20210525Reply Comments.pdf

Gregory M.Adams (ISB No.7454)
Peter J.Richardson (ISB No.3195):'a
Richardson Adams,PLLC
515 N.27th Street
Boise,Idaho 83702
Telephone:[phone]
Fax:[phone]
[e-mail]
[e-mail]
Attorneys for Fall River Rural Electric Cooperative,Inc.
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF )CASE NO.PAC-E-21-06PACIFICORPFORAPPROVALOR)REJECTION OF THE PURCHASE POWER )REPLY COMMENTS OF FALLAGREEMENTWITHCHESTERDIVERSION)RIVER RURAL ELECTRICHYDROPROJECT)COOPERATIVE,INC.
INTRODUCTION AND SUMMARY
Pursuant to Order No.34976 issued by the Idaho Public Utilities Commission
("Commission")on March 25,2021,Fall River Rural Electric Cooperative,Inc.("Fall River")
hereby submits its reply comments.
As explained below,Fall River agrees with the first two of Staff's proposed amendments
to the power purchase agreement ("PPA"),which recommend correcting typographical errors with
respect to the amounts of generationestimates in Section 4.9,Exhibit A,and page 3 of the
PPA,and the units for the Maximum Delivery Rate in Exhibit A.
However,as discussed further below,Fall River disagrees with Staff's third proposal that
the avoided cost rates should reflect the first deficit date of July 2029.Rather,the PPA filed for
approval properly contains the avoided cost rates with the first deficit date of 2028 because those
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are the rates that were in effect when Fall River committed itself to sell the energy and capacity of
the Chester Diversion Project. The PPA itself was executed in the days after the Commission’s
order updating the first deficit date only because PacifiCorp, dba Rocky Mountain Power,
(“PacifiCorp”) did not supply the executable PPA until after such order was issued. Fall River had
expressed its commitment to the final PPA on January 5, 2021. Additionally, from the start of the
PPA discussion process, PacifiCorp was delayed on numerous occasions in its response to the
request for the PPA and requested edits to drafts, and therefore it would be unjust to penalize Fall
River for such delays with the lower avoided cost rates in 2028, as recommended by Staff.
Accordingly, Fall River respectfully requests that the Commission approve the PPA containing
the rates agreed to by the parties and filed for approval by PacifiCorp.
BACKGROUND
This proceeding regards the approval of a PPA for the Chester Diversion Project. Fall
River owns and operates the Chester Diversion Project hydropower facility, which is already
constructed and operating. Declaration of Bryan Case, at ¶¶ 3-4.1 The Chester Diversion Project
is a small hydropower facility utilizing water power of the head of a pre-existing Chester Diversion
Dam (a.k.a. the Cross Cut Diversion dam) on the Henry’s Fork of the Snake River in Fremont
County, Idaho, and it is self-certified with the Federal Energy Regulatory Commission (“FERC”)
as a qualifying facility (“QF”) under Section 201 of the Public Utility Regulatory Policies Act of
1978 (“PURPA”). See FERC Docket No. QF10-337. As a QF with a maximum capacity of only
2.0 megawatts (“MW”), the facility is eligible for PacifiCorp’s published avoided cost rates
approved by the Commission for non-seasonal hydropower facilities.

1 The facts set forth in these reply comments are supported by the Declaration and Exhibits
of Bryan Case filed concurrently herewith.

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Fall River decided to sell the energy and capacity of the facility to PacifiCorp as a QF, and
Fall River first contacted PacifiCorp to request a PPA for such sales with a written request
providing all of the information listed in PacifiCorp’s Schedule 38 on September 12, 2019.
Declaration of Bryan Case, at ¶ 5. Fall River had hoped to begin such sales to PacifiCorp as soon
as possible, but it took much longer than expected to finalize a PPA with PacifiCorp. Id. at ¶ 6.
In total, it took over one year and five months to get the PPA finalized and fully executed for the
Chester Diversion Project – from September 12, 2019, until February 26, 2021. Id. During this
time period, Fall River experienced delays in PacifiCorp’s responses to requests for a draft PPA
and in responses to edits to the draft PPAs supplied by PacifiCorp. Id. at ¶¶ 6 & 50-58.
Additionally, even though Fall River had committed to the final PPA on January 5, 2021,
PacifiCorp did not indicate its preferred process for execution of the document until February 11,
2021. Id. at ¶¶ 56-57. Fall River executed the PPA on that same date, on February 11, 2021, and
PacifiCorp executed it on February 26, 2021. Id. at ¶ 58.
As Staff recites in its comments, the Commission issued Order No. 34918 that changed
PacifiCorp’s avoided cost rates on February 9, 2021. Staff’s Comments at 4. The effect of that
order was to change PacifiCorp’s approved rates with respect to only 2028, due to a change in the
first capacity deficit year, which reduced the rates for 2028 by approximately $30 per MWh. Id.
at 5 (noting the reduction from $67.85 per MWh to $37.65 per MWh). PacifiCorp explained in its
Application, however, that: “The Agreement was negotiated during 2020 and was subject to
Commission Order No. 33917 that established the Company’s first capacity deficit period for use
in the SAR-based avoided cost calculations as July 2028.” Application at 4. Accordingly, those
are the rates that the parties intentionally included in the PPA they executed and submitted for
approval. However, Staff asserts that the Commission should modify the PPA to include the

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updated rates for 2028, as approved in Order No. 34918, because the PPA was not fully executed
until February 26, 2021. Staff’s Comments at 4-5. Fall River respectfully disagrees with Staff’s
recommendation on that point, which does not address or consider that the final PPA would have
been executed before issuance of Order No. 34918 but for PacifiCorp’s delays in the PPA
contracting process.
ARGUMENT
The Commission should find that Fall River perfected entitlement to avoided cost rates in
the PPA submitted for approval. It would be unjust and unreasonable to deny Fall River’s right to
those rates, which became unavailable before the PPA was executed due to delays in the
contracting process by PacifiCorp. For the reasons explained below, the Commission should not
adopt Staff’s proposal to update the rates applicable to 2028.
A. A Legally Enforceable Obligation Can Entitle a QF to Rates that Were in
Effect Prior to the Date the Written Agreement is Formally Executed

Under FERC’s regulations which this Commission implements, a QF is entitled to form a
legally enforceable obligation (or “LEO”) to the rates and terms and conditions in effect at the
time that it commits itself to sell power to the utility. See 18 C.F.R. § 292.304(d). FERC has
explained that each QF “has the right to choose to sell pursuant to a legally enforceable obligation,
and, in turn, has the right to choose to have rates calculated at avoided costs calculated at the time
that obligation is incurred.” JD Wind 1, LLC, 129 FERC ¶ 61,148, at P 29 (2009). Under the LEO
rule, “a QF, by committing itself to sell to an electric utility, also commits the electric utility to
buy from the QF; these commitments result either in contracts or in non-contractual, but binding,
legally enforceable obligations.” Virginia Electric and Power Co., 151 FERC ¶ 61,038, P 25
(2015).

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Thus, the date on which a vintage of rates is locked in by the QF can predate the execution
of the written contract, and the subsequent execution of a written contract does not nullify the right
to such vintage of rates locked in through the LEO rule. The rules use the “terms ‘contract’ and
‘legally enforceable obligation’ in the disjunctive to demonstrate that a legally enforceable
obligation includes, but is not limited to, a contract.” Cedar Creek Wind, LLC, 137 FERC ¶ 61,006,
at P 35 (2011).
This Commission has approved many QF contracts that were executed after the date that
the vintage of avoided cost rates contained therein became unavailable in recognition of the right
under the LEO rule to lock in avoided cost rates before a final written agreement is executed. For
example, in the case of the Cargill agreement, Idaho Power represented that “approximately 10
days prior to March 16, 2010[, the date of the rate change,] Idaho Power’s management started the
process of reviewing the agreed-upon draft for final approval and execution.” Case No. IPC-E-
10-15, Order No. 32024 at 3. Even though no complaint was filed or adjudicated, the Commission
approved the subsequently executed agreement with the previously effective rates, stating as
follows:
On the May 4, 2010 date of contract signing the higher contract rates of Order No.
30744 had been replaced by the lower rates of Order No. 30125 (Case No. GNR-
10-01) approved by the Commission on March 16, 2010. We find that the Company
has fairly represented our past grandfathering criteria requirements. We further find
the Company’s approach in this case regarding contract rates to be in concert with
the spirit of those prior grandfathering cases. See A. W Brown v. Idaho Power, 121
Idaho 812, 828 P.2d 841 (1992); Order No. 29872, Case No. IPC- 05-22.

In this case, Idaho Power and Staff believe that Cargill is entitled to
grandfathering and the rates of Order No. 30744. Idaho Power represents that all
outstanding contract issues had been resolved prior to March 16, 2010, and that but
for the internal review process of the Company a contract would have been signed
prior to March 16. Based on the record established in this case, we find that Cargill
is entitled to the grandfathered rates of Order No. 30744.

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Id. at 4.2

A LEO will frequently arise in a case where the purchasing utility’s delays in the
contracting process deprive the QF of the ability to achieve a fully executed contract before its
preferred vintage of rates become superseded by subsequently approved rates. As this
Commission recently explained, the Idaho Supreme Court “upheld the IPUC’s determination that
the QF had established a LEO” in Rosebud Enterprises, Inc. v. Idaho Public Utilities Comm’n,
128 Idaho 609, 917 P.2d 766 (1996). Case No. IPC-E-20-17, Order No. 34957 at 5 (Black Mesa
Energy Storage). In Rosebud Enterprises, the Court found:
The IPUC recognized that [the QF] was delayed in its efforts to determine project
viability by [the utility]. The IPUC’s effort to correct the effect of this delay is
within its authority. The IPUC decision is not a final determination of avoided costs,
but puts [the QF] in the position of determining the viability of its project using
rates that reflect the time frame [the QF] should have been able to proceed but for
the delays caused by [the utility].

Order No. 34957 at 5 (quoting Rosebud Enterprises, 128 Idaho at 624). The QF was awarded “a
starting point for negotiations based upon the superseded avoided costs” because it was not entitled
to published avoided cost rates; the final rates were thus subject to further refinement based on the
previously effective vintage of rates. Rosebud Enterprises, 128 Idaho at 623.
In affirming the Commission, the Court specifically invoked the LEO rule. It explained,
“The governing principle in this case is similar to that of recent FERC cases wherein FERC held

2 Similar treatment occurred in numerous other Commission orders. See Case No. IPC-E-
10-16, Order No. 32025 at pp. 2-4 (same for Rock Creek Dairy); IPC-E-10-17, Order No. 32026,
at 2-4 (same for Swagger Farms Dairy); IPC-E-10-18, Order No. 32027 at 2-4 (same for Double
B Dairy); IPC-E-10-19, Order No. 32068 at 1-6 (same for Grand View PV One Solar); IPC-E-10-
26, Order No. 32138 at 2-3 (same for AgPower Jerome); IPC-E-10-22, Order No. 32104 at 2-12
(same for Yellowstone Power, where no written documentation demonstrated that contract terms
were complete before date of rate change).

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that contract rates maintain their validity regardless of subsequent price changes.” Id. (citing West
Penn Power Co., Docket No. EL95-30-000; 18 C.F.R. § 292.304(b)(5)).3
This application of the LEO rule remains well supported in the law. FERC has stressed
that “the phrase legally enforceable obligation is broader than simply a contract between an electric
utility and a QF and that the phrase is used to prevent an electric utility from avoiding its PURPA
obligations by refusing to sign a contract, or as here, delaying the signing of a contract, so that a
later and lower avoided cost is applicable.” Cedar Creek Wind, LLC, 137 FERC ¶ 61,006, at P 36.
FERC has explained:
In order to protect the rights of a QF, once a QF makes itself available to sell to a
utility, a legally enforceable obligation may exist prior to the formation of a
contract. A contract serves to limit and/or define bilaterally the specifics of the
relationship between the QF and the utility. A contract may also limit and/or define
bilaterally the specifics of the legally enforceable obligation at the heart of that
relationship. But the obligation can pre-date the signing of the contract.

Grouse Creek Wind Park, LLC, 142 FERC ¶ 61,187, at P 40 (2013) (footnotes omitted).
This Commission has ruled that a QF may form a LEO by filing a meritorious complaint
alleging that the project was mature, and that the developer had attempted, and failed, to negotiate
a contract with the utility before locking in an avoided cost rate. A.W. Brown Co., v. Idaho Power
Co., 121 Idaho 812, 816-18, 828 P.2d 841 (1992). However, while a QF could certainly form a
LEO by successfully filing and litigating a complaint against the purchasing utility, it would be
unreasonable and thus inconsistent with amicable contract formation under the LEO rule to require
a QF to file a complaint against the purchasing utility. Requiring the filing of a complaint would

3 The Commission’s decisions have often referred to such treatment as “grandfathering”
treatment. However, as the Supreme Court has explained, “[c]onferment of grandfathered status
on qualifying facility is essentially an IPUC finding that a legally enforceable obligation to sell
power existed by a given date.” Rosebud Enterprises, 128 Idaho at 624, 917 P.2d at 781. Thus,
“grandfathering” cases are application of the LEO rule.

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be particularly unreasonable when – as is the case here – the purchasing utility itself acknowledges
the QF’s right to rates preexisting the execution of the written contract. Such a policy would
require the QF owner to forego execution of a mutually agreeable PPA containing the rates to
which both parties understood the QF to be entitled and instead litigate against the purchasing
utility – wasting Commission and party resources and delaying final resolution of the contracting
process. The Commission has approved use of preexisting rates outside the context of a complaint
on many occasions. See supra note 2.
Furthermore, FERC’s recently issued Order No. 872 reaffirmed its prior LEO precedent
quoted above and confirmed that a QF may be entitled to previously effective avoided costs before
finalization of an executed written contract. See Qualifying Facility Rates and Requirements;
Implementation Issues Under the Public Utility Regulatory Policies Act of 1978, Order No. 872,
172 FERC ¶ 61,041, at P 689 (July 16, 2020), 85 Fed. Reg. 54,638 (Sept. 2, 2020).4 FERC
specifically stated that requiring a fully executed PPA or “requiring that QFs file a formal
complaint with the state commission . . . . are not permitted[.]” Id.5

4 FERC’s new rules adopted in Order No. 872 became effective December 31, 2020, and
therefore its recitation of the LEO rule applies to Fall River’s LEO created after that date. Order
No. 872, 172 FERC ¶ 61,041, 85 Fed. Reg. 54,638, at preamble & P 753; see also id. at P 693
(stating Order No. 872’s new rules do not apply to “any executed contract or LEO between a QF
developer and utility in place as of the effective date of this final rule”).
5 FERC’s Order No. 872 also created a new “commercial viability” requirement to create a
LEO, which is intended “to prevent speculative QFs from obtaining LEOs, and the associated
burden on purchasing utilities.” Order No. 872, 172 FERC ¶ 61,041, 85 Fed. Reg. 54,638, at P
688. But FERC explained that new test does not apply to QFs already in operation, which “have
necessarily demonstrated a commitment to construct the project.” Id. at P 665 n. 995. In any
event, Fall River’s Chester Diversion Project is not in any way speculative, as it is already
operating and is ready to begin delivering to PacifiCorp shortly after approval of the PPA.

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B. Fall River Should Be Entitled to the Rates Contained in the Executed PPA Due
to Delays in the Contracting Process by PacifiCorp

PacifiCorp’s delays in the contracting process warrant use of the avoided cost rates with
the 2028 capacity deficit date, which were still in effect at the time Fall River committed to the
final PPA. The facts of this case demonstrate that but for delays in PacifiCorp’s processing of the
PPA request and edits, Fall River would have had a fully executed final PPA before the effective
date of the Commission’s order on February 9, 2021. Even so, Fall River had committed to the
terms and conditions of the final PPA well before that date. Therefore, based on the facts set forth
below, the Commission should approve the PPA as filed with the rates in effect prior to February
9, 2021.
Unlike the other regulated utilities in Idaho, PacifiCorp does not have a formal tariff
governing timelines for the negotiation process for QFs eligible for published rates. Instead,
PacifiCorp only has Schedule 38, which governs the more complex negotiation process and
indicative pricing queue for large QFs. As PacifiCorp noted when it filed its Schedule 38: “The
PURPA negotiating practices and queue management procedures contained in Schedule 38 include
contracting processes and queue management for projects that don’t qualify for published rates in
Idaho[.]” PacifiCorp’s Application, Case No. PAC-E-16-01, at 2 (Jan. 13, 2016). Schedule 38
itself states it is applicable to projects above the eligibility threshold for published rates. See
Schedule 38, at Sheet 38.3 (“APPLICATION”). However, Schedule 38 provides a useful
guidepost of the outer bounds of the timelines that PacifiCorp should certainly not exceed in
providing a much simpler PPA and published rates for a small QF, such as the Chester Diversion
Project. As explained below, PacifiCorp provided delayed responses and documents well past the
bounds of the deadlines for a reasonable response period in multiple instances.

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First, delays in PacifiCorp’s interconnection process caused several months of delay in Fall
River’s PPA request. Declaration of Bryan Case at ¶ 51. Fall River initially intended to
interconnect the Chester Diversion Project to a nearby PacifiCorp-owned power line to avoid the
complications and cost of transmitting the power to PacifiCorp, and it therefore made an
interconnection request on October 4, 2019, shortly after its initial PPA request. Id. However,
PacifiCorp was unable to supply an interconnection System Impact Study to Fall River. Id. at ¶
51 and Ex. 6 (PacifiCorp’s “Notice of Delay”). Then, PacifiCorp’s PPA negotiators refused to
supply a draft PPA solely because there was no interconnection study. Id. at ¶ 51 & Ex. 14. Thus,
PacifiCorp used its own failure to provide an interconnection study as the basis to refuse to discuss
a PPA. This delayed Fall River for several months until it determined to reconfigure its PPA
request into an off-system PPA request that will transmit power over Bonneville Power
Administration’s (“BPA”) system to PacifiCorp – essentially re-casting its initial PPA request
seven months later on May 11, 2020. Id.
It is worth noting that, as Fall River communicated to PacifiCorp, PacifiCorp’s own
interconnection delays are not a legitimate basis upon which it may stall creation of a LEO. See
id. at Ex. 7 (December 10, 2019 letter from Fall River to PacifiCorp). FERC has ruled that it is
unlawful to condition the QF’s right to commit to a PPA on completing steps in the interconnection
process because the purchasing utility controls the interconnection process: “Such a requirement
allows the utility to control whether and when a legally enforceable obligation exists – e.g., by
delaying the facilities study or by delaying the tendering by the utility to the QF of an executable
interconnection agreement.” FLS Energy, Inc., 157 FERC ¶ 61,211, P 23 (Dec. 15, 2016). As
FERC recently reconfirmed in Order No. 872, the purchasing utility may not require “completion
of a system impact study or transmission feasibility study” to form a LEO because “requiring the

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completion of a utility-controlled study places too much control over the LEO in the hands of the
utility and defeats the purpose of a LEO and is inconsistent with PURPA.” Order No. 872, 172
FERC ¶ 61,041, at PP 694-95. Thus, it was inconsistent with the LEO rule for PacifiCorp to
withhold a draft PPA on the basis that PacifiCorp had failed to supply a System Impact Study,
especially after Fall River had both requested and paid for such study. Additionally, PacifiCorp’s
Schedule 38 states the QF must sign the interconnection System Impact Study Agreement within
120 days of the Commission order approving the PPA, not before the draft PPA is even supplied.
See Schedule 38, at Sheet 38.9, ¶ 11(b). However, Fall River elected to avoid a protracted dispute
with PacifiCorp over that issue and revised its PPA request to move forward without further delay.
Second, PacifiCorp was delayed in supplying an initial pro forma PPA for evaluation. The
pro forma PPA is supposed to assist the QF in beginning its review and begin preparing comments
on the PPA form before PacifiCorp provides a project-specific draft PPA, and PacifiCorp’s
Schedule 38 states the pro forma PPA will be supplied within seven days of request. See Schedule
38, at Sheet 38.4, § B. But PacifiCorp took almost three months to supply Fall River the pro forma
PPA, causing additional delays to Fall River’s review of the form. Declaration of Bryan Case at
¶ 52. That delayed Fall River’s ability to begin evaluating and preparing Fall River’s comments
and edits to the form of PPA PacifiCorp proposed by over two months.
Third, even after Fall River revised its request to an off-system PPA request, PacifiCorp
had delayed responses to supplying a project-specific draft PPA. Schedule 38 states the draft PPA
should be supplied within 30 days of the request. See Schedule 38, at Sheet 38.8. But PacifiCorp
took 38 days, until June 18, 2020, to respond to Fall River’s revised PPA request for an off-system
PPA, which had been sent on May 11, 2020. Declaration of Bryan Case at ¶ 53.

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Fourth, during the next round of discussions, another lengthy delay occurred. Specifically,
PacifiCorp took 58 days, until September 17, 2020, to respond to Fall River’s next proposed edits
to the PPA and supply of additional PacifiCorp-requested information that Fall River had sent on
July 20, 2020. Id. at ¶ 54. Again, this 58-day period was well in excess of the 30-day maximum
response time contemplated in the large QF tariff. PacifiCorp’s lead negotiator, Kyle Moore,
acknowledged the delay in an August 26, 2020 email, stating “We apologize for our delay and will
make it up in our next response period.” Id. at ¶ 54 & Ex. 20. However, despite Mr. Moore’s
suggestion, there was no way to make up for the delays that had occurred by that point; the PPA
should have already been fully executed if expected timelines had been followed from the start.
Fifth, and finally, PacifiCorp was quite slow in wrapping up the final items to resolve in
the PPA and to get the document executed. Id. at ¶¶ 55-58. On a telephone call on October 1,
2020, Fall River and PacifiCorp representatives discussed a limited number of open items in the
PPA, including the BPA transmission losses, metering provisions, and an appropriate cure period
for any failure by Fall River to begin deliveries by the PPA’s First Delivery Date. Fall River’s
counsel followed up with a confirming email dated October 16, 2020, stating “[w]e had understood
we would hear back from PacifiCorp this week regarding a few items in the draft PPA.” Id. at Ex.
24. That email also reiterated that Fall River agreed to PacifiCorp’s proposal for use of the BPA
line losses in the PPA, and it reiterated Fall River’s request that PacifiCorp to make a reasonable
proposal for two outstanding items: (1) any required metering upgrades, and (2) the cure period
for a failure to achieve the First Delivery Date. Id. The email stated: “Other than these
clarifications, Fall River finds the draft PPA acceptable and would like to move forward with
execution as soon as possible.” Id. at Ex. 24.

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After further delay, counsel for Fall River sent additional follow-up emails. An email from
Fall River’s counsel dated November 30, 2020, stated: “It has been several weeks since we have
heard from PacifiCorp. We would like to move forward to finalizing the final outstanding issues
itemized below, so we can get the agreement executed and submitted for approval at the IPUC.”
Id. at Ex. 25. Likewise, an email from Fall River’s counsel dated December 8, 2020, noted that
PacifiCorp’s metering issue appeared to be resolved and reiterated the request that PacifiCorp
provide a proposal for a reasonable cure for a delay in achieving the First Delivery Date, as had
been requested on the parties’ telephone call on October 1, 2020. Id. at Ex. 30. Fall River’s email
again explained: “As we previously communicated, the rest of the PPA is acceptable to Fall River
and we would like to move forward with getting it finalized as soon as possible.” Id.
Ultimately, PacifiCorp did not provide its proposal for a cure for a delay achieving the First
Delivery Date with a revised PPA draft until December 11, 2020, 71 days after the parties’ phone
call on October 1, 2020, despite repeated requests that PacifiCorp accelerate the process. Id. at ¶
55 & Ex. 32. At this time, PacifiCorp was still verifying that its proposed PPA would not require
Fall River to upgrade the metering at the facility, and PacifiCorp did not provide final confirmation
on that issue under December 30, 2020. Id. at Exs. 32 & 33. The 71-day period to partially respond
with an edit to the draft PPA, coupled with a 90-day period to confirm no new metering would be
required, were well past the time Fall River expected when it proposed these reasonable
clarifications on the parties’ telephone call on October 1, 2020. Indeed, yet again during this
timeframe, PacifiCorp’s representative, Kyle Moore, apologized for PacifiCorp’s delay in an email
dated December 1, 2020, which responded to one of requests from Fall River for a response. Id.
at Ex. 26.

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Additionally, despite confirming that no new metering would be needed, PacifiCorp’s
delayed proposal for the cure period for the First Delivery Date was not reasonable or acceptable
to Fall River. PacifiCorp’s proposal unreasonably put Fall River at risk of having the rates reduced
in the PPA if the Commission did not approve it by June 1, 2021, and at risk of having the PPA
terminated altogether if the Commission did not approve it by December 31, 2021. Id. at Ex. 32,
pp. 47-48, §§ 11.1.2(a) & 11.2.4. Thus, Fall River had to make a counter proposal, which it did
by email dated January 5, 2021, containing a final PPA with final edits to the First Delivery Date
and proposed delay default provisions. Id. at Ex. 34. Fall River’s proposal reasonably tolled the
First Delivery Date and penalties for non-compliance until a reasonable period after the
Commission’s approval of the PPA, whenever that may occur. Id. at Ex. 34, at pp. 49-50, §§
11.1.2(a) & 11.2.4. In that January 5, 2021 email, Fall River also communicated that with that
final edit, the PPA was “acceptable to Fall River and we are prepared to get it executed and filed
with the PUC.” Id. at Ex. 34, at p. 1. That version of the PPA was the final PPA eventually
executed by the parties. Id. at ¶ 56.
However, PacifiCorp did not communicate its preferred process for execution of the final
PPA until an email sent by PacifiCorp’s representative, Kyle Moore, on February 11, 2021, which
sent the PPA and indicated Fall River should execute it. Id. at ¶ 57. This response time was again
in excess of the outer bounds of the expectations of 30 days after January 5, 2021. See also id. at
Exs. 35 & 37 (Fall River follow-up emails dated January 15, 2021, and February 9, 2021,
requesting confirmation on PacifiCorp’s preferred process for PPA execution). Fall River’s
general manager, Bryan Case, executed the PPA on that same date PacifiCorp sent the executable
document, February 11, 2021. Id. at ¶ 58. That PPA sent by PacifiCorp and executed by Fall
River on February 11, 2021, contained the avoided cost rates that had been in effect at the time

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that Fall River sent and expressed commitment to the final PPA on January 5, 2021. Id.
PacifiCorp’s representative, Bruce Griswold, countersigned the same PPA on February 26, 2021,
containing those same rates. Id.
As the foregoing recitation of the PPA discussions demonstrates, there were
unquestionably delays on PacifiCorp’s part in the process that justify honoring Fall River’s
commitment to the rates in effect prior to February 9, 2021, with the 2028 first deficit date. Fall
River executed the final document just two days after the date of the rate change, and there is no
question it would have done so before the date of the rate change if PacifiCorp’s cumulative delays
had not precluded it from doing so. Under the LEO rule and the Commission’s precedent set forth
above, Fall River is entitled to the rates in effect when it committed to the final PPA provisions
despite PacifiCorp’s delays prior to, and after, that time. PacifiCorp’s own representative even
apologized for delays during the PPA discussions. Additionally, PacifiCorp implicitly agreed that
Fall River should be entitled the rates included in the PPA because PacifiCorp knowingly executed
the PPA with those rates. As PacifiCorp itself explained in its Application, the PPA contains those
rates because the PPA was negotiated to fruition while those rates were in effect. Application at 4.
To deprive Fall River of those rates would be unreasonable. Accordingly, the Commission should
approve the PPA containing the rates included by the parties and submitted for approval in this
case.
CONCLUSION
For the reasons set forth above, Fall River agrees with the first two of Staff’s proposed
amendments to the PPA, which recommend correcting typographical errors with respect to the
amounts of generation estimates in Section 4.9, Exhibit A, and page 3 of the PPA, and the units
for the Maximum Delivery Rate listed in Exhibit A. However, Fall River disagrees with Staff’s

REPLY COMMENTS OF FALL RIVER RURAL ELECTRIC COOPERATIVE, INC.
PAC-E-21-06
PAGE 16
proposal that the first deficit date for avoided cost rates should be July 2029, and respectfully
requests the Commission approve the PPA containing the rates agreed to by the parties and filed
for approval by PacifiCorp with the July 2028 first deficit date.
DATED: May 25, 2021.

RICHARDSON ADAMS, PLLC

By
Gregory M. Adams (ISB No. 7454)
Richardson Adams, PLLC
515 N. 27th Street
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
[e-mail]

REPLY COMMENTS OF FALL RIVER RURAL ELECTRIC COOPERATIVE, INC.
PAC-E-21-06
PAGE 17
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 25th day of May, 2021, I delivered true and correct
copies of the foregoing Reply Comments to the following parties via electronic mail:

Jan Noriyuki
Commission Secretary
Idaho Public Utilities Commission
P.O. Box 83720
Boise, ID 83720-0074
[e-mail]

Dayn Hardie
Deputy Attorney General
Idaho Public Utilities Commission
P.O. Box 83720
Boise, ID 83720-0074
[e-mail]

Ted Weston
Idaho Regulatory Affairs Manager
Rocky Mountain Power
1407 West North Temple, Suite 330
Salt Lake City, UT 84116
[e-mail]
[e-mail]

Emily Wegener
Counsel
Rocky Mountain Power
1407 West North Temple, Suite 320
Salt Lake City, UT 84116
[e-mail]

Dated: May 25, 2021

_____________________
Gregory M. Adams (ISB No. 7454)