20101118PAC to XRG 1-15.pdf

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ZØIO NOV f 7 AM 10= l 4
201 Souh Main, Suite 2300
Salt Lake City, Utah 84111
September 27,2010
Peter J. Richardson
Gregory M. Adams
Richardson & O'Lear, PLLC
515 N. 27th Street
P.O. Box 7218
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
petertßrlchardsonandolear.com
gregtßrichardsonandolear.com
RE: ID PAC-E-IO-08
XRG Data Request (1-15)
Please find enclosed Rocky Mountan Power's responses to XRG Data Requests 1-15. Provided
on the enclosed CD are Attchments XRG 1 and 5.
If you have any questions, please feel free to call me at [phone].
Sincerely,
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J. Ted Weston
Manager, Regulation
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PAC-E-1O-08/Rocky Mountain Power
September 27, 2010
XRG Data Request 1
Please identify and provide all docum,ents (including correspondence, internally
or externally distributed), and all studies regarding XRG's request for PURPA
PPAs and interconnection with Rocky Mountain Power's system in Idaho for the
XRG QF projects referenced in the Complaint in this case. Please organize
documents chronologically.
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XRG Data Request 1
Response to XRG Data Request 1
Rocky Mountain Power objects toXRG's Data Request 1 to the extent that it calls
for all documents and studies on the grounds that it is unduly burdensome, overly
broad, and may seek irrelevant and or privileged information. Notwithstanding
and without waiving the foregoing objections, Rocky Mountain Power responds
as follows.
Please refer to Attachment XRG 1.
Recordholder:
Sponsor:
Bruce Griswold
To Be Determined
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PAC-E-IO-08/Rocky Mountain Power
September 27, 2010
XRG Data Request 2
XRG Data Request 2
Reference Answer, 1 9. Please explain why Rocky Mountain Power delivered a
PP A for only one of the XRG projects? Did Rocky Mountain Power receive
requests for PPAs for all four XRG projects?
Response to XRG Data Request 2
Rocky Mountain Power objects to XRG's Data Request 2 to the extent that it
seeks an expert opinion, a legal opinion, or legal argument and to the extent it
calls for Rocky Mountain Power to statea'n opinion not previously written.
See IPUC Rule 225. Notwithstanding and without waiving the foregoing
objections, Rocky Mountain Power responds as follows.
Yes, Rocky Mountain Power did recèive requests from XRG for four PP As for
the XRG projects.
Rocky Mountain Power previously explained why it prepared only one PP A, in an
e-mail from Bruce Griswold to James Carkulis dated October 2,2009, and in a
letter from PacifiCorp's legal counsel, Kenneth Kaufmann, to XRG's attorney,
Peter Richardson, on April 13,2010. Please refer to Exhibits A-19 and A-25 to
Rocky Mountain Power's First PrQ,d~ctiori Request to the XRG LLCs, attached as
par of Attachment XRG 1. ' . .', "
Furhermore, even if there were no issues with any of the four PP As requested,
PacifiCorp initially would have sent XRG a single PPA, and then prepared
individual PP As at the end of the negotiation, after all terms and conditions had
been fully negotiated.
Recordholder:
Sponsor:
Bruce Griswoid
To Be Determine(l
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PAC-E-I0-08/Rocky Mountain Power
September 27, 2010
XRG Data Request 3
XRG Data Request 3
Reference the email communication by Bruce Griswold to XRG dated Oct. 2,
2009, regarding the XRG projects. Does Rocky Mountain Power admit that it
denied XRG PPAs for three ofthefout XRG projects. If yes, please explain
Rocky Mountain Power's legal basis'for dQing so.
Response to XRG Data Request 3
Rocky Mountain Power objects to XRG's Data Request 3 to the extent it seeks an
expert opinion, a legal opinion, or legal argument and to the extent that it calls for
Rocky Mountain Power to state an opinion not previously written.
See IPUC Rule 225. Notwithstanding'and without waiving the foregoing
objections, Rocky Mountain Power responds as follows.
No, Rocky Mountain Power does not admit that Bruce Griswold's email of
October 2, 2009 denied XRG PPAs for three of the four XRG projects.
Recordholder:
Sponsor:
Bruce Griswold
To Be Determined
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PAC-E-I0-08/Rocky Mountain Power
September 27, 20 I 0
XRG Data Request 4
XRG Data Request 4
Did Rocky Mountain Power informXRG on November 1,2009, that transmission
may be available for all four XRG projects if the projects came online on or after
June 2011? If so, please identify and provide supporting documents establishing
when Rocky Mountain Power first became aware of this possibility of additional
transmission capacity.
Response to XRG Data Request 4
No, Rocky Mountain Power didnotinforn XRG on November 1,2009, that
transmission may be available for alltour XRG projects if the projects came
online on or after June 2011.
Recordholder:
Sponsor:
Bruce Griswold
To Be Determined
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PAC-E-I0-08/Rocky Mountain Power
September 27,2010
XRG Data Request 5
XRG Data Request 5
Reference Answer, 1 8. Please proviçle supporting documents or studies
establishing that transmission capacity for no more than 23 MW of net output was
available at the time period from January 2009 to March 20 i O. Please provide
supporting documents or studies establishing that transmission capacity for no
more than 23 MW would be available at all proposed online dates discussed by
XRG, including June 2011.
Response to XRG Data Request 5
Rocky Mountain Power objects to XRG's Data Request 5 to the extent that it calls
for all documents and studies on the grounds that it is unduly burdensome, overly
broad, and may seek irrelevant and or privileged information. Notwithstanding
and without waiving the foregoing objections, Rocky Mountain Power responds
as follows.
Please refer to Attachment XRG 1, which includes emails from Jim Portouw to
Bruce Griswold dated Januar 29, 2009 and Attachment XRG 5, a letter from
Rocky Mountain Power to XRG dated September 21,2010.
Recordholder:
Sponsor:
Bruce Griswoln' ~,l .1.
To Be Determined(',
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PAC-E-10-08/Rocky Mountain Power
September 27, 2010
XRG Data Request 6
XRG Data Request 6
Does it appear at this date that transmission capacity wil exist for over 23 MW at
the proposed point of interconnection for the XRG projects at any point prior to
the end of 20 II? If so, please identify and provide supporting documents
establishing when Rocky Mountain Power first became aware of this possibility
of additional transmission capacity.
Response to XRG Data Request 6
Rocky Mountain Power objects to xRG's Data Request 6 to the extent that it calls
for all documents and studies on the grounds that it is unduly burdensome, overly
broad, and may seek irrelevant and or privileged information. Rocky Mountain
Power objects to XRG's Data Request 6 to the extent that it seeks an expert
opinion, a legal opinion, or legal argument and to the extent it calls for Rocky
Mountain Power to state an opinion not previously written. See IPUC Rule 225.
Notwithstanding and without waiving the foregoing objections, Rocky Mountain
Power responds as follows.
Yes. It now appears that transmission capacity exists suffcient to accommodate
70 MW of capacity from XRG's foUr proposed projects delivering net output to
Rocky Mountain Power's Brady Substation in Idaho.
Rocky Mountain Power became awarê; of adcljtional transmission capacity across
Path C on July 15, 2010-the datePacifiCorp Transmission Services declared a
new Point of DeliverylPoint of Receipt called "Path C". On September 14, 2010,
Rocky Mountain Power first recognized that the July 15,2010 change eliminated
all identified bariers to acceptingall70 MW output from the XRG projects at
Brady Substation. On September21¡2010, Rocky Mountain Power notified XRG
that it is able to purchase output fropj allf~ur proposed XRG projects at the Brady
Substation Point of Delivery at the published avoided cost rates in effect on the,1'1 " , idate the paries execute PPAs for suchprojects. Please refer to Attachment XRG
5 for a copy of the September 21, 201a letter.
Recordholder:
Sponsor:
Bruce Griswold
To Be Determined
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PAC-E- 1 0-08/Rocky Mountain Power
September 27,2010
XRG Data Request 7
XRG Data Request 7
Reference Anser, 1 11. Please explain whether Rocky Mountain Power lacked
any project-specific information regarding the XRG projects, necessary to
complete standard PURP A PPAs prior to March 16, 20 1 O. Please identify any
missing project-specific information, and organize the missing information by
project. Please identify and provide any communication by Rocky Mountain
Power to XRG informing XRG that Rocky Mountain Power required more
information. If no such communicat~on exists, please state so.
Response to XRG Data Request 7
Rocky Mountain Power objects to XRG's Data Request 7 to the extent that it calls
for all documents and studies on the grounds that it is unduly burdensome, overly
broad, and may seek irrelevant and or privileged information. Rocky Mountain
Power objects to XRG's Data Request 7 to the extent that it seeks an expert
opinion, a legal opinion, or legal argl,tnent and to the extent it calls for Rocky
Mountain Power to state an opinion nöt prèviously written. See IPUC Rule 225.
Notwithstanding and without waiving the foregoing objections, Rocky Mountain
Power responds as follows.
Rocky Mountain Power sent XRG a draft PPA and asked for comments more than
16 months ago on May 11,2009. XRG did not respond with comments,
revisions, or additional information regarding the draft PP A. Rocky Mountain
Power reiterated its request for comwents on the draft PPA on October 2, 2009.
Again, XRG did not respond. 'f, :.; ..;1 .
Necessar next steps in negotiating1the, dtaft PPA are the responsibilty ofXRG.
XRG needs to verify that the informdtìon provided by it in Januar 2009 is stil
correct (as Rocky Mountain Powerrequestedin October 2009 and April 13,
2010). XRG needs to tell Rocky Mountain Power if any of the terms of the PP A
are not acceptable and propose alternative language, if any. XRG also needs to
make choices in the draft PP A, such as electing what form of delay default
security it wil provide and whether it wil provide financial information in aid of
Rocky Mountain Power's creditworthiness review. Until XRG provides such
information, Rocky Mountain Power canot determine what project-specific
information is missing, what infonpation\ia ,incorrect, or what additional
information may stil be required. '" '" .\,.
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However, Rocky Mountain Power is presently aware of a number of patent flaws
and omissions in XRG's application materials, which Rocky Mountain Power
described in attchments to its September 21, 2010 letter (provided as Attachment
XRG 5).
Recordholder:
Sponsor:
Bruce Griswold' , :
To Be Determineq
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PAC-E- i 0-08/Rocky Mountain Power
September 27,2010
XRG Data Request 8
XRG Data Request 8
Reference Answer, 1 i O. Please identify any terms and conditions in the draft
PP A provided to XRG that needed to be negotiated. Other than the statements in
the disclaimer clause, why could XRG nohely on the terms and conditions in the
draft PP A as being the Commission-authorized terms applicable to all four XRG
projects? Why could XRG not at least rely on the rate structure in the draft PPA
as being applicable to all four XRG 'projects when XRG requested PP As well in
advance of any likely change in published avoided cost rates?
Response to XRG Data Request 8
Rocky Mountain Power objects to XRG's Data Request 8 to the extent that it
seeks an expert opinion, a legal opinion, or legal argument and to the extent it
calls for Rocky Mountain Power to state an opinion not previously written.
See IPUC Rule 225. Notwithstanding and without waiving the foregoing
objections, Rocky Mountain Powerresponds as follows.
All terms of an Idaho small QF powerpurchase agreement may be negotiated
with the consent of the QF and the utility.' A QF may insist on certain terms, such
as pricing, which are prescribed by Commission order. However, in such cases,
the QF does not perfect its rights to those terms prior to the time it establishes a
legally enforceable obligation with the utilty. Rocky Mountain Power's
obligation to enter into a PP A with XRG is contingent, among other things, upon
XRG providing, and Rocky Mountain:Pqwer reviewing, information required for
reasonable due dilgence. 'J,
Because XRG did not provide comrr~hts' on the PPA provided, nor provide
information to Rocky Mountain Pow~r necessar for due dilgence, the parties
could not meaningfully negotiate executable PP As and XRG could not rely on the
rates provided in the draft PP A. In sum, a QF perfects its rights to a rate structure
at the time it establishes a legally enforceable obligation with the utility, not at the
time it requests PP As or provides all necessary project information.
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Recordholder:
Sponsor:
Bruce Griswold
To Be Determined
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PAC-E- 1 0-08/Rocky Mountain Power
September 27,2010
XRG Data Request 9
XRG Data Request 9
Reference Answer, FIRST AFFIRMÀTIVE DEFENSE. Please explain how XRG
could execute PPAs when Rocky Mountain Power did not provide XRG's
requested PP As. Please identify and¡proyide the communication from Rocky
Mountain Power informing XRG that the one PP A provided for one of the four
XRG projects should be used for the remaining XRG projects.
Response to XRG Data Request 9
Rocky Mountain Power objects toXRu'sData Request 9 to the extent that it
seeks an expert opinion, a legal opinion, or legal argument and to the extent it
calls for Rocky Mountain Power to státe an opinion not previously written.
See IPUC Rule 225. Notwithstandir1gand without waiving the foregoing
objections, Rocky Mountain Power responds as follows.
XRG could not execute PPAs because XRG did not negotiate PPAs to completion
with Rocky Mountain Power prior to the March 15,2010 rate change.
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Rocky Mountain Power did not explain to XRG in writing that the one draft PPA
provided by Rocky Mountain Power on May 11,2009, should be used for the
remaining XRG projects. XRGdecl~red;ìn a July 6, 2009 e-mail, and again in a
March 11, 2010 e-mail to Bruce GTiS~019 that it would take the draft PP A
provided by Rocky Mountain Poweirpti May 11, 2009 and replicate it to create
PPAs for its other three projects. Ph~¡ie refer to Exhibits A-17 and A-23 to
Rocky Mountain Power's First Prodûctiòn 'Request to the XRG LLCs, attached as
part of Attachment XRG 1. XRG also declared on March 11, 2010, that it would
present Rocky Mountain Power with redline markups of these four draft PP As for
Rocky Mountain Power's review and approvaL. XRG has never presented the
drafts to Rocky Mountain Power.
Recordholder:
Sponsor:
Bruce Griswold. .'
To Be Determined"¡
PAC-E-I0-08/Rocky Mountain Power
September 27,2010
XRG Data Request 10
XRG Data Request 10
Reference Answer, SECOND AFFlRMA TIVE DEFENSE. Please explain where
Rocky Mountain Power has made available to Idaho QFs a list of "required
information" referred to in this affrmative defense. If no such list exists, please
provide the communication from Rocky Mountain Power to XRG explaining the
complete list of information XRG needed to provide to perfect its right to PP As,
or to enable Rocky Mountain Power to complete standard PP As.
Response to XRG Data Request 10
Rocky Mountain Power objects to XRG's Data Request 10 to the extent that it
seeks an expert opinion, a legal opinion, or legal argument and to the extent it
calls for Rocky Mountain Power to state an opinion not previously written.
See IPUC Rule 225. Notwithstanding and without waiving the foregoing
objections, Rocky Mountain Power responds as follows.
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Rocky Mountain Power does not maintain a list of required information for Idaho
QFs. The Idaho Public Utilties Commission does not to require utilties to
maintain such a list. The Commission has recognized that a public utility is
entitled to conduct due diligence befòre offering and executing a PPA. Rocky
Mountain Power obtains the information required to perform reasonable due
dilgence and to complete and execute a PPA through a process of negotiation
with QFs requesting a PPA. The process is iterative and sensitive to the facts of a
particular case.
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There is no communication from Rocky Mountain Power to XRG explaining the
complete list of information XRG needed to provide. As discussed above, the
Idaho Public Utilty Commission dOe''nottequire, and Rocky Mountain Power
does not maintain, an exhaustive orexclusive list of required information. Rather,
the necessary information is develop~d aId obtained through the iterative and fact
specific process of negotiating a PPA fòr a specific project.i i ,! ~
In the case ofXRG's request for PPAs, Rocky Mountain Power indicated some of
the information it required on May i 1, 2009 and again on October 2, 2009 when it
provided XRG with a draft PP A that contained placeholders for information
required to produce an executable PP A. In providing XRG with a draft PP A,
Rocky Mountain Power requested thatXRG provide comments or a redline
markup of the document with XRG',a',propösed changes for discussion and
otherwise populate the draft PPAW¡'t~'up-tö~ date information regarding XRG's
proposed project. However, XRG ha,snoiyet done so. Given that XRG refused
to substantively respond to either drålfP~A, Rocky Mountain Power did not have
the opportunity to complete the iterative process of obtaining all required
information from XRG prior to the March 15, 2010 change in rates.
Recordholder:
Sponsor:
Bruce Griswold
To Be Determined
PAC-E-I0-08/Rocky Mountain Power
September 27, 2010
XRG Data Request II ;I .'\
XRG Data Request 11
Reference Answer, THIRD AFFIRMATIVE DEFENSE. Would Rocky Mountain
Power consider action in contradiction with FERC interconnection rules to be bad
faith? Would Rocky Mountain Power consider it to be bad faith to refuse to
process requests for PP As on the grounds that transmission capacity is perceived
to be lacking at a time when Rocky Mountain Power knew, or could reasonably
anticipate, that transmission capacity would not be a problem on the proposed
online date in the PPAs?~
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Response to XRG Data Request 11
Rocky Mountain Power objects toXRG'sData Request 11, on the grounds that it
seeks expert opinion, a legal opinion, or legal argument and on the grounds that it
calls for Rocky Mountain Power to state an opinion not previously written. See
IPUC Rule 225.
Recordholder:
Sponsor:
Bruce Griswold"
To Be Determined
1
PAC-E- i 0-08/Rocky Mountain Power
September 27,2010
XRG Data Request 12
XRG Data Request 12
Does PacifiCorp or any of its affiiates cQnsider transmission upgrades that are
likely to occur when it commits itself and Íts ratepayers to utilty-owned
generation resources? If so, please 'e1íplain how Rocky Mountain Power
processed XRG's requests for intercònnection and PPAs on a nondiscriminatory
basis compared to other customers, including utility-owned generation resources.
Reference 18 C.F.R. § 292.306(a).
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Response to XRG Data Request 12
Rocky Mountain Power considers pending transmission upgrades when
considering generation resources that wil be owned by Rocky Mountain Power.
Rocky Mountain Power has not processed an XRG request for interconnection.
XRG has not proposed to interconnect its projects with Rocky Mountain Power's
system. XRG presumably has an interconnection request pending or completed
between itself and the utility that owns the system with which XRG proposes to
interconnect.
Rocky Mountain Power administered XRQ',sQF PPA requests in accordance with
its PURPA obligations and Idaho Commission rules and orders. Non-QF
resources would be administered thraugh; the Company-issued Request For
Proposal (RFP) process where allreSbultes; including any independent
developers (including interested QFs) and"-itility-owned generation resources who11 ,-"Ichose to bid into the RFP, are treated'Ìn a non-discriminatory maner, with
independent evaluator oversight of the process and communication. Rocky
Mountain Power's RFP process and documents are posted on its website.
If the QF is not selected under the RFP process, the QF can still request a PPA
from Rocky Mountain Power under PURP A obligations. Rocky Mountain Power
treats all QFs requesting a PPA undetPURPA obligations in the same non-
discriminatory manner. "
Recordholder:
Sponsor:
Bruce Griswold
To Be Determined
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PAC-E-I0-08/Rocky Mountan Power
September 27,2010
XRG Data Request 13
XRG Data Request 13
Reference Answer, FOURTH AFFIRMATIVE DEFENSE. Please explain how
Rocky Mountain Power believes that XRG's projects were not sufficiently mature
when Rocky Mountain Power refused to process XRG's requests for PPAs by
even providing draft PPAs for all projects. Upon what information or belief is
this affrmative defense based? '
Response to XRG Data Request 13
Rocky Mountain Power objects to XRG's Data Request 13, on the grounds it
seeks an expert opinion, a legal opinion, or legal argument and on the grounds it
calls for Rocky Mountain Power to state an opinion not previously wrtten. See
IPUC Rule 225.
Recordholder:
Sponsor:
Bruce Griswold "
To Be Determined
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PAC-E-I0-08/Rocky Mountain Power
September 27,2010
XRG Data Request 14
XRG Data Request 14
Reference Answer, FIFTH AFFIRMATIVE DEFENSE. Please explain how
XRG could "bind itself to a legally enforceable obligation prior to March 15,
2010" when Rocky Mountain Power denied XRG's request for PPAs for all of the
XRG projects. Does Rocky Mountain Power maintain that QFs must draft and
submit PP As of their own when Rocky Mountain Power refuses to provide draft
PPAs or otherwise reasonably negotiate PPAs?
Response to XRG Data Request 14
Rocky Mountain Power objects to XRG's Data Request 14 to the extent that it
seeks an expert opinion, a legal opinion, or legal argument and to the extent it
calls for Rocky Mountain Power to state an opinion not previously written.
See IPUC Rule 225. Notwithstanding and.without waiving the foregoing
objections, Rocky Mountain Power responds as follows.
The most obvious way in which XRG could have bound itself to a legally
enforceable obligation prior to March 15,2010 would have been to substantively
respond to Rocky Mountain Power's May 11,2009 draft PPA or October 2,2009
draft PP A and to have negotiated that PP A to conclusion and execution prior to
March 15,2010. On July 6, 2009.ançl ag~in on March 11,2010, XRG informed
Rocky Mountain Power that XRG,wquldprovide redline comments and proposed
revisions to the draft PP A which Rocky ,Mountain Power provided on May i 1,
2009, and October 2,2009. Howeve-t,'for its own reasons XRG chose not to do
so; indeed, XRG has never provided 'Rocky Mountain Power with comments or
proposed revisions on the May 1 1, 2609 'draft PP A or the October 2, 2009 draft
PPA.
Because XRG did not respond to requests for comments on the draft PPA, Rocky
Mountain Power could not undertake further due diligence necessary to develop
an executable PPA, including without limitation: review ofXRG's required
facility documents; development of anunçlerstanding and appropriate contractual
provisions to address station service;:lcieteriirttion of whether XRG has secured
suffcient transmission services tod~#riyer it; output to Brady; and determination
ofXRG's creditworthiness and any related security issues.
Recordholder:
Sponsor:
Bruce Griswold
To Be Determined
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PAC-E-lO-08/Rocky Mountain Power
September 27,2010
XR G Data Request 15
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XRG Data Request 15
Reference Answer, SIXTH AFFIRMATIVE DEFENSE. Please explain why
XRG is estopped from bringing this complaint. Has the statute of limitations
expired to bring a grandfather claim? How is Rocky Mountain Power harmed by
any perceived delay in filing this complaint?
Response to XRG Data Request 15
Rocky Mountain Power objects toXR,G's Data Request 15 to the extent that it
seeks an expert opinion, a legal opinion, or legal argument and to the extent it
calls for Rocky Mountain Power to state an opinion not previously written.
See IPUC Rule 225. Notwithstanding and without waiving the foregoing
objections, Rocky Mountain Power responds as follows.
Since Februar 25, 2009, XRG has known about Rocky Mountain Power's
position that it could accommodate output from only one ofXRG's proposed 20
MW projects at the Brady Substation pending resolution of Rocky Mountain
Power's concerns regarding transmission constraints. XRG has had a draft PPA
for a 20 MW project since May 11, 2009, Notwithstanding these facts, XRG
neither provided any substantive respönse regarding the draft PP A nor initiated a
challenge before the Commission to Rocky Mountain Power's position regarding
the impact of the transmission constraint prior to the March 15,2010 rate change.
A rate change occurred more than nine months after Rocky Mountain Power
provided XRG with a draft PPA and more than a year after Rocky Mountain
Power identified the transmission constraint issue. XRG had ample time prior to
the March 15,2010 rate change to respond to the draft PPA or challenge Rocky
Mountain Power's position that a tran~mission constraint prevented it from
accommodating more than 23 M,Wqfoutput at the Brady point of delivery.
However, XRG elected not to commeBt ori,the draft PPA or pursue any challenge
prior to the March 15, 2010 rate chapge, and indeed waited a further four months
before filing a complaint with the Cdnlission. Under these facts, Rocky
Mountain Power believes that the Commission can and should conclude that XRG
is estopped from a claim to the pre-March 15,2010 published avoided cost rates.
Recordho lder:
Sponsor:
Bruce Griswold .
To Be Deternilied,
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