Deepwater responds to Toray objection

Tue, 10/25/2011 - 1:45pm
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Deepwater Wind filed a response to Toray Plastic’s objection of a waiver of a sunset clause in the Power Purchase Agreement between Deepwater and National Grid, which may have caused the contract to expire at the end of June.

In the response Deepwater lays out reasons why the Public Utilities Commission should affirm the waiver; however, it does not address one of Toray’s main arguments — that the waiver provision in the contract expired when the PPA did.

Deepwater argues that the waiver of the sunset clause is “reasonable and prudent” and as such should be approved by the PUC. It further states that Toray does not provide any reasons why such a waiver wouldn’t be reasonable and characterizes its objection as “hyper-technical.”

“That mutual decision to waive the putative deadline to obtain Regulatory Approval is entirely reasonable and consistent with the General Assembly’s stated goals,” Deepwater attorney Joseph Keough Jr. writes. “Toray offers no arguments to the contrary.”

Toray’s argument stated that only certain provisions in the contract remain in effect after the contract reached the June 30 termination date. The waiver provision was not one of the clauses listed that would still be applicable.

Deepwater dismissed the argument put forward by Toray that it no longer had the authority to do business in Rhode Island. Deepwater explained that a clerical error caused the company to lose that right; however, it corrected the error on October 11, which applied retroactively back to the date it lost its Certificate of Organization/Registration.

The company also argued that the commission should deny Toray’s request for a hearing on the matter. It cites the commission’s own rules, which allow it to resolve motions without taking testimony and said that a hearing was not needed because the “underlying facts are few and self-evident.”

Deepwater further argues that the commission has the authority to approve the waiver, which Toray argued it did not, and that the docket it would fall under could be reopened, which Toray argued it could not.

In conclusion, Deepwater restated its request that the commission affirm the waiver of the sunset clause and that the PPA remains a valid contract. The objection also admonishes Toray for acting in its own interests against the state legislature’s stated goals.

“Toray renews its quest by objecting to the parties’ legitimate, lawful and prudent action,” Keough writes. “The commission should reject Toray’s latest effort to advance its own perceived self-interest at the expense of the State’s interests.”