20121005reconsideration_order_no_32657.pdf

Office of the Secretary
Service Date
October 5.2012
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
XRG-DP-7,XRG-DP-8,XRG-DP-9,)
XRG-DP-lO,LLCs,)CASE NO.PAC-E-lO-08
)COMPLAINANTS,)
)
vs.)
)PACIFICORP DBA ROCKY MOUNTAIN )ORDER NO.32657
POWER,)
)
RESPONDENT.)
On July 29,2010.XRG filed a complaint with the Commission against PacifiCorp
dba Rocky Mountain Power.XRG alleged that Rocky Mountain Power is in violation of the
Public Utility Regulatory Policies Act (PURPA),Federal Energy Regulatory Commission
(FERC)regulations and orders,and this Commission’s Orders by failing to provide XRG with a
power purchase agreement including pre-March 16,2010,published avoided cost rates.1 On
August 23,2010,Rocky Mountain Power filed its answer.Rocky Mountain Power maintained
that XRG is not entitled to pre-March 16,2010,published avoided cost rates because the parties
had not executed any power purchase agreements (PPAs)at that point in time.
In final Order No.32553 issued May 18.2012,the Commission found that,based on
the totality of the evidence and arguments presented,XRG is not entitled to pre-March 16,2010,
published avoided cost rates.As a result,the complaint filed by XRG against Rocky Mountain
Power on July 29,2010,was dismissed.On June 8,2012,XRG filed a Petition for
Reconsideration which the Commission granted.Order No.32588.Limited discovery was
granted and the parties were permitted to file briefs.Order No.32600.By this Order,we affirm
our initial decision in Order No.32533 that XRG is not entitled to pre-March 16,2010,
published rates.
XRG seeks published avoided cost rates contained in Order No.30744—rates superseded on March 16.2010,bythelowerratesofOrderNo.31025.
ORDER NO.32657
BACKGROUND
A.XRG ‘s Complaint
In its complaint,XRG asserted that,prior to March 16,2010,XRG requested four
standard power purchase agreements (PPAs,Agreements)for four PURPA qualifying facilities
(QFs)located near Malta.Idaho.Three of XRG’s projects were expected to have a nameplate
capacity of 20 MW.The fourth project was expected to have a nameplate capacity of 10 MW.
None of the QFs would produce more than 10 average megawatts (aMW).Complaint at 1.
XRG’s projects would not directly interconnect to Rocky Mountain Power’s system.XRG
proposed to deliver the projects’output (“wheel”)to Rocky Mountain Power at the utility’s
Brady substation.Id.at 3.XRG stated that it has had “extensive contact”with Rocky Mountain
Power regarding obtaining PPAs for its four projects.In response to XRG’s request for
agreements,Rocky Mountain Power provided one draft PPA to XRG in May 2009.Id.at 4.
XRG maintained that,prior to the Commission’s implementation of new published
avoided cost rates on March 16,2010.XRG provided Rocky Mountain Power with the “essential
elements”of its four projects.XRG argued that it “obligated itself to enter into four draft PPAs
for the projects”in such a way as to be entitled to pre-March 16,2010 (“vintage”),published
avoided cost rates.Id.XRG alleged that Rocky Mountain Power is in violation of PURPA.
FERC regulations and orders,and Commission Orders by failing to provide XRG with
agreements containing vintage published avoided cost rates.Id.at 5.
B.Rocky Mountain Power’s Answer
In its Answer,Rocky Mountain Power admitted that XRG contacted the utility as
early as 2007 regarding PPAs for proposed QFs in Idaho.Answer at 3.The Company
maintained that it informed XRG several times in writing in 2009 that transmission capacity
from XRG’s proposed delivery point was insufficient to accept more than 23 MW of net output
from XRG’s proposed projects.Id.Rocky Mountain Power also admitted that it delivered one
draft PPA to XRG in May 2009.The Company states that the draft PPA was intended to “be a
template for the non-price terms and conditions of PPAs for the three remaining qualifying
facilities proposed by XRG.”Id.
Rocky Mountain Power argued that XRG is not entitled to vintage published avoided
cost rates because XRG had not executed any PPAs nor had it created a legally enforceable
obligation prior to March 16,2010.Id.at 6.The Company further alleged that,because XRG
ORDER NO.32657 2
failed to take any timely action to challenge Rocky Mountain Power,the projects are barred by
the doctrines of laches and estoppel from obtaining PPAs with vintage rates.
After a period of protracted discovery,on February 7,2011,Rocky Mountain Power
filed a Motion for a Protective Order to Stay Discovery and a Motion for Summary Judgment
with the Commission.Rocky Mountain Power requested a protective order partially staying
discovery pending the resolution of the Company’s Motion for Summary Judgment.
XRG alleged that PacifiCorp’s Motion for Summary Judgment is not appropriate
because Commission rules do not provide for motions for summary judgment.“The complex
factual record before the Commission does not support a finding that it would be in the public
interest to process this case without a hearing.”Answer at 17.XRG also maintained that
PacifiCorp’s Motion fails the basic requirement that it include admissible evidence in support of
all material facts.
C.OralArgument
In response to Rocky Mountain Power’s Motion for Summary Judgment and XRG’s
request for a hearing,the Commission issued a Notice of Hearing for Oral Argument on May 18,
2011.Order No.32246.The Commission directed the parties to address whether there is a
genuine issue as to any material fact regarding XRG’s complaint.The Commission also invited
the parties to address XRG’s Motion to Complete Discovery.Oral arguments were presented on
June 9,2011.
Rocky Mountain Power argued that it “repeatedly and consistently told XRG that it
would only accept 23 megawatts at the published avoided cost price.”Tr.at 6.The Company
provided XRG with one draft PPA in May 2009.In October 2009,the Company explained that
it was only offering one PPA because the point of delivery proposed by XRG for all of its four
projects had transmission constraints.Tr.at 7.Rocky Mountain Power explained that,if the
Company had an obligation to accept additional output at the Borah and Brady substations,
“PacifiCorp will expect [XRGJ to pay for all resulting interconnection costs,including network
upgrades.”Tr.at 7.
Rocky Mountain Power maintained that,prior to March 16,2010,XRG did not
clearly manifest its intent to obligate itself to deliver power to the Company.The utility asserted
that XRG expressed intent to negotiate,but the parties never agreed to any material terms for the
ORDER NO,32657 3
power purchase agreements because XRG had not returned the draft agreement provided by the
Company in May 2009.Rocky Mountain Power explained that the parties
didn’t agree to the price,at least not with respect to the three projects
PacifiCorp said it didn’t have existing capacity to accept;they didn’t agree on
the point of delivery or the form of delivery to the point of delivery,that is,
the off-system transmission that would bring the power to the point of
delivery;they didn’t agree on delay default security;they never even
discussed curtailment rights or insurance;and they didn’t agree on a
commercial on-line date,and the record shows that more than one date was
proposed.
Tr.at 10.Rocky Mountain Power argued that “each time [the Company]requested that XRG
confirm the continuing validity of its January 2009 submittal —and it did so on October 2’of
2009 and also April 13,2010 —it received no response.”Id.The utility further asserted that
there were long periods of time where no communication occurred between the Company and
XRG,i.e.,May 12 to July 6,2009;July 6 to September 18,2009;November 9,2009 to March
11,2010.Id.Communication was re-established in March 2010 only after XRG was notified by
Rocky Mountain Power of the Commission’s intent to revise published avoided cost rates.
XRG maintained that there are still material facts in dispute and that it is entitled to
additional discovery.Tr.at 17.Specifically,XRG argued that Rocky Mountain Power either
knowingly,or through negligence or ineptitude,“acted so as to prevent the QF from obtaining a
contract.”Tr.at 31.“Rocky Mountain Power’s refusal to negotiate at that point in time was a
major contributing factor to XRG not being able to fund $80,000 for an additional
interconnection study [required by BPA]for all four projects.”2 Tr.at 30.XRG alleges that
Rocky Mountain Power’s failure to negotiate “caused XRG to allow its interconnection requests
to lapse in March of 2009.”Tr.at 30.
XRG filed its complaint in July 2010 regarding the transmission access dispute with
Rocky Mountain Power.On September 21,2010,during the discovery phase of this complaint,
Rocky Mountain Power notified XRG that network transmission capacity was now available for
the output from all four projects and could be integrated without any upgrade costs.Tr.at 24.
XRG questioned how Rocky Mountain Power did not know earlier that network transmission to
2 XRG’s four projects were considered “off system.”The projects would not directly interconnect to Rocky
Mountain Power’s system.Therefore,in order to deliver its energy to Rocky Mountain Power,XRG needed a third
party transmission agreement,i.e.,an agreement to wheel the energy to Rocky Mountain Power at the utility’s Brady
substation.XRG was attempting to secure a third party transmission agreement with BPA.
ORDER NO.32657 4
accommodate all four projects would be available by the projects’initial on-line date in January
2009.“XRG’s theory of the case is that Rocky Mountain Power abused its role as PURPA
negotiator and network transmission service provider to stall PURPA negotiations from March
2009 until September of 2010 by failing to acknowledge the availability of the Populus to
Terminal upgrades for XRG’s project.”Tr.at 3 1-32.
D.The Commission ‘s Final Order
In Order No.32553 the Commission denied Rocky Mountain Power’s Motion for
Summary Judgment.The Commission determined that there were genuine issues of material fact
related to the underlying complaint that did not permit a determination of this case through use of
summary judgment.Order No.32553 at 7.However,the record provided through pleadings and
at oral argument presented ample evidence for the Commission to weigh the disputed facts and
decide the underlying matters alleged in XRG’s original complaint.Rule of Procedure 327,
IDAPA 3 1.01.01.327.
XRG submitted its initial request for four power purchase agreements in January
2009.In March 2009,Rocky Mountain Power communicated to XRG that the utility could only
accept 23 MW of energy at the published avoided cost rates because XRG’s chosen point of
interconnection to Rocky Mountain Power’s system (the Brady substation)had transmission
constraints.The Company explained that any additional purchases of energy from XRG by
Rocky Mountain Power would have to be price-adjusted to reflect any resulting interconnection
and network upgrade costs.Tr.at 7.Also in March of 2009,XRG allowed its interconnection
(wheeling)requests with BPA to lapse.XRG claims that Rocky Mountain Power’s failure to
negotiate caused the projects’inability to fund $80,000 for an additional interconnection study
required by BPA.Tr.at 30.However,at the time XRG allowed its interconnection requests to
expire,Rocky Mountain Power had only recently asserted its inability to accept more than 23
MW at the Company’s Brady substation.Moreover,we found that the record in this case reflects
that regular communications between XRG and Rocky Mountain Power continued through May
2009 when Rocky Mountain Power provided XRG with a single PPA for its review.Order No.
32553 at 7.This Commission further found no evidence in the record that Rocky Mountain
Power was refusing to negotiate in March 2009.Id.Based on the foregoing,we concluded that
XRG’s assertion that its interconnection requests with BPA lapsed because of Rocky Mountain
Power’s intransigent conduct was without merit.Id.
ORDER NO.32657 5
Thereafter,the Commission noted that significant periods of time elapsed with no
communication between Rocky Mountain Power and XRG,i.e.,May 12 to July 6,2009 —July 6
to September 18.2009 —November 9,2009 to March 11.2010.On July 6,2009.XRG
acknowledged the lapse in communications to the utility by stating,“Please accept our apologies
on not getting back to you sooner.”Motion for Summary Judgment,Exh.A at 201.XRG
further stated that it would “provide a redline to this contract and the other 3 identical contracts
proposed....“Id.By September 2009,XRG had not yet returned the draft PPA provided by
Rocky Mountain Power to the projects four months earlier.E-mail communications indicate that
XRG and Rocky Mountain Power were poised to discuss the transmission constraints in early
November 2009.
On March 10,2010,XRG received notice of the Commission’s intent to revise its
published avoided cost rates.On March 11,2010,XRG contacted Rocky Mountain Power and
notified the Company that the project would replicate the single PPA provided by the Company
for XRG’s three other projects and “present a redline of all four projects as originally requested
back in January 2009 for your review and approval.”Id.at 289.On March 16,2010,the
Commission issued Order No.31025 revising,and lowering,the published avoided cost rates for
PURPA projects.XRG maintained in its complaint that,prior to March 16,2010,it provided
Rocky Mountain Power with the “essential elements”of its four projects in order to be entitled to
pre-March 16,2010,published avoided cost rates.The Commission found no evidence that
XRG ever returned the one draft PPA with modifications and/or edits —much less three
additional PPAs that XRG asserted it would reproduce and submit for Rocky Mountain Power’s
review.Order No.32553 at 9.Even in XRG’s March 12,2010,letter from counsel indicating
XRG’s intent to enter into contracts,no redlined PPAs were included.We determined that,
while negotiations had begun,the parties clearly had differing views about the availability of
transmission and the parties had not yet discussed terms of the four PPAs.Id.Consequently,the
Commission found that XRG did not take sufficient action so as to obligate itself to deliver
energy to Rocky Mountain Power for any of the four projects contemplated by the developer.Id.
We further found that XRG’s failure to return even a single draft PPA in time to be eligible for
the existing (now vintage)published avoided cost rates cannot be attributed to a failure to
negotiate by Rocky Mountain Power.Id.
ORDER NO.32657 6
We further found that,prior to the time the published rates changed in March 2010,
Rocky Mountain Power reasonably held its position that transmission in the area of XRG’s
requested interconnection was constrained.Id.In early 2009,when XRG initially proposed its
projects,Rocky Mountain Power reviewed the publicly available information regarding its
available transmission (OASIS).The report showed that there was then between 20 and 25 MW
of unsubscribed capacity available at the location requested by XRG.Tr.at 49.This
information was relayed to XRG.Rocky Mountain Power suggested proceeding with a single
PPA and investigating alternatives for the remainder of the projects.The utility did not refuse to
accept any of XRG’s projects in fact,Rocky Mountain Power informed XRG that purchases of
energy from XRG in excess of the available transmission capacity would have to be price-
adjusted to reflect interconnection and network upgrade costs.Based on these facts,we found no
evidence that Rocky Mountain Power was attempting to impede negotiations with XRG by
failing to acknowledge future transmission upgrades on its system.Order No.32553 at 10.
The Commission found that a legally enforceable obligation cannot exist until a QF
takes sufficient steps to show that it has obligated itself to provide energy to the utility and that,
but for the utility’s conduct,the parties would have entered into a contract.We further found
that an assertion that XRG intends to enter into a contract with Rocky Mountain Power,without
actions in furtherance of its intent,was not sufficient to establish XRG’s entitlement to pre
March 2010 published avoided cost rates.Consequently,we dismissed XRG’s complaint.
RECONSIDERATION
A.XRG ‘s Petition
On June 8,2012,XRG filed a Petition for Reconsideration with the Commission.
XRG requested that the Commission reconsider its previous Order and issue an Order (1)
denying Rocky Mountain Power’s Motion for Summary Judgment;(2)reinstating XRG’s
original claim for pre-March 16,2010,published avoided cost rates;(3)granting XRG’s request
for leave to amend its complaint;(4)granting XRG’s Motion to Complete Discovery;and (5)
providing XRG an opportunity to file its own motion for summary judgment at the close of
discovery on reconsideration.
XRG maintains that “FERC’s regulations entitle QFs to long term contract rates set at
the purchasing utility’s full avoided costs at the time the QF commits itself to a legally
enforceable obligation to deliver its project’s output over a specified term”as long as the QF can
ORDER NO.32657 7
demonstrate that,but for the actions of the utility,the QF would have obtained a power purchase
contract.XRG Brief at 3.XRG argues that Rocky Mountain Power intentionally put blinders
on and misled XRG as the true nature of the available transmission capacity.”Id.at 4.
XRG suggests that RMP could have made execution of a PPA contingent on the
availability of transmission service rather than relying on the publicly available information
through OASIS.(The Populus line upgrade became publicly available information on OASIS on
July 15,2010.)XRG argues that RMP’s choice to not offer a contingent contract is evidence of
RMP’s intent to prevent XRG from obtaining a contract.id.at 5.XRG maintains that RMP’s
actions are “contrary to established FERC practices”and “obviously done for the sole purpose of
frustrating this QF developer from access to the market in favor of Rocky Mountain Power’s
own resources.”Id.at 7.
B.Rocky Mountain Power’s Answer
Rocky Mountain Power asserts that there is nothing in XRG’s Motion for
Reconsideration that changes the basic conclusions of the Commission’s Order in dismissing
XRG’s complaint.Brief at 3.The Company recites the Commission’s conclusion that the
record lacked sufficient evidence to show that Rocky Mountain Power impeded negotiations by
failing to acknowledge future transmission upgrades.With regard to making a “contingent”
offer,the utility maintains that it does not have a legal duty to advise XRG on how to configure
its projects —and XRG did not request a contingent contract.Moreover,QF resources must be
network resources;therefore,firm transmission is required and a non-firm option would not be a
viable alternative.
Rocky Mountain Power argues that the evidence in the record supports the
Commission’s decision to dismiss XRG’s complaint.XRG failed to take action necessary to
establish a legally enforceable obligation prior to March 16,2010.The Company further asserts
that XRG’s Motion to Amend was procedurally deficient and should,therefore,be denied.The
utility suggests that the Commission utilize the opportunity on reconsideration to clarify the facts
and reasoning supporting its decision to dismiss XRG’s underlying complaint.
C.Procedural Matters oii Reconsideration
On July 6,2012,the Commission issued Order No.32588 granting reconsideration of
final Order No.32553.In granting reconsideration,the Commission also granted XRG’s
narrowed request to complete discovery in order to allow XRG answers to the issues that it
ORDER NO.32657 8
argued are necessary to support its complaint.Order No.32600.See also XRG’s Withdrawal of
Production Requests filed June 9,2011.Rocky Mountain Power is directed to respond to
Production Request Nos.24,25.26,27,31,32(b),(d).(e),33(a).34.35.40,45 and 47.
In its Petition,XRG also claimed that the Commission failed to rule on XRG’s
request to amend its complaint.XRG’s original complaint was filed with the Commission on
July 29,2010.At the time XRG requested reconsideration;no amended complaint had been
filed with the Commission.3 The Commission explained that amendments are permissible
pursuant to Rule 66 of the Commission’s Rules of Procedure.Order No.32600.However,the
Commission observed that XRG’s notation in a footnote in an Answer to Motion for Summary
Judgment “is not sufficient to consitute a motion upon which the Commission can base a ruling.
If XRG seeks to amend its complaint it must do so pursuant to the Commission’s Rules of
Procedure.See IPUC Rules 56 and 66.”Id.at 1.Consequently,the Commission declined to
recognize XRG’s footnote as a request for amendment.Id.
Following the deadline for discovery responses,both parties were given a final
opportunity on reconsideration to assert a position through legal briefs regarding the merits of the
underlying XRG complaint,i.e.,whether and to what extent XRG is entitled to pre-March 16,
2010,published avoided cost rates.Rocky Mountain Power and XRG each filed a legal brief on
September 10,2012.
FINDINGS AND CONCLUSIONS
The Idaho Public Utilities Commission has jurisdiction over this matter pursuant to
the authority and power granted it under Title 61 of the Idaho Code and the Public Utility
Regulatory Policies Act of 1978 (PURPA).The Commission has authority under PURPA and
the implementing regulations of FERC to set avoided costs,to establish standard published
avoided cost rates,to order electric utilities to enter into fixed-term obligations for the purchase
of energy from QFs,and to implement FERC regulations.
Under FERC rules,utilities are required to purchase QF generation at a rate equal to
the utility’s avoided cost.18 C.F.R.§292.304(b)(2).“Avoided costs”are the incremental costs
to the electric utility of power which,but for the purchase from the QF,such utility would
On July 27,2012,after XRG’s Petition for Reconsideration had been filed and in response to the Commission’s
finding in Order No.32600 that XRG had not yet requested the Commission to amend its complaint,a First
Amended Formal Complaint was filed by XRG with the Commission.
ORDER NO.32657 9
generate itself or purchase from another source.18 C.F.R.§292.101(b)(6).Although FERC
promulgated the general scheme and rules,it left the actual implementation of PURPA to the
state regulatory authorities.Rosebud Enterprises,Inc.v.Idaho Public Utilities Commission.128
Idaho 609.614,917 P.2d 766,771 (1996).FERC regulations grant the states latitude in
implementing the regulation of sales and purchases between QFs and electric utilities.See
Federal Ener Regulatory Commission v.Mississippi,456 U.S.742,102 S.Ct.2126.72
L.Ed.2d 532 (1982).
Reconsideration provides an opportunity for a party to bring to the Commission’s
attention any question previously determined and thereby affords the Commission with an
opportunity to rectify any mistake or omission.Washington Water Power Co.v.Kootenai
EnvironmentalAlliance,99 Idaho 875,879,591 P.2d 122,126 (1979).The Commission granted
reconsideration on this matter on July 6,2012.Order No.32588.
After reviewing the underlying record,our prior Order,and the parties’arguments on
reconsideration,we continue to find that XRG is not entitled to pre-March 16,2010.published
avoided cost rates for several reasons:(1)XRG has failed to establish that its interconnection
request with BPA (for wheeling the energy to Rocky Mountain Power’s system)lapsed in March
2009 due to bad conduct on the part of the utility;(2)XRG has not proven that it took sufficient
steps toward obligating itself to deliver energy to Rocky Mountain Power such that a legally
enforceable obligation was created;and (3)XRG has failed to demonstrate that at the time
published rates changed in March 2010,Rocky Mountain Power unreasonably held its position
that transmission in the area of XRG’s interconnection was constrained.
First,we find that XRG has failed to establish that its interconnection requests with
BPA lapsed because of Rocky Mountain Power’s intransigent conduct.When XRG requested
four power purchase agreements in January 2009,Rocky Mountain Power responded in March
2009 by notifying XRG that only 23 MW of transmission capacity was available.Because of the
transmission constraints,the utility informed XRG that any additional purchases of energy would
have to be price-adjusted to reflect interconnection and network upgrade costs.Order No.32553
at 7.XRG had initiated contact with Rocky Mountain Power but,in early 2009,negotiations had
scarcely begun.We find no evidence that the utility was failing to negotiate or otherwise
attempting to impede the negotiation process.On the contrary,in response to XRG’s request for
four PPAs,the utility assessed its available transmission capacity at the point of interconnection
ORDER NO.32657 10
requested by XRG and determined that only a limited amount (23 MW)of transmission capacity
was available.The utility reported its findings to XRG in March 2009.and informed the projects
that any purchases in excess of the available capacity would have to be price-adjusted to reflect
any required interconnection and network upgrade costs.XRG made a choice at that time to
allow its interconnection request with BPA to lapse because BPA was requesting $80,000 for an
additional interconnection study.Tr.at 30.However,we find that XRG’s decision to allow its
interconnection request to lapse in March 2009 cannot be attributed to bad conduct or
unnecessary delay on the part of Rocky Mountain Power.Order No.32553 at 7.
Second,XRG is a sophisticated QF developer,as evidenced by the numerous and
various cases in front of this Commission in which it has participated.See IPC-E-04-2,Order
No.29480;PAC-E-05-9,Order No.29880;AVU-E-07-02,Order No.30500;IPC-E-07-03,
Order No.30488;PAC-E-07-07.Order No.30497;IPC-E-07-13,Order No.30493 IPC-E-07-
15,Order No.30480;AVU-E-09-04,Order No.30921;IPC-E-10-22,Order No.32104;also see
generally GNR-E-ll-03.Despite the fact that XRG is well-versed in utility and regulatory
issues as they pertain to QF development,XRG did not take sufficient action so as to obligate
itself to deliver energy to Rocky Mountain Power prior to the rate change on N arch 16,2010.
Communications between XRG and Rocky Mountain Power waxed and waned during 2009,and
early 2010.It was not until March 2010,when XRG received notice of the Commission’s intent
to revise its published avoided cost rates,that XRG attempted in earnest to establish its
entitlement to contracts.However,due to only intermittent communications,the terms of XRG’s
four requested PPAs had not been negotiated.A solution to Rocky Mountain Power’s stated
transmission constraints had yet to be resolved.In short,we find XRG had not taken sufficient
steps to establish a legally enforceable obligation at the time the rates changed in March 2010.
As we stated in our previous Order,“an assertion that XRG intends to enter into a contract with
Rocky Mountain Power,without actions in furtherance of its intent,is not sufficient to establish
entitlement to pre-March 2010 published avoided cost rates.”Id.at 10.
Finally,XRG has failed to demonstrate that at the time published rates changed in
March 2010,Rocky Mountain Power unreasonably held its position that transmission in the area
of XRG’s interconnection was constrained.Id.at 9.As it does with all requests made for QF
interconnection,the utility reviewed the publicly available information regarding available
transmission at the point of interconnection requested by XRG.The report reflected limited
ORDER NO.32657 11
transmission availability.Rocky Mountain Power proceeded based on the results of its
transmission report.The fact that additional transmission became available in July 2010 does
not change or impugn the representations made by the utility in March 2009 based on publicly
available information.We find that,at the time published rates changed in March 2010.Rocky
Mountain Power reasonably held its position that transmission at the point of interconnection
requested by XRG was constrained.
We next turn to the issue of XRG’s amended complaint.XRG’s original complaint
was filed with the Commission on July 29,2010.XRG argued in its original complaint that it
was entitled to pre-March 16,2010,published rates.In its Answer to Rocky Mountain’s Motion
for Summary Judgment filed February 22,2011,XRG requested in a footnote “leave to amend
its complaint.”Answer to Summary Judgment at 18,n.9.Later in its Petition for
Reconsideration filed on June 8,2012,XRG claimed that the Commission had not ruled on the
request to amend the complaint.However,the Commission observed in the Reconsideration
Scheduling Order No.32600 that “No amended complaint has ever been received by the
Commission.”Order No.32600 at 1 (July 26,2012).The Commission continued that if”XRG
seeks to amend its complaint it must do so pursuant to the Commission’s Rules of Procedure.See
IPUC Rules 56 and 66.”Id.
In response to this admonishment,XRG filed a “Motion to Amend Complaint”on
July 27,2012.Its Motion was filed nearly two years after the original filing —claiming,in the
alternative,that XRG is entitled to the rates in effect after March 16,2010.We find it
reasonable to deny XRG’s Motion to Amend its original complaint.
A “decision to grant or to deny a motion to amend a pleading is reviewed by [the
Idaho Supreme]Court under an abuse of discretion standard.‘[The trier of fact]does not abuse
its discretion if it (1)correctly perceives the issue as discretionary,(2)acts within the bounds of
discretion and applies the correct legal standards,and (3)reaches the decision through an
exercise of reason.”Fragnella v.Peirovich,153 Idaho 266,281 P.3d 103,114(2012)(internal
citations omitted),citing West Wood Invs.Inc.v.Acord,141 Idaho 75,82,106 P.3d 401,408
(2005).Pursuant to Rule 66 of our Rules of Procedure,the Commission “may allow any
pleading to be amended or corrected or any omission to be supplied.Pleadings will be liberally
construed,and de/cts that do not affect substantial rights of the parties will be disregarded.”
IDAPA 31.01.01 .066 (emphases added).
ORDER NO.32657 12
We find XRG’s claim of entitlement to post-March 16,2010,published avoided cost
rates was not a matter fully and fairly litigated by the parties nor previously’considered by this
Commission.We further find it is wholly inappropriate and patently unfair for XRG to request
an amendment 12 months after its original complaint was filed and more than four months after a
final Order has been issued on its complaint —during the reconsideration of the Commission’s
initial decision.We also find that allowing the complaint to be amended at this late date will
cause unnecessary delay and be prejudicial to Rocky Mountain Power.Maroun v.iyreless
Systems.Inc..141 Idaho 604,612.114 P.3d 974,982 (2005).Therefore,we dismiss without
prejudice XRG’s Motion to Amend its original complaint.
ORDER
IT IS HEREBY ORDERED that,for the reasons set out in greater detail in the body
of this Order,we affirm our prior final Order No.32553,and dismiss XRG’s complaint filed on
July 29,2010.XRG has not established entitlement to pre-March 16,2010,published avoided
cost rates.
IT IS FURTHER ORI)ERED that the Motion to Amend the original complaint filed
by XRG on July 27,2012,is dismissed without prejudice.
THIS IS A FINAL ORDER ON RECONSIDERATION.Any party aggrieved by
this Order or other final or interlocutory order previously issued in this Case i’o.PAC-E-10-08
may appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and the Idaho
Appellate Rules.See Idaho Code §61-627.
ORDERNO.32657 13
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho this /
day of October 2012.
PAUL KJELL1\.I)LR.LSlDLNI
A :\)
MACK A.REDD,’OAMISS1ONER
J
ATTEST:
L ‘:
Jean D.Jewell
Commission Secretary
0:PAC-E-1 0-08ks5 Reconsideration
4ti zI &i4iL
MARSHA H.SMITH,COMMISSIONER
ORDER NO.32657 14