery and community input.  DC Public Power argued that because DCPSC has already rendered a final decision, any further consideration would require the Joint Applicants to file a new merger application.

In granting the Joint Applicant’s motion, the DCPSC concluded that the submission of the Settlement was untimely but invoked its discretion to waive its rules for timely submission of record evidence on the basis that the “interest of justice lies in the expeditious resolution of this merger proceeding through the conduct of a fair and transparent proceeding that will determine whether the Settlement . . . is in the public interest.”  The DCPSC stated that the record will be reopened solely to consider whether the Settlement is in the public interest.  Moreover, the DCPSC adopted an expedited procedural schedule that provides an opportunity for limited additional discovery and a community hearing.  The DCPSC’s stated objective is to render a final decision on the merger in less than 150 days, though the timeline for adjudication remains subject to the DCPSC’s discretion.

A copy of the DCPSC order is available here.