20100823Answer and Affirmative Defenses.pdf

LoVIGER I KAUF LL
825 NE Multnomah . Suite 925
Portand, OR 97232-2150
offce [phone]
fax [phone]
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August 20,2010
VL UPS OVERNIGHT DELIVERY
Jean D. Jewell, Secreta
Idaho Public Utilties Commission
472 W Washington Street
PO Box 83720
Boise, ID 83720-0074
Re: Case No. PAC-E-10-08
XRG, Complainant, vs.
P ACIFICORP dba ROCKY MOUNTAIN POWER, Defendant
Dear Ms. Jewell:
Enclosed for filing in the above-captioned docket are an original and seven (7) copies of
ROCKY MOUNTAIN POWER 'SANSWER AND AFFIRMTIVE DEFENSES. .
An extra copy of this cover letter is enclosed. Please date stamp the extra copy and retu it to
me in the envelope provided.
Than you in advance for your assistance.
Sincerm
:f~
cc: PAC-E-1O-08 Service List
Enclosures
Mark C. Moench
Daniel E. Solander
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, Utah 84111
Telephone: [phone]
Fax: [phone]
mark.moench(Ðpacificorp.com
danel.solander(Ðpacificorp.com
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Jeffrey S. Lovinger
Kenneth E. Kaufman
Lovinger Kaufman LLP
825 NE Multnomah, Suite 925
Portland, Oregon 97232
Telephone: [phone]
Fax: [phone]
lovinger(Ðlklaw.com
kaufman(Ðlklaw.com
Attorneys for Defendant PacifiCorp
BEFORE THE IDAHO PUBLIC UTILITIES COMMSSION
XRG-DP-7, XRG-DP-8, XRG-DP-9, XRG-DP-lO, )LLC~ )Complainant, )
)~ )
)PACIFICORP, DBA ROCKY MOUNTAIN )POWER, )Defendant. )
Case No. PAC-E-10-08
ANSWER
AND AFFIRMTIVE
DEFENSES
1 Pursuant to IDAPA Rule 31.01.01.057, PacifiCorp, dba Rocky Mountain Powerl
2 ("Rocky Mountain Power"), hereby answers the Complaint filed by XRG-DP-7, LLC, XRG-DP-
3 8, LLC, XRG-DP-9, LLC, and XRG-DP-1 0, LLC (collectively "XRG") in Case No. PAC-E-10-08.
i In as much as PacifiCorp engages in regulatory proceedings before this Commission as Rocky Mountain Power,
and includes resources such as the one in dispute here in rates set by this Commission for Rocky Mountain Power,
we wil thoughout this proceeding refer to PacifiCorp as Rocky Mountain Power for consistency with the utilty's
regulatory presence before the Commission.
1
Rocky Mountain Power's Answer and Affrmative Defenses
1 A. PRELIMIARY MATTERS
2 Copies of all pleadings and other correspondence in this matter should be served upon
3 counsel for Rocky Mountain Power at:
Jeffrey S. Lovinger
Kenneth E. Kaufman
Lovinger Kaufman LLP
825 NE Multnomah, Suite 925
Portland, Oregon 97232
Telephone: [phone]
Fax: [phone]
lovinger(Ðlklaw.com
kaufman(Ðlklaw.com
Mark C. Moench
Daniel E. Solander
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, UT 84111
Telephone: [phone]
Fax: [phone]
mark.moench(Ðpacificorp.com
danel.solander(Ðpacificorp.com
4 B. ANSWER
5 Rocky Mountain Power hereby answers XRG's Complaint lI the above-captioned
6 proceeding and states as follows:
7 1.Rocky Mountain Power denies that it does business in Idaho as Rocky
8 Mountain Energy. Rocky Mountain Power admits the remaining allegations
9 of paragraph 1.2
10 2.Having insufficient information or knowledge regarding the truth or falsity
11 of the allegations of paragraph 2, Rocky Mountain Power denies the
12 allegations contained therein and leaves XRG to the proof thereof.
13 3.The allegations of paragraph 3 are conclusions of law requiring no response.
14 4.The allegations of paragraph 4 are conclusions of law requiring no response.
15 5.Having insuffcient information or knowledge regarding the truth or falsity
16 of the allegations of paragraph 5, Rocky Mountain Power denies the
17 allegations contained therein and leaves XRG to the proof thereof.
2 In this section, "paragraph" refers to the correspondingly numbered paragrph in XRG's Complaint.
2
Rocky Mountain Power's Answer and Affrmative Defenses
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6.Having insufficient information or knowledge regarding the truth or falsity
of the allegations of paragraph 6, Rocky Mountain Power denies the
allegations contained therein and leaves XRG to the proof thereof.
Rocky Mountain Power admits that XRG contacted Rocky Mountain Power
in 2007 regarding power purchase agreements ("PP As") for proposed
qualifying facilities in Idaho. Rocky Mountain Power otherwse denies the
allegations of paragraph 7.
Rocky Mountain Power admits it informed XRG in wrting, on March 23,
2009, May 11, 2009, and October 2, 2009, that available transmission
capacity from the proposed delivery point - Brady substation - was
insufficient for accepting more than 23 megawatts of net output from XRG's
proposed qualifying facilities. Having insuffcient information or
knowledge regarding the truth or falsity of the remaining allegations of
paragraph 8, Rocky Mountain Power denies the allegations contained therein
and leaves XRG to the proof thereof.
Rocky Mountain Power admits that it has had contact with XRG regarding
PP As and that it delivered one draft PP A to XRG in May 2009 with the
understading that the draft PP A would be a template for the non-price terms
and conditions of PP As for the three remaining qualifying facilities proposed
by XRG. Rocky Mountain Power admits that the draf PPA delivered to
XRG in May 2009 contained the then-applicable avoided cost rates
contained in Order No. 30744. PacifiCorp admits that it has not delivered
any other draft PPAs to XRG.
7.
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Rocky Mountain Power's Answer and Affirmative Defenses
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Rocky Mountain Power denies that XRG had any right to rely on the draft
PP A provided by Rocky Mountain Power which draft PP A included the
following bold text disclaimer:
Tms WORKG DRAFT DOES NOT CONSTITUTE A BINDING
OFFR, SHALL NOT FORM TH BASIS FOR AN AGREEMENT
BY ESTOPPEL OR OTHERWISE, AND IS CONDITIONED UPON
EACH PARTY'S RECEIPT OF ALL REQUIRED MANAGEMENT
APPROVALS (INCLUDING FINAL CREDIT AND LEGAL
APPROVAL) AND ALL REGULATORY APPROVALS. AN
ACTIONS TAKEN BY A PARTY IN RELIANCE ON THE TERMS
SET FORTH IN TmS WORKG DRAFT OR ON STATEMENTS
MADE DURG NEGOTIATIONS PURUANT TO TmS
WORKG DRAFT SHALL BE AT THAT PARTY'S OWN RISK.
UNTIL TmS AGREEMENT IS NEGOTITED, APPROVED BY
MAAGEMENT, SIGNED, DELIVERED AND APPROVED BY
ALL REQUIRED REGULATORY BODIES, NO PARTY SHALL
HAVE AN OTHER LEGAL OBLIGATIONS, EXPRESSED OR
IMPLIED, OR ARSING IN ANY OTHER MANNER UNDER TmS
WORKNG DRAFT OR IN THE COURE OF NEGOTIATIONS.
Having insufficient information or knowledge regarding the truth or falsity
of the remaining allegations of paragraph 10, Rocky Mountain Power denies
the allegations contained therein and leaves XRG to the proof thereof.
Rocky Mountain Power denies the allegations of paragraph 11.
Rocky Mountain Power admits that it received a letter from Commission
Staff dated March 9, 2010, regarding Staffs intent to revise published
avoided cost rates. Rocky Mountain Power admits that the recalculated
avoided cost rates were substantially lower than the rates established by
Order No. 30744. Rocky Mountain Power admits that the draf PPA it
provided to XRG in May 2009 included the then-applicable avoided cost
rates established by Order No. 30744.
13.Rocky Mountain Power admits that it concured with Staff s March 2010
Rocky Mountain Power's Answer and Affirmative Defenses
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recalculation of avoided cost rates. Rocky Mountain Power admits that it
forwarded a copy of Staffs March 9, 2010 recalculation letter to XRG's
attorney Peter Richardson on March 10, 2010. Rocky Mountain Power
admits that it did not provide XRG with notice of its concurence with
Staffs rate revision.
14. The allegations of paragraph 14 have been previously addressed, above.
15. Rocky Mountain Power denies the allegations of paragraph 15.
16. Rocky Mountain Power denies the allegations of paragraph 16.
17. The allegations of paragraph 17 are conclusions of law requiring no
response.
18. Rocky Mountain Power denies the factual allegations of paragraph 18. The
remaining allegations of paragraph 18 are conclusions of law requiring no
response.
Rocky Mountain Power denies any allegation not specifically admitted above. Rocky
Mountain Power reserves the right to supplement this Answer or file a new Answer in the event
XRG amends or otherwse modifies its Complaint. Rocky Mountain Power reserves the right to
assert and file any affirmative or special defense that may become known by discovery
proceedings or other means.
5
Rocky Mountain Power's Answer and Affrmative Defenses
1 C. AFFIRMTI DEFENSES
2 For its FIRST AFFIRMATIVE DEFENSE, Rocky Mountain Power states XRG is not
3 entitled to the relief sought in its Complaint because XRG and Rocky Mountain Power did not
4 execute any PPA for XRG's Projects prior to March 15,2010.
5 For its SECOND AFFIRMATIVE DEFENSE, Rocky Mountain Power states XRG is not
6 entitled to the relief sought in its Complaint because, even if XRG did first provide all required
7 information to Rocky Mountain Power on March 12, 2010, XRG canot create a legally
8 enforceable obligation on that same date as a matter of law.
9 For its THIRD AFFIRMATIVE DEFENSE, Rocky Mountan Power states XRG is not
10 entitled to the relief sought in its Complaint because Rocky Mountain Power did not act in bad
11 faith or with undue delay as a matter of law.
12 For its FOURTH AFFIRMATIVE DEFENSE, Rocky Mountain Power states that XRG
13 is not entitled to the relief sought in its Complaint because XRG's Projects were not suffciently
14 matue to form a legally enforceable obligation on or before March 15, 2010, as a matter of law.
15 For its FIFTH AFFIRMATIVE DEFENSE, Rocky Mountain Power states that XRG is
16 not entitled to the relief sought because XRG did not manifest intent to bind itself to a legally
17 enforceable obligation prior to March 15,2010, but rather merely sought to secure an option to
18 sell to PacifiCorp at the pre-March 15 published avoided cost.
19 For its SIXTH AFFIRMATIVE DEFENSE, Rocky Mountain Power states that XRG is
20 not entitled to the relief sought in its Complaint because, XRG failed to take any timely action
21 before the Commission to challenge Rocky Mountain Power's actions and XRG is now barred
22 by the doctrine of laches or the doctrine of estoppel from obtaning PP As at the avoided cost
23 rates in effect on March 12,2010.
6
Rocky Mountain Power's Answer and Affrmative Defenses
1 WHEREFORE, Rocky Mountain Power hereby respectfully requests that the
2 Commission declare that XRG's Projects are not entitled to Idaho's avoided cost rates in effect
3 prior to March 15,2010.
./
Dated this 2fth Day of August 2010.
Respectfully submitted,
Kenneth E. Kaufman, OSB 982672
Jeffrey S. Lovinger, OSB 960147
Lovinger Kaufman LLP
Attorneys for Rocky Mountain Power
7
Rocky Mountain Power's Answer and Affrmative Defenses
CERTIFCATE OF SERVICE
I HEREBY CERTIFY that, on the 20th day of August, 2010, I served a true and correct
copy of the foregoing ROCKY MOUNTAIN POWER'S ANSWER AND AFFIRMTIVE
DEFENSES in Case No. P AC-E-1 0-08 on the following named persons/entities by
United Parcel Service Overnight Delivery, properly addressed with postage prepaid,
and electronic mail:
Jean Jewell
Commission Secretay
Idaho Public Utilities Commission
472 W Washington
Boise, ID 83702
jean. jewell(ipuc.idaho. gov
(UPS Overnight Delivery)
Peter J. Richardson
Richardson & O'Leary, PLLC
515 N. 27th Street
PO Box 7218
Boise, ID 83702
peter(irichardsonandoleary.com
(UPS Overnght Delivery)
Mark C. Moench
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, UT 84111
mark.moench(iacificorp.com
(UPS Overnght Delivery)
Gregory M. Adams
Richardson & O'Leary, PLLC
515 N. 2ih Street
PO Box 7218
Boise, ID 83702
greg(irichardsonandolear .com
(UPS Overnight Delivery)
.
Daniel E. Solander
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, UT 84111
daniel.solander(ipacificorp.com
(UPS Overnight Delivery)
~DATED this~ day of August, 2010.
LOVINGER KAUFMANN LLP
i r
ocky Mountain Power