Troutman Pepper Hamilton Sanders LLP
`401 9th Street, N. W., Suite 1000
`Washington, D.C. 20004-2134
`
`troutman.com
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`Fredrick Wilson
`fredrick.wilson@troutman.com
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`March 28, 2024
`The Honorable Debbie-Anne Reese, Secretary
`Federal Energy Regulatory Commission,
`888 First Street, NE
`Washington, DC 20426
`
`RE: Tri-State Generation and Transmission Association, Inc.,
`Docket No. ER21-2818-000, et al.
`Copy of Petition for Review
`Dear Secretary Reese,
`
`Please find attached a copy of the Petition for Review filed in the United States Court of
`Appeals for the Tenth Circuit on Thursday, March 28, 2024. This Petition for Review was filed i
`n response to the Federal Energy Regulatory Commission’s December 19, 2023, Order on Initial
`Decision and February 20, 2024, Notice of Denial of Rehearing by Operation of Law and
`Providing Further Consideration.1 A copy of this Petition for Review is attached to this letter as
`Attachment A.
`
`
`Respectfully submitted,
`
`/s/ Fredrick Wilson
`Fredrick Wilson
`Russell Kooistra
`Antonia M. Douglas
`TROUTMAN PEPPER HAMILTON
`SANDERS LLP
`401 9th Street, NW, Suite 1000
`Washington, DC 20004
`(202) 274-2813
`fredrick.wilson@troutman.com
`russell.kooistra@troutman.com
`antonia.douglas@troutman.com
`
`Date: March 28, 2024
`
`
`1
`Tri-State Generation and Transmission, Inc., Order on Initial Decision, 185 FERC ¶ 61,201 (Dec. 19,
`2023); Tri-State Generation and Transmission, Inc., Notice of Denial of Rehearing by Operation of Law and
`Providing for Further Consideration, 186 FERC ¶ 62,071 (Feb. 20, 2024).
`
`

`

`CERTIFICATE OF SERVICE
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`I hereby certify that on this 21st day of March 2024, I have served a copy of the Petition
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`for Review on the official service lists compiled by the Office of the Secretary for the applicable
`above-referenced proceedings.
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`/s/ Daryl A. Bascus
`Daryl A. Bascus
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`ATTACHMENT A
`ATTACHMENT A
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`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE TENTH CIRCUIT
`
`Case No. ______
`
`TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC.,
`PETITIONER,
`v.
`FEDERAL ENERGY REGULATORY COMMISSION,
`RESPONDENT.
`
`
`
`
`
`
`
`PETITION FOR REVIEW
`
`
`
`Pursuant to Section 313(b) of the Federal Power Act, 16 U.S.C.
`
`§ 825l(b), Rule 15(a) of the Federal Rules of Appellate Procedure, and
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`Circuit Rule 15 of this Court, Tri-State Generation and Transmission
`
`Association, Inc. (“Tri-State” or “Petitioner”) respectfully petitions this
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`Court for review of the following orders of the Federal Energy Regulatory
`
`Commission (“FERC” or “Commission”):
`
` Tri-State Generation and Transmission Association, Inc.,
`Docket Nos. ER21-2818 et al., Order on Initial Decision, 185
`FERC ¶ 61,201 (2023) (December 19, 2023) (“December 19
`Order”).
` Tri-State Generation and Transmission Association, Inc.,
`Docket Nos. ER21-2818 et al., Notice of Denial of Rehearing
`by Operation of Law and Providing for Further
`Consideration, 186 FERC ¶ 62,071 (February 20, 2024)
`(“February 20 Order”).
`
`

`

`
`Petitioner has attached copies of both the December 19 Order and
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`the February 20 Order to this Petition as Attachments A and B,
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`respectively.
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`The December 19 and February 20 Orders address Tri-State’s filing
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`to revise its Rate Schedule No. 281, which sets forth the terms and
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`conditions under which Tri-State’s members may terminate their
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`Wholesale Electric Service Contract and membership in Tri-State. Tri-
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`State filed a timely request for rehearing of the December 19 Order, and
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`the February 20 Order notified parties that Tri-State’s request for
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`rehearing was denied by operation of law on February 20, 2024.*
`
`This Petition is timely filed within 60 days of the February 20 Order
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`in accordance with 16 U.S.C. § 825l(b). This Court has subject matter
`
`jurisdiction under 16 U.S.C. § 825l(b). Venue is proper under 16 U.S.C.
`
`§ 825l(b). Also attached to this Petition are: (1) the Corporate Disclosure
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`Statement required by Rule 26.1 of the Federal Rules of Appellate
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`Procedure and Circuit Rule 26.1 (Attachment C); and (2) a Certificate of
`
`
`* Request for Rehearing of Tri-State Generation and Transmission
`Association, Inc., Docket No. ER21-2818-000 et al. (January 18, 2024)
`(available
`https://elibrary.ferc.gov/eLibrary/filelist?accession_
`at
`number=20240118-5212&optimized=false).
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`- 2 -
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`Service, which is the list of parties to the underlying proceedings
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`(Attachment D).
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`- 3 -
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`

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`Dated: March 28, 2024
`
`
`
`FREDRICK WILSON
`RUSSELL KOOISTRA
`ANTONIA M. DOUGLAS
`TROUTMAN PEPPER
`HAMILTON SANDERS LLP
`401 9th Street NW, Suite 1000
`Washington, DC 20004
`(202) 274-2813
`fredrick.wilson@troutman.com
`russell.kooistra@troutman.com
`antonia.douglas@troutman.com
`
`
`Respectfully Submitted,
`
`/s/ Misha Tseytlin
`MISHA TSEYTLIN
`Counsel of Record
`KAITLIN L. O’DONNELL
`TROUTMAN PEPPER
`HAMILTON SANDERS LLP
`227 W. Monroe Street
`Suite 3900
`Chicago, IL 60606
`(608) 999-1240 (MT)
`(312) 759-1939 (fax)
`misha.tseytlin@troutman.com
`kaitlin.o’donnell@troutman.com
`
`Attorneys for Petitioner
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`- 4 -
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`ATTACHMENT A
`ATTACHMENT A
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`

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`185 FERC ¶ 61,201
`UNITED STATES OF AMERICA
`FEDERAL ENERGY REGULATORY COMMISSION
`
`Before Commissioners: Willie L. Phillips, Acting Chairman;
` Allison Clements, and Mark C. Christie.
`
`Tri-State Generation and Transmission Association, Inc.
`
`Docket Nos. ER21-2818-000
`EL22-4-000
`
`(consolidated)
`
`EL21-75-000
`
`EL21-53-000
`
`(unconsolidated)
`
`Wheat Belt Public Power District
`La Plata Electric Association, Inc.
`Northwest Rural Public Power District
`San Isabel Electric Association, Inc.
`San Miguel Power Association
`Springer Electric Cooperative, Inc.
`United Power, Inc.
`
` v.
`
`Tri-State Generation and Transmission Association, Inc.
`
`ORDER ON INITIAL DECISION
`
`(Issued December 19, 2023)
`
`This case is before the Commission on exceptions to an Initial Decision issued on
`September 29, 2022.1 The Initial Decision addresses the contract termination payment
`(CTP) and procedures for members exiting from Tri-State Generation and Transmission
`Association, Inc. (Tri-State). At the hearing, the parties proposed several different
`methodologies for calculating the CTP. Notably, Tri-State proposed a methodology
`
`1 Tri-State Generation & Transmission Ass’n, 180 FERC ¶ 63,034 (2022) (Initial
`Decision).
`
`

`

`Docket No. ER21-2818-000, et al.
`
`- 2 -
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`based on a lost revenues approach (Modified CTP Methodology); Indicated Tri-State
`Members (Indicated Members)2 proposed adjustments to the Modified CTP Methodology
`(Adjusted Modified CTP Methodology); United Power, Inc. (United Power) proposed a
`Balance Sheet Approach (BSA) methodology; and Trial Staff proposed a modified
`version of the BSA (Modified BSA). The Initial Decision adopted Trial Staff’s Modified
`BSA with limited modifications.3 In this order, we affirm in part, reverse in part, modify
`in part, and clarify in part the Initial Decision, and adopt a version of the Modified BSA
`with further modifications (Adopted BSA), as discussed below. We also direct Tri-State
`to submit a compliance filing within 30 days of the date of this order, as discussed below.
`Finally, we terminate Docket Nos. EL21-53-000 and EL21-75-000, as discussed below.
`
`I.
`
`Background
`
`A.
`
`Tri-State
`
`Tri-State is a wholesale generation and transmission (G&T) cooperative that
`provides wholesale power and transmission services to its 42 utility members in
`Colorado, Nebraska, New Mexico, and Wyoming at cost-based rates pursuant to
`long-term, all-requirements Wholesale Electric Service Contracts (WESC). Each of
`Tri-State’s 42 utility members occupies one seat on the Tri-State Board of Directors
`(Board). Tri-State’s utility members are currently obligated to purchase all of their
`electric service requirements, other than up to five percent under a self-supply option and
`established thresholds for community solar projects, from Tri-State through 2050.4
`
`B.
`
`CTP Proceedings
`
`On June 17, 2021, the Commission initiated a show cause proceeding in Docket
`No. EL21-75-000, pursuant to Federal Power Act (FPA) section 206,5 directing Tri-State
`
`2 Indicated Members are: K.C. Electric Association, Inc.; Highline Electric
`Association; Morgan County Rural Electric Association; Poudre Valley Rural Electric
`Association, Inc.; and Southeast Colorado Power Association.
`
`3 Due to the limited nature of the modifications and the conventions of some of the
`parties, we also refer to the methodology adopted by the Initial Decision as the Modified
`BSA.
`
`4 Tri-State Generation & Transmission Ass’n, 170 FERC ¶ 61,221, order on reh’g,
`172 FERC ¶ 61,180 (2020). For a more detailed background of Tri-State and these
`proceedings, see Tri-State Generation & Transmission Ass’n, 177 FERC ¶ 61,059, at § I
`(2021) (Hearing Order).
`
`5 16 U.S.C. § 824e.
`
`

`

`Docket No. ER21-2818-000, et al.
`
`- 3 -
`
`to demonstrate that its tariff is just and reasonable and not unduly discriminatory or
`preferential absent clear procedures for Tri-State’s utility members to obtain CTP
`calculations or to propose a replacement rate.6 On September 1, 2021, Tri-State
`submitted in Docket No. ER21-2818-000, pursuant to FPA section 205,7 revisions to its
`Rate Schedule No. 281, which sets forth the terms and conditions under which utility
`members may terminate their WESCs and membership in Tri-State. The proposed
`revisions included Tri-State’s Modified CTP Methodology for calculating a withdrawing
`member’s CTP amount.8 Under Tri-State’s proposed Modified CTP Methodology,
`Tri-State would calculate a withdrawing member’s CTP using the higher of a lost
`revenues approach (LRA)9 or a debt covenant obligations (DCO) approach.10 On
`October 29, 2021, the Commission accepted and suspended Tri-State’s proposed tariff
`revisions, instituted a proceeding pursuant to FPA section 206 in Docket No.
`EL22-4-000, and established hearing and settlement judge procedures.11 In the Hearing
`Order, the Commission noted that it had significant concerns with Tri-State’s proposed
`LRA methodology and instead directed the hearing to focus on whether a methodology
`based on Tri-State’s DCO or United Power’s BSA is appropriate.12
`
`II.
`
`Initial Decision and Subsequent Proceedings
`
`After hearing procedures, on September 29, 2022, the Presiding Judge issued the
`Initial Decision, which addressed four general issues: (1) whether Tri-State’s Modified
`CTP Methodology is just and reasonable; (2) whether Indicated Members’ Adjusted
`
`6 Tri-State Generation & Transmission Ass’n, 175 FERC ¶ 61,229 (2021) (Order
`to Show Cause). This order terminates the show cause proceeding.
`
`7 16 U.S.C. § 824d.
`
`8 The methodology proposed in this docket was a modification of a previous CTP
`methodology that Tri-State submitted in Docket No. ER20-1559-000.
`
`9 Described simply, the LRA methodology estimated the amount of revenue
`Tri-State would collect over the remaining life of a member’s WESC based on the
`previous three years’ member billings and subtracting from the total revenue the amount
`which Tri-State predicted it would be able to earn via remarketing.
`
`10 Tri-State described the DCO as the withdrawing utility member’s pro rata share
`of Tri-State’s total debt and other obligations.
`
`11 Hearing Order, 177 FERC ¶ 61,059 at PP 119-120.
`
`12 The Commission also found that other potential approaches were within the
`scope of the proceeding. Id. PP 122-125 & n.143.
`
`

`

`Docket No. ER21-2818-000, et al.
`
`- 4 -
`
`Modified CTP Methodology is just and reasonable; (3) whether United Power’s BSA is
`just and reasonable; and (4) whether Trial Staff’s Modified BSA is just and reasonable.
`The Presiding Judge determined that Tri-State, Indicated Members, and United Power
`failed to demonstrate that their proposals were just and reasonable, but that Trial Staff’s
`Modified BSA was shown to be just and reasonable with limited modifications.13
`
`We address the Presiding Judge’s findings in the Initial Decision and the issues
`raised by the briefs on and opposing exceptions below. Briefs on exceptions were filed
`by: Wyoming Cooperatives;14 Wyoming Public Service Commission (Wyoming
`Commission); Wheat Belt Public Power District (Wheat Belt); Tipmont Rural Electric
`Membership (Tipmont); Guzman Energy LLC (Guzman); Indicated Members; United
`Power; and Tri-State. Briefs opposing exceptions were filed by: Wyoming
`Cooperatives; United Power; Guzman; Tri-State; Indicated Members; Trial Staff; and
`Northwest Rural Public Power District (Northwest Rural).
`
`III. Discussion
`
`A.
`
`Procedural Matters
`
`On November 14, 2022, Tri-State and certain Tri-State members15 filed a joint
`motion to strike and request for expedited action. On February 24, 2023, Tri-State filed a
`motion to lodge (First Motion to Lodge) the United States District Court for the District
`of North Dakota’s October 31, 2022 order granting Tri-State’s motion to dismiss in Basin
`Electric Power Cooperative v. Tri-State Generation & Transmission Ass’n.16 On April 7,
`
`
`13 Initial Decision, 180 FERC ¶ 63,034 at PP 101, 103.
`
`14 Wyoming Cooperatives are: Big Horn Rural Electric Company; Carbon Power
`& Light, Inc.; Garland Light & Power Co.; High Plains Power, Inc. High West Energy;
`Niobrara Electric Association; Wheatland Rural Electric Association; and Wyrulec
`Company.
`
`15 Central New Mexico Electric Cooperative; Columbus Electric Cooperative;
`Continental Divide Electric Cooperative, Inc.; Gunnison County Electric Association,
`Inc.; Highline Electric Association; K.C. Electric Association, Inc.; Mora-San Miguel
`Electric Cooperative; Morgan County Rural Electric Association; Otero County Electric
`Cooperative, Inc.; Poudre Valley Rural Electric Association; Sierra Electric Cooperative;
`Southeast Colorado Power Association; Southwestern Electric Cooperative; Springer
`Electric Cooperative, Inc.; and White River Electric Association, Inc.
`
`16 Case No. 3:21-CV-220, 2022 WL 18622225 (D.N.D. Oct. 31, 2022) (Basin
`Order).
`
`

`

`Docket No. ER21-2818-000, et al.
`
`- 5 -
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`2023, Tri-State filed a motion to lodge (Second Motion to Lodge) a letter from Western
`Area Power Administration (WAPA) to United Power, dated February 10, 2023 (WAPA
`Letter). On May 9, 2023, Tri-State filed a supplemental motion to lodge (Supplemental
`Motion to Lodge) recent federal electric service contracts between WAPA and Tri-State.
`As discussed below, we grant in part the motion to strike, find Tri-State’s First Motion to
`Lodge unnecessary, and grant Tri-State’s Second Motion to Lodge and its Supplemental
`Motion to Lodge.
`
`Aside from the briefs on and opposing exceptions, which are summarized below,
`several other filings were submitted in this proceeding after the Initial Decision was
`issued. On June 16, 2023, five Members of Congress jointly filed comments urging the
`Commission to consider the unique relationship between rural distribution cooperatives
`and their G&T, the purpose of G&Ts, the critical value they provide, and the potential for
`cost shifts and rate increases to remaining members.17 On June 23, 2023, United Power
`filed a request to disregard the comments by Members of Congress as untimely,
`procedurally improper, and irrelevant to the determination of a just and reasonable exit
`charge.18 On July 13, 2023, United States Congressman Ken Buck filed comments
`arguing against cost shifts to remaining members. On August 22 and September 20,
`2023, respectively, United Power and Mountain Parks Electric, Inc. each submitted a
`letter to the Commission requesting an order on Initial Decision be issued expeditiously.
`On August 25, 2023, San Isabel Electric Association, Inc. submitted a letter asking the
`Commission to disregard any request for expedition.
`
`1.
`
`Motion to Strike
`
`Tri-State states that it seeks to strike the sections of United Power’s brief on
`exceptions that rely on extra-record materials that are either unduly prejudicial to the
`other parties or relate to subject matter that the Presiding Judge expressly excluded from
`the hearing.19
`
`First, Tri-State asserts that Appendix A and Appendix B (collectively,
`Appendices) to United Power’s brief, and any references thereto, should be struck from
`United Power’s brief because they are not part of the official record. Tri-State states that
`Appendix A is a modified version of the BSA that United Power submitted at hearing as
`Exhibit No. UP-0021. Tri-State argues that Appendix A constitutes new material because
`
`
`17 Congressional Comments at 1.
`
`18 United Power Request to Disregard Congressional Comments at 1-2.
`
`19 Tri-State Motion to Strike at 3-4 (chart describing material to be stricken); id.,
`attach. A (redline version of United Power’s brief with Tri-State’s proposed changes).
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`

`

`Docket No. ER21-2818-000, et al.
`
`- 6 -
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`it (1) relies on 2021 rather than 2020 data; (2) updates the assignment of members to the
`Eastern and Western Interconnections; and (3) provides an “input vector” for any further
`updates. Tri-State maintains that, even assuming these modifications amounted to
`refreshing data inputs, the parties were improperly denied an opportunity to review these
`materials.20
`
`Next, Tri-State seeks to strike Appendix B, United Power’s spreadsheet that
`calculates the BSA incorporating the four alterations endorsed in the Initial Decision, as
`extra-record evidence. Tri-State argues that Appendix B contains United Power’s
`substantive opinion on how the Initial Decision should be interpreted and applied.21
`Tri-State further contends that the record evidence does not support United Power’s
`proposed methodology to account for transmission service in the CTP calculation, and
`United Power’s discussion of this proposal is akin to new expert testimony.22
`
`Additionally, Tri-State asserts that United Power’s brief improperly includes a
`citation to testimony that Tri-State filed in an unrelated proceeding in Docket No.
`ER20-2441-000, et al. involving Basin Electric Power Cooperative (Basin Electric) that
`the Presiding Judge already determined to be outside the scope of this proceeding.23
`Tri-State maintains that United Power has not demonstrated good cause to reopen the
`record to consider this unrelated proceeding.24 Lastly, Tri-State seeks to strike any
`portion of United Power’s brief that exceeds the 100-page limit contained in Rule
`711(a)(2) of the Commission’s Rules of Practice and Procedure25 for briefs opposing
`exceptions.26
`
`a.
`
`Guzman’s Answer
`
`On November 16, 2022, Guzman filed an answer in opposition to the motion to
`strike. Guzman argues that the Commission has permitted performing calculations in
`
`
`20 Id. at 6-7.
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`21 Id. at 8.
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`22 Id. at 9 (citing United Power Br. on Exceptions 64-70).
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`23 Id. at 10.
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`24 Id. at 11-12.
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`25 18 C.F.R § 385.711(a)(2) (2022).
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`26 Tri-State Motion to Strike at 12-14.
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`

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`Docket No. ER21-2818-000, et al.
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`- 7 -
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`briefs on numbers that are part of the record evidence.27 Guzman asserts that Tri-State’s
`arguments regarding page limits and the Appendices are unsupported by Commission
`precedent.28
`
`b.
`
`United Power’s Answer
`
`United Power filed an answer arguing that Tri-State fails to meet the high burden
`to strike Appendices A and B in United Power’s brief on exceptions.29 According to
`United Power, Tri-State’s motion attempts to sidestep Commission precedent that permits
`parties to analyze record data, especially in cases where an Initial Decision adopts a new
`remedy distinct from any proposed during the hearing process.30
`
`United Power explains that the Appendices provide, as examples, two forms of the
`BSA calculation discussed in its brief.31 First, United Power states that Appendix A
`contains United Power’s BSA with three fully described adjustments: (1) the formula
`rate is populated with Tri-State’s 2021 Form 10-K, rather than its 2020 Form 10-K, to use
`updated figures from the most recent public data; (2) it adjusts for member allocations
`between the Eastern and Western Interconnections, including members with split loads,
`which United Power described in rebuttal testimony; and (3) it incorporates an input
`vector, which is an input mechanism that allows the user to input values that would
`otherwise be hardwired. Second, United Power states that Appendix B applies the Initial
`Decision’s four adjustments to United Power’s BSA.32 United Power maintains that the
`
`
`27 Guzman Answer at 2-3.
`
`28 Id. (citing AES Ocean Express LLC v. Fla. Gas Transmission Co., Opinion
`No. 495, 119 FERC ¶ 61,075, at PP 244-249 (2007), vacated on other grounds, Fla. Gas
`Transmission Co. v. FERC, 604 F.3d 636 (D.C. Cir. 2010); Entergy Servs., Inc.,
`105 FERC ¶ 61,319 (2003); Ky. Utilities Co., 24 FERC ¶ 61,158, at 61,364-665 (1983);
`Kern River Gas Transmission Co., Docket No. RP04-274-000 (Feb. 28, 2006) (order by
`administrative judge)).
`
`29 United Power Answer at 2-3.
`
`30 Id. at 3.
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`31 Id. at 4.
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`32 Id. at 4-6.
`
`

`

`Docket No. ER21-2818-000, et al.
`
`- 8 -
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`Appendices, as well as the various portions of United Power’s brief that Tri-State seeks
`to strike, are transparent calculations and descriptions populated with record data.33
`
`Furthermore, United Power asserts that the Appendices and the calculation of the
`transmission revenues credit endorsed by the Initial Decision rely entirely on the hearing
`record and publicly available sources.34 United Power also maintains that the
`Appendices do not raise questions of due process because they are formula rate templates
`for the Commission to review, adopt, and direct Tri-State to file on compliance using the
`appropriate data sets ordered by the Commission.35
`
`Moreover, United Power asserts that while parties may not introduce new
`proprietary factual data in post-hearing briefs, the Commission has denied motions to
`strike a technical appendix where, as here, an appendix contains new calculations using
`data derived from record sources and the Presiding Judge created a remedy not discussed
`at hearing.36 To the extent that Appendix B references transmission cost information
`found in Tri-State’s publicly filed Open Access Transmission Tariff (OATT) workpapers,
`United Power argues that Commission precedent similarly allows the use of this type of
`publicly available data in briefs on exceptions.37 United Power highlights Tri-State’s
`own conduct, noting that many of the movants joined Indicated Members’ initial brief,
`which also took data from the evidentiary record, performed new calculations with the
`data, and submitted the results as a technical appendix to a brief, albeit without providing
`underlying workpapers.38
`
`Next, United Power supports its citation to another Commission docket by
`maintaining that the Presiding Judge never ruled that any references to documents from
`Docket No. ER20-2441-000 are prohibited.39 Lastly, United Power argues that its
`91-page brief complies with Commission precedent because the page calculation is based
`
`
`33 Id.
`
`34 Id. at 6-7.
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`35 Id. at 7-9.
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`36 Id. at 9-12.
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`37 Id. at 13.
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`38 Id. at 13-15.
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`39 Id. at 16-19.
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`

`

`Docket No. ER21-2818-000, et al.
`
`- 9 -
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`on the text of the brief alone.40 In the alternative, United Power requests waiver of any
`Commission rules, as necessary.41
`
`c.
`
`Northwest Rural’s Answer
`
`In its answer in opposition to the motion to strike, Northwest Rural argues that the
`Appendices are not extra-record evidence because the BSA was set forth in United
`Power’s Exhibit No. UP-0021, the BSA was the subject of discovery and cross-
`examination, and the calculations are based on information already in the record.42
`
`d.
`
`Tri-State’s Answer
`
`In its motion for leave to answer and answer to United Power’s answer, Tri-State:
`maintains that the Commission has granted a motion to strike a portion of a brief on
`exceptions;43 again argues that Appendix B is extra-record material that contains
`calculations derived by expert witnesses after the close of the record;44 and reiterates its
`argument that the Commission should strike any references to expert testimony from
`Docket No. ER20-2441.45
`
`Furthermore, Tri-State argues that United Power misconstrues Commission
`precedent that prohibits the submission of extra-record materials in a post-hearing brief.
`Among other things, Tri-State disputes United Power’s contention that the Commission’s
`rules only preclude the introduction of new “proprietary factual data” in post-hearing
`briefs.46 Tri-State also argues that though the Commission has accepted a non-compliant
`appendix where no party objected, this precedent does not give United Power license to
`
`
`40 Id. at 19-20.
`
`41 Id. at 20.
`
`42 Northwest Rural November 29, 2022 Answer at 2.
`
`43 Tri-State December 14, 2020 Answer at 4-7 (citing Ariz. Pub. Serv. Co.,
`25 FERC ¶ 61,092, at 61,310 (1983); Trans Alaska Pipeline Sys., 55 FERC ¶ 63,036, at
`65,207-08 (1991); Tex. E. Transmission Corp., 39 FERC ¶ 63,036, at 65,204 (1987)).
`
`44 Id. at 7-9.
`
`45 Id. at 9-10.
`
`46 Id. at 11-12 (citing Off. of Consumers’ Couns. v. FERC, 783 F.2d 206 (D.C. Cir.
`1986); United Power Answer at 9-10).
`
`

`

`Docket No. ER21-2818-000, et al.
`
`- 10 -
`
`ignore the Commission’s page limitation rules.47 Tri-State contends that, unlike cases
`where the presiding judge specifically ordered certain parties to file workpapers with
`their briefs, no such instruction occurred here.48 Tri-State contends that the other cases
`cited by United Power did not permit the parties to introduce expert testimony in support
`of new legal theories or technical proposals, or the types of technical calculations in the
`Appendices.49 Lastly, Tri-State argues United Power has not demonstrated good cause
`for waiver of the Commission’s rules.50
`
`e.
`
`United Power’s Request to Reject Tri-State’s Answer
`
`On December 16, 2022, United Power filed a request to reject Tri-State’s motion
`for leave to answer and answer, arguing that Tri-State’s answer is an unhelpful rehash of
`earlier arguments.51 United Power also notes that Tri-State does not dispute the validity
`of the arithmetic contained within the Appendices or show that the underlying data is
`absent from the evidentiary record or publicly available sources.52
`
`f.
`
`Commission Determination
`
`Rule 213(a)(2) of the Commission’s Rules of Practice and Procedure, 18 C.F.R.
`§ 385.213(a)(2) (2022), prohibits an answer to an answer unless otherwise ordered by the
`decisional authority. We accept Tri-State’s answer because it has provided information
`that assisted us in our decision-making process.
`
`In general, motions to strike are not favored by the Commission, and the
`Commission imposes a heavy burden on the movant.53 The Commission has stated that
`“allegedly objectionable material will not be struck unless the matters sought to be
`
`47 Id. at 13-14 (citing Consumers Energy Co., 153 FERC ¶ 61,185 (2015)).
`
`48 Id. at 14.
`
`49 Id. at 15-16 (citing La. Pub. Serv. Comm’n v. Entergy Services, Inc., Opinion
`No. 480, 111 FERC ¶ 61,311, at PP 185-187 (2005); Entergy Servs., Inc., 105 FERC
`¶ 61,319 at P 45; Ky. Utils. Co., 24 FERC at 61,364-65).
`
`50 Id. at 16-19.
`
`51 United Power Request to Reject Answer at 1-2.
`
`52 Id. at 3-4.
`
`53 La. Pub. Serv. Comm’n v. Entergy Servs. Inc., 163 FERC ¶ 61,117, at P 74
`(2018) (citing Power Mining, Inc., 45 FERC ¶ 61,311, at 61,972 n.1 (1988)).
`
`

`

`Docket No. ER21-2818-000, et al.
`
`- 11 -
`
`omitted have no possible relationship to the controversy, or may confuse the issue, or
`otherwise prejudice a party.”54 Arguments raised in a brief, as distinct from evidence, are
`not generally the proper subject of a motion to strike.55 However, the Commission
`should not rely on new evidence presented in a post-hearing pleading without giving
`other parties an opportunity to respond.56
`
`Here, Tri-State seeks to strike Appendix A, which makes three new adjustments to
`the United Power’s BSA. Specifically, United Power: (1) populates the BSA formula for
`calculating the CTP with data from Tri-State’s 2021 Form 10-K; (2) adjusts for member
`allocations between the Eastern and Western Interconnections; and (3) incorporates an
`input mechanism that allows the user to input new values into the BSA formula in the
`event of any further updates. Tri-State also seeks to strike Appendix B, which is a
`spreadsheet that relies on data from Tri-State’s 2021 Form 10-K and Tri-State’s publicly
`filed Eastern and Western OATT workpapers to calculate the Initial Decision’s
`transmission credit proposal.
`
`We find good cause to grant the motion to strike with respect to the Appendices
`because they include new evidence and it would be prejudicial to the other participants in
`the proceeding. In Appendix A, United Power proposes to alter the BSA formula in
`Exhibit No. UP-0021 by updating the assignment of members to the Eastern and Western
`Interconnection and adding an input mechanism/vector for any further updates.
`Appendix B calculates the BSA with alterations endorsed by the Initial Decision. We
`find that allowing United Power to advance new data and unexamined BSA approaches
`for the first time in its brief on exceptions based on extra-record evidence is unduly
`prejudicial to the other parties in this case and disruptive to the final adjudication of this
`proceeding.57 Even though United Power populates the Appendices with data that is
`publicly available or traceable to record evidence, other parties were not given an
`
`
`54 Bos. Edison Co., 61 FERC ¶ 61,026, at 61,148 n.114 (1992).
`
`55 Id. n.115.
`
`56 Nw. Pipeline Corp., 92 FERC ¶ 61,287, at 62,014-15 (2000) (granting motion to
`strike appendices of brief on exceptions that contained “new material”) (citing Off. of
`Consumers’ Couns. v. FERC, 783 F.2d at 232 (“In relying on ex parte submissions
`appearing in a post-hearing brief, the Commission violated fundamental canons of due
`process.”)).
`
`57 We do, however, disagree with Tri-State’s assertion that Appendix A relies on
`non-record data from 2021. Tri-State’s 2021 Form 10-K was entered into the record as
`Exhibit No. UP-0120.
`
`

`

`Docket No. ER21-2818-000, et al.
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`- 12 -
`
`opportunity to respond to the precise form of the calculations before the close of the
`record or to probe the Appendices through cross-examination.58
`
`Although the Commission has denied a motion to strike where all of the numbers
`in challenged appendices were part of the record because “simply performing certain
`calculations with those numbers does not constitute new evidence,59 the Appendices here
`rely on new data inputs, formulations, and substantive analysis not previously part of the
`record. Moreover, we are not persuaded by United Power’s reliance on Louisiana Public
`Service Commission, where the Commission denied a motion to strike appendices
`attached to a brief on exceptions because the presiding judge created a remedy that was
`not discussed at hearing and, therefore, it was “not inappropriate for parties to reexamine
`data from the hearing in light of the presiding judge’s remedy.” 60 Here, by contrast,
`United Power seeks to introduce new theories and technical proposals, namely a modified
`BSA formula that included new components and a new methodology for calculating
`transmission service credits.
`
`However, we find that Tri-State has not shown good cause to strike United
`Power’s citation to Docket No. ER20-2441 because Tri-State has not demonstrated that
`the inclusion of the citation prejudices Tri-State. Moreover, the Commission may
`disregard citations that are not relevant to its determination.
`
`The Commission also finds that United Power’s brief complies with the
`requirements of Rule 711.61 The text of the brief without the Appendices does not exceed
`the 100-page limit and we therefore deny Tri-State’s motion to strike on this matter.62
`
`
`58 Ariz. Pub. Serv. Co., 25 FERC at 61,310 (granting motion to strike because
`while “the calculations may have been derived from various parts of the rec