LEGAL | LEGAL Other than as disclosed below, we do not expect any litigation or proceeding pending or threatened against us to have a potential material effect on our financial condition, results of operations or cash flows. CTP Proceeding: Pursuant to our Bylaws, a Member may only withdraw from membership in us upon compliance with such equitable terms and conditions as our Board may prescribe provided, however, that no Member shall be permitted to withdraw until it has met all its contractual obligations to us. On September 1, 2021, we filed with FERC a modified contract termination payment methodology tariff as Rate Schedule 281 that provides a process should a Utility Member elect to withdraw from membership in us and terminate its wholesale electric service contract. The tariff process includes requirements for a two-year notice and the payment to us of a contract termination payment. On October 29, 2021, FERC accepted our modified contract termination payment methodology, effective November 1, 2021, subject to refund. FERC set the matter for hearing and instituted a concurrent Federal Power Act ("FPA") section 206 proceeding to determine the justness and reasonableness of our modified methodology. On April 29, 2022, both United Power and Northwest Rural Public Power District ("NRPPD") provided us notices to withdraw from membership in us, with a May 1, 2024 withdrawal effective date. On December 19, 2023, FERC issued an order adopting a modified balance sheet approach for the contract termination payment methodology (" FERC December 19 Order") . On January 18, 2024, we, United Power, and others filed requests for rehearing with FERC of the FERC December 19 Order . Our request for rehearing included FERC's rejection of our lost revenue approach and also certain clarifications. On February 20, 2024, FERC issued a notice stating the parties' requests for rehearing were denied by operation of law, but FERC stated it will address the merits of the requests in a subsequent order. On March 28, 2024, we filed a petition for review of the FERC December 19 Order with the United States Court of Appeals for the Tenth Circuit (" 10th Circuit Court of Appeals"), Case No. 24-9516 . On April 8, 2024, United Power filed a petition for review of the FERC December 19 Order with the United States Court of Appeals for the District of Columbia Circuit (" DC Circuit Court of Appeals"), Case No. 24-1081. United Power, Mountain Parks Electric, Inc. ("MPEI"), NRPPD, Basin Electric Power Cooperative ("Basin"), and La Plata Electric Association, Inc. ("LPEA") have filed notices of interventions in our petition for review with the 10th Circuit Court of Appeals. On May 2, 2024, FERC filed with the DC Circuit Court of Appeals a motion to transfer United Power's petition for review filed in the DC Circuit Court of Appeals to the 10th Circuit Court of Appeals. On May 14, 2024, the DC Circuit Court of Appeals granted a motion to transfer United Power’s petition to the 10th Circuit Court of Appeals, Case No. 24-9532. On May 23, 2024, FERC issued a substantive order on rehearing, which modifies the discussion in, but sustains the results of, the FERC December 19 Order (“May 23 Order”). On May 31, 2024, we filed a petition for review of the May 23 Order, Case No. 24-9538, with the 10th Circuit Court of Appeals. On June 3, 2024, the 10th Circuit Court of Appeals issued an order partially consolidating Case No. 24-9538 with Case Nos. 24-9516 and 24-9532 for purposes of briefing. Briefing is scheduled to begin in October 2024. On July 2, 2024, United Power, NRPPD, MPEI and LPEA filed with the 10th Circuit Court of Appeals a joint motion to transfer our petition for review to the DC Circuit Court of Appeals. On July 17, 2024, we filed a response opposing this joint motion to transfer. On July 23, 2024, the court denied the joint motion to transfer our petition for review from the 10th Circuit Court of Appeals. On January 25, 2024, we filed a revised Rate Schedule 281 with FERC with the contract termination methodology based upon the FERC December 19 Order. On March 29, 2024, FERC issued an order accepting our revised Rate Schedule 281, subject to further compliance filing, and established hearing and settlement judge procedures related to our sleeving administrative fee methodology set forth in our revised Rate Schedule 281. On April 12, 2024, we submitted a further revised Rate Schedule 281 as directed by FERC's March 2024 order. On June 28, 2024, we submitted a further revised Rate Schedule 281 as directed by FERC's May 23 Order. FERC has not issued an order on our April 2024 or June 2024 revised Rate Schedule 281 so our January 2024 Rate Schedule 281 is currently on-file with FERC. On May 1, 2024, United Power withdrew from membership in us and terminated its wholesale electric service contract with us pursuant to Rate Schedule 281 on-file with FERC and a Membership Withdrawal Agreement with United Power. United Power’s contract termination payment amount was $709.4 million. United Power paid us an exit fee in cash of $627.2 million, after a regulatory liabilities credit and United Power relinquishing its right to any patronage capital in us resulting in a discounted patronage capital credit of $82.2 million. Such amounts remain subject to true-up in accordance with Rate Schedule 281 and United Power's Membership Withdrawal Agreement. As provided in the Membership Withdrawal Agreement, United Power's exit fee is also subject to true-up in the event Rate Schedule 281 and the amount paid by United Power are modified pursuant to a subsequent final and non-appealable FERC order, including resolution of the petitions for review filed by us and United Power. It is not possible to predict the outcome of this matter or whether we will be required to refund any amounts to United Power or if United Power will be required to pay us any additional amounts. NRPPD did not comply with Rate Schedule 281 on-file with FERC and made no contract termination payment to us. NRPPD’s wholesale electric service contract with us remains in effect an d NRPPD remains a Class A member of us. NRPPD’s April 29, 2022 notice of intent to withdraw is deemed null and void. NRPPD is disputing our position that their wholesale electric service contract with us remains in effect and NRPPD remains a Class A member of us. It is not possible to predict the outcome of the proceedings related to NRPPD's status as a Class A member or its position that it has terminated its wholesale electric service contracts with us and whether we will suffer any liability or loss from the proceedings. LPEA's La Plata County District Court Complaint . On November 10, 2023, LPEA filed a complaint with the La Plata County District Court, Case No. 2023CV30148, against us. The complaint alleges, among other things, that we have breached our Bylaws and our wholesale electric service contract with LPEA by failing to provide equitable terms and conditions for LPEA to withdraw from us and by violating the implied covenant of good faith and fair dealing. LPEA seeks a declaratory order that we have materially breached our Bylaws and our wholesale electric service contract and that LPEA is relieved from any further obligation to perform under those agreements, or in the alternative, damages from us for such alleged breach. On January 10, 2024, we filed a motion to dismiss stating that LPEA's claims are barred by federal preemption and the statute of limitations. On July 18, 2024, the court denied our motion to dismiss, ruling that the case was not preempted by FERC's jurisdiction and should not be dismissed for violating the statute of limitations. On August 1, 2024, we filed our answer denying all of the allegations in LPEA's complaint and that LPEA is entitled to any relief. It is not possible to predict the ou tcome of this matter, whether we will incur any liability in connection with this matter, and in the event of liability, if any, the amount or type of damages, equitable relief or other legal relief that could be awarded or granted. NRPPD Complaint: On March 25, 2024, NRPPD filed a FPA section 206 proceeding with FERC, Docket No. EL24-93, against us and Basin seeking FERC to exercise primary jurisdiction over the interpretation of the FERC December 19 Order and our Amended and Restated Wholesale Power Contract for the Eastern Interconnection with Basin ("Basin Eastern WPC"). In particular, NRPPD requests that FERC hold that NRPPD’s withdrawal from us is permissible under the Basin Eastern WPC and that NRPPD’s contract termination payment calculation is the appropriate contract termination payment. NRPPD further seeks refunds from us because Basin has allegedly overcharged us and thus NRPPD for sa les of power and energy under the Basin Eastern WPC for Basin’s financial losses caused by Basin’s Urea facility. On May 8, 2024, we and Basin separately filed answers to NRPPD's complaint. Both us and Basin requested FERC to deny NRPPD's complaint. We also requested to the extent FERC determines that NRPPD's withdrawal is permissible under the Basin Eastern WPC that we can be permitted to allocate the withdrawing member its portion of costs related to the Basin Eastern WPC pursuant to our Rate Schedule 281 to prevent the cost of the obligation from shifting to remaining members. On May 28, 2024, NRPPD filed a response to our and Basin's answers and again asserted that its withdrawal from us is permissible under the Basin Eastern WPC and if, prohibited, the Basin Eastern WPC be held not just and reasonable and NRPPD be permitted to withdraw from us. It is not possible to predict the ou tcome of this matter or whether we will incur any liability or loss in connection with this matter. Energy Sales - Soft-Cap: In August 2020, we made certain energy sales to third parties in excess of the soft-cap price for short-term, spot market sales of $1,000 per megawatt hour established by the Western Electricity Coordinating Council. On October 7, 2020, we filed a report with FERC justifying the sales above the soft-cap and we did not recognize the revenue for the energy sales in excess of the soft-cap, Docket No. EL21-65-000. Based upon additional guidance from FERC, we filed a supplemental report on July 19, 2021. On May 20, 2022, FERC issued an order directing us to refund only certain amounts of the energy sales revenue in excess of the soft-cap. Based upon the FERC order, in the second quarter of 2022, we recognized approximately $2.9 million in excess of the soft-cap and refunded $0.4 million to a third party. On July 22, 2022, the California Public Utilities Commission filed a petition for review with the DC Circuit Court of Appeals of FERC’s May 20, 2022 order, Case No. 22-1169. On August 18, 2022, we filed a motion to intervene with the DC Circuit Court of Appeals and an order granting our motion was issued on September 6, 2022. On January 24, 2023, the parties to the proceeding filed a motion with the court to consolidate this proceeding with other related proceedings with the DC Circuit Court of Appeals and proposed a procedural schedule with final briefings due in October 2023 . On March 6, 2023, the DC Circuit Court of Appeals granted the motion to consolidate the proceedings. On October 31, 2023, the final briefs were filed in this consolidated proceeding. On July 9, 2024, the DC Circuit Court of Appeals issued an order vacating FERC's order and remanding the case back to FERC to conduct a Mobile-Sierra analysis. It is not possible to predict the outcome of this matter or whether we will be required to refund any additional amounts to third parties. |