20150917Joint Answer to Petition.pdf

sEm.
An IDACORP Company
DONOVAN E. WALKER
Lead Counse!
[e-mail]
Septembet 17,20'15
. i, i o-!)lli Fii tr: 25
'1"r...,
VlA HAND DELIVERY
Jean D. Jewell, Secretary
ldaho Public Utilities Commission
472 West Washington Street
Boise, ldaho 83702
Re: Case Nos. IPC-E-15-01 , AVU-E-15-01, and PAC-E-15-03
Modify Terms and Conditions of PURPA Purchase Agreements
Joint Answer of ldaho Power Company, Avista Corporation, and
Rocky Mountain Power to J.R. Simplot Company and Glearwater
Paper Corporation's Petition for Reconsideration
Dear Ms. Jewell:
Enclosed for filing in the above matters please find an original and seven (7)
copies of the Joint Answer of ldaho Power Company, Avista Corporation, and Rocky
Mountain Power to J.R. Simplot Company and Clearwater Paper Corporation's Petition
for Reconsideration.
DEW/KKT
Enclosures
DONOVAN E. WALKER (lSB No. 5921)
ldaho Power Company
1221West ldaho Street (83702)
P.O. Box 70
Boise, ldaho 83707
Telephone: [phone]
Facsimile: [phone]
dwa I ker@ idaho power. co m
Attorney for ldaho Power Company
WONNE R. HOGLE (lSB No. 8930)
Rocky Mountain Power
201 South Main, Suite 2400
Salt Lake City, Utah 84111
Telephone: (801 ) 220-4050
Facsimile: (801 ) 220-3299
Yvonne. hoqle@ pacificorp.com
Attorney for Rocky Mountain Power
IN THE MATTER OF IDAHO POWER
COMPANY'S PETITION TO MODIFY
TERMS AND CONDITIONS OF PURPA
PURCHASE AGREEMENTS
IN THE MATTER OF AVISTA
CORPORATION'S PETITION TO
MODIFY TERMS AND CONDITIONS OF
PURPA PURCHASE AGREEMENTS
IN THE MATTER OF ROCKY MOUNTAIN
POWER COMPANY'S PETITION TO
MODIFY TERMS AND CONDITIONS OF
PURPA PURCHASE AGREEMENTS
MICHAEL G. ANDREA (lSB No. 8308)
Avista Corporation
1411 East Mission Avenue, MSC-23
Spokane, Washington 99202
Telephone: [phone]
Facsimile: [phone]
m ichael. a nd rea@avistaco rp. com
Attorney for Avista Corporation
CASE NO. IPC.E.15.O1
CASE NO. AVU-E-15-01
CASE NO. PAC-E-15-03
JOINT ANSWER OF IDAHO POWER
COMPANY, AVISTA
CORPORATION, AND ROCKY
MOUNTAIN POWER TO J.R.
SIMPLOT COMPANY AND
CLEARWATER PAPER
CORPORATION'S PETITION FOR
RECONSIDERATION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
)
)
)
)
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 1
ldaho Power Company ("ldaho Powe/'), Avista Corporation ("Avista"), and Rocky
Mountain Power fiointly the "Utilities"), in accordance with ldaho Code S 61-626 and RP
331.05, hereby submit this answer to the Petition for Reconsideration of final Order No.
33357 ("Petition") issued August 20,2015, filed by J.R. Simplot Company ("Simplot")
and Clearwater Paper Corporation ("Clearwated').
Simplot and Cleanrater fail to demonstrate that the ldaho Public Utilities
Commission's ("Commission") Order No. 33357 is unreasonable, unlawful, erroneous,
or not in conformity with the law. RP 331.01. The Commission's Order No. 33357 is
based upon substantial and competent evidence in the record. The Commission
regularly pursued its authority and acted within its discretion. Consequently,
reconsideration should be denied.
I. INTRODUCTION
Simplot and Clearwater make conclusions and arguments that misrepresent the
plain language of the regulations, read into the regulations requirements for long-term
contracts that are not stated and do not exist, and misconstrue the differences in the
mandatory purchase obligation of Public Utility Regulatory Policies Act of 1978
('PURPA") and the approval of proper rates, terms, and conditions of that mandatory
purchase to ensure that utility customers are not harmed thereby. The Commission's
order properly balances the mandatory purchase obligation with the protection of utility
customers. The Petition for Reconsideration should be denied.
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 2
II. SIMPLOT AND CLEARWATER'S ARGUMENTS
ARE WITHOUT MERIT
Simplot and Clearwaterl misrepresent the plain language of the regulations and
confound the precedent and authorities related to a legally enforceable obligation in an
unsuccessful effort to create a requirement for long-term contractual commitments.
The entire analysis and line of reasoning put forth in Simplot and Clearwater's Petition is
strained at best.
ln their effort to reach their desired result, Simplot and Clearwater misrepresent
that the "plain language" of 18 C.F.R. S 292.304(dx2xii) allows a QF to specify the term
of the contract. Petition at 9. Section 292.304(d)(2xii) simply does not say that. Both
PURPA and the Federal Energy Regulatory Commission ("FERC") regulations are silent
as to any specific contract length. While FERC's regulations require a specified term
(unless the QF elects to provide its output on an as-available basis), FERC's regulations
do not dictate how long that specified term must be. 18 C.F.R. S 292.304(d). More
fundamentally, contrary to Simplot and Cleanruater's assertion in their Petition, FERC's
regulations do not state that the QF shall have the option "to elect to sell such energy
and capacity over a term specified by the QFI.I' Compare 18 C.F.R. S 292.304(d) with
Petition at 9 (emphasis added).
The Commission recognized and acknowledged that FERC's regulations do not
dictate the length of the term of a PURPA contract: "Even Mr. Wenner acknowledged
1 Simplot and Clearurrater's interest and impact from this proceeding is tenuous and at best hypothetical.
Simplot's qualified facility ('OF') has most recently voluntarily contracted for a one-year term, and has
historically selected short-term PURPA contracts. The previous contract was for a term of two years,
effective February 2013; the contract before that was for a term of seven years, effective February 2006;
before that, the contract was for a term of one year, effective March 2004; and prior to that, a contract for
five years, effective January 1991 ; and from 1986 to 1991 the facility was under contract for non-firm, as-
delivered prices under Schedule 86. Clearwater currently has a non-PuRPA contract for its generation
facility with Avista. Additionally, all of PacifiCorp's cogeneration contracts are for a term of one year. See
a/so, Order No. 33357 at 25.
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 3
that FERC regulations do not dictate a specific number of years or establish a time
period for PURPA contracts. Tr. at 589. lt is not contested that PURPA, and its
implementing regulations, are silent as to a specific contract !ength." Order No. 33357
at 12. The Commission recognized the issue of determination of contract length to be
within its authority and discretion. /d. The Commission relied upon the precedent of
ldaho Supreme Court cases in its determination, as well as cases offering guidance
from the federal courts and FERC. Order No. 33357 at 2-3, 10, 12, 16, 2'l-22. The
Commission referred to several sections of the record upon which it relied in reaching
its determination. ld. at 3-5,7-11, 13-28. The Commission's Order No. 33357 is based
upon substantial and competent evidence in the record. The Commission regularly
pursued its authority and was acting within its discretion. Consequently, reconsideration
should be denied.
Simplot and Clearwater insist throughout the Petition that FERC has directed,
through its regulations, its comments regarding those regulations, and through several
legally enforceable obligation cases that QFs are entitled to long-term contracts.
However, nothing cited by Simplot and Cleanryater states any such requirement. ln fact,
nearly all of this authority is Iimited to discussing the distinction setforth in 18 C.F.R. S
292.304(d) - which allows a QF to choose to have avoided cost rates for the purchase
of its power calculated either: (1) at the time of delivery or (2) at the time of contracting
or legally enforceable obligation for a specified term. The Commission acknowledged
such provision. Order No. 33357 at 22. In fact the actual language of the regulation is
as follows:
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 4
(d) Purchases "as available" or pursuant to a legally
enforceable obligation. Each qualifying facility shall have the
option either:
(1) To provide energy as the qualifying facility determines
such energy to be available for such purchases, in which
case the rates for such purchases shall be based on the
purchasing utility's avoided costs calculated at the time of
delivery; or
(2) To provide energy or capacity pursuant to a legally
enforceable obligation for the delivery of energy or capacity
over a specified term, in which case the rates for such
purchases shall, at the option of the qualifying facility
exercised prior to the beginning of the specified term, be
based on either:
(i) The avoided costs calculated at the time of
delivery; or
(ii) The avoided costs calculated at the time the
obligation is incurred.
18 C.F.R. S 292.304(d) (italics in original) (bold emphasis added). ln fact, Simplot and
Cleanrvater quote these same provisions in the Petition; however, they state
immediately thereafter with reference to, "The plain language of 18 C.F.R. S
292.304(dx2xii) .... lt provides that each QF 'shall' be provided with the following
options: (1) to elect to sell energy and capacity; (2) to elect to sell such energy and
capacity over a term specified by the QF; and (3) to elect that the obligation contain
rates for energy and capacity calculated at the time the QF incurs that obligation."
Petition at 9 (emphasis added). This is not the plain language of the regulation.
Clearly, the regulation states, "over a specified term." lt does not state, "over a term
specified by the QF." The phrase "over a specified term" means that there ts a term,
not that the QF specifies the term. The Commission correctly concludes that PURPA
and FERC are silent as to the length of the specified term which, as referenced above,
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 5
was not contested by the parties. Order No. 33357 at 12. Citing to its "review of federal
court and state Supreme Court precedent, the testimony of the parties, PURPA, and
FERC's implementing regulations" the Commission correctly found "the issue of
contract length is left to this Commission's discretion." /d.
Next, as demonstrated by its arguments on page 12 of the Petition, Simplot and
Clearwater confuse a two-year maximum contract term with the pricing methodology
that establishes compensation for avoided capacity. Simplot and Clearwater argue:
The QF is deprived of a "fixed contract price for its energy
and capacity at the outset of its obligation" because, as the
Order expressly acknowledges, a two-year contract will not
provide a price for capacity that is fixed at this time. lt
will provide no price at all for capacity and thereby
deprive the QF of the right to sel! capacity. The utility wil!
thus evade the requirement to provide a capacity credit to
the QF "merely by refusing to enter into a contract" of
sufficient length to provide such credit to the QF.
Petition at 12 (citations omitted)(italics in original)(bold emphasis added).
First of all, the reference and statement regarding "refusing to enter into a
contract" is completely misplaced and misapplied. This case, and the Commission's
Order No. 33357, is about the proper contract term of a mandatory PURPA QF
purchase. This proceeding did not address the purpose of the existence of a legally
enforceable obligation. There is no evidence in the record, nor any discussion,
argument, or allegation regarding a utility's refusal to contract in this entire matter. The
case is about the Commission determining the just and proper rates, terms, and
conditions of the purchase of QF electric generation by a utility in such a manner that is
not harmful to utility customers.
JOINT ANSWERTO PETITION FOR RECONSIDERATION - 6
Next, Simplot and Cleanruater are again mistaken in their arguments and
understanding that Order No. 33357 somehow does not provide a price for capacity.
Order No. 33357 does not establish the avoided cost price that a QF is entitled to. lt is
limited to addressing the maximum contract length. The avoided cost price, including a
pricing component for both avoided energy and avoided capacity, is determined by the
Commission's approved and previously existing pricing methodologies. For small
projects, under the published rate eligibility cap, the avoided cost prices are set by use
of the Surrogate Avoided Resource ("SAR") methodology calculated and published by
Commission Staff. These rates are not relevant to this proceeding, as the
Commission's Order is limited to only those QF projects that exceed the published rate
eligibility cap. For such larger projects, avoided cost prices are determined by the
lncremental Cost lntegrated Resource Plan methodology authorized for use by Order
No. 32697. The Commission has previously determined, in its final, non-appealable
Order, that a QF is only entitled to payment for capacity at such time as the utility is
capacity deficient. Order No. 32697 at21.
ln calculating a QF's ability to contribute to a utility's need for
capacity, we find it reasonable for the utilities to only begin
payments for capacity at such time that the utility becomes
capacity deficient. lf a utility is capacity surplus, then
capacity is not being avoided by the purchase of QF power.
By including a capacity payment only when the utility
becomes capacity deficient, the utilities are paying rates that
are a more accurate reflection of a true avoided cost for the
QF Power.
ld. Consequently, the continual complaint in the Petition that the two-year contract term
does not provide a price for capacity is both false and an impermissible collateral attack
on the Commission's prior order. lt is the fact that the utility is capacity sufficient that
JOINT ANSWER TO PETITION FOR RECONSIDERATION .7
results in the capacity component of the avoided cost price to be zero. The capacity
price is not absent, as argued by Simplot and Clearwater, it is set at zero because the
utility is capacity sufficient. lf the utility were capacity deficient, then the methodology
would calculate the appropriate avoided cost of capacity based upon the avoided cost of
a simple-cycle combustion turbine. ld. at22. ln any event, the Commission's Order No.
32697 aside, as Rocky Mountain Power argued at closing, to the extent that a QF helps
the utility reduce firm power purchases, the rate for such a purchase will include both
avoided energy and capacity costs.2
The Commission's direction with regard to capacity in Order No. 33357 actually
favors the QF in that it allows a QF to establish the utility's capacity deficiency at the
time the initial IRP-based contract is signed. Order No. 33357 a|25. "As long as the
QF renews its contract and continuously sells power to the utility, the QF is entitled to
capacity based on the capacity deficiency date established at the time of its initia!
contract." ld. at 25-26. Under the previously authorized 2}-year contract term, a QF
would have no capacity payment (capacity component of avoided cost rate would be
zero) until the utility reached the identified first capacity deficit. This is the same for QF
contracts under the two-year term: the capacity component is zero until the utility
reaches the same identified first capacity deficit. The main difference being that
avoided cost rates are refreshed at each two-year contracting interva!, rather than being
erroneously estimated and locked-in over 20 years. The Commission in its order
acknowledges and discusses this intended result of achieving a more accurate
estimation of the utility's avoided cost for the protection of utility customers.
2 Tr.al762-1027.
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 8
Based upon our record, we find that 2O-year contracts
exacerbate overestimations to a point that avoided cost rates
over the long-term period are unreasonable and inconsistent
with the public interest. We find shorter contracts
reasonable and consistent with federal and state law for
multiple reasons. First shorter contracts have the potential
to benefit both the QF and the ratepayer. By adjusting
avoided cost rates more frequently, avoided costs become a
truer reflection of the actual costs avoided by the utility and
allow QFs and ratepayers to benefit from normal fluctuations
in the market.
Order No. 33357 at23 (emphasis in original). Further, the Commission recognized, and
appropriately distinguished between the PURPA must purchase obligation and the
proper price, terms, and conditions of that purchase in order to balance the interests of
promoting QF development but still protecting customers.
Second, shorter contract lengths do not ultimately prevent a
QF from selling energy to a utility over the course of 20
years - or longer. PURPA's "must purchase" provision
requires the utility to continue to purchase the QF's power.
As long as projects continue to offer power to utilities, utilities
must continue to purchase such power under PURPA. A
shorter contract length merely functions as a reset for
calculation of the avoided costs in order to maintain a more
accurate reflection of the actual costs avoided by the utility
over the long term. A change in the length of lRP-based
contracts is not intended to be punitive to QFs. For several
years this Commission has been adjusting terms and
conditions of PURPA contracts in order to establish avoided
cost rates that are just and reasonable to electric
consumers, in the public interest, and not discriminatory
against QFs. We find that a change in contract length aligns
with the intent of PURPA, is consistent with FERC
regulations and achieves an appropriate balance between
the competing interests of protecting ratepayers and
developing QF generation.
ld. at23-25.
Lastly, Simplot and Clearwater argue at the end of their Petition that the
Commission's direction with regard to capacity sufficiency was not "advocated by any
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 9
party" and therefore is "'not supported by substantial competent evidence on the record
as a whole;' in fact it is not supported by any evidence on the record whatsoever."
Petition at 16-17. This allegation is incorrect. The same and similar arguments set forth
by Simplot and Clearwater in its Petition were argued before the Commission and in the
record for this proceeding. Particularly with regard to the arguments raised regarding
compensation for capacity that were thoroughly discussed by Mr. Wenner, a witness on
behalf of the Idaho Conservation League and the Sierra Club. Tr. at 583-601. Mr.
Wenneds positions were supported by Simplot and Clearwate/s witness, Dr. Reading.
Tr. at 773-779. The Commission expressly recognized, considered, and acknowledged
these arguments in its final order. Order No. 33357 at 9-10.
Even if Simplot and Cleanryater were correct that the capacity sufficiency issue
was not advocated by any party (which the Utilities do not concede), the Commission
acted within its discretion. No court or regulatory body such as the Commission is
strictly limited to directing relief in a matter before it only to the extent that such relief
was exactly proposed or suggested by the parties. The Commission is free to act within
its authority and discretion, based upon the evidence before it. Here, the Commission's
direction as to capacity sufficiency is clearly within its authority and discretion to
determine the proper avoided cost price for the implementation of PURPA in the state of
ldaho.
Simplot and Cleanruater fail to demonstrate that Order No. 33357 is
unreasonable, unlawful, erroneous, or not in conformity with the law. RP 331.01. There
is substantial and competent evidence in the record to support such decision. The
Petition for Reconsideration should be denied.
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 1O
il. coNcLustoN
The Commission properly found 2O-year contracts inconsistent with the public
interest and reduced the maximum contract term to maintain a more accurate avoided
cost estimate. The Commission properly found that the change in contract length aligns
with the intent of PURPA, is consistent with FERC regulations, and achieves an
appropriate balance between the competing interests of protecting utility customers and
developing QF generation. Simplot and Clearwater have failed to demonstrate that the
Commission's Order No. 33357 is unreasonable, unlawful, erroneous, or not in
conformity with the law. RP 331.01. The Commission's Order No. 33357 is based upon
substantial and competent evidence in the record. The Commission regularly pursued
its authority and was acting within its discretion. Consequently, the Utilities respectfully
request that the Commission deny Simplot and Clearwate/s Petition for
Reconsideration.
DATED at Boise, ldaho, this 17h day of September 2015.
Attorney for ldaho Power Company
Attomey for Avista Corporation
Attorney for Rocky Mountain Power
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 17th day of September 20151 served a true and
correct copy of JOINT ANSWER OF IDAHO POWER COMPANY, AVISTA
CORPOMTION, AND ROCKY MOUNTAIN POWER TO J.R. SIMPLOT COMPANY
AND CLEARWATER PAPER CORPORATION'S PETITION FOR RECONSIDERATION
upon the following named parties by the method indicated below, and addressed to the
following:
Commission Staff
Donald L. Howell, ll
Daphne Huang
Deputy Attorneys General
ldaho Public Utilities Commission
472 W est Washington (83702)
P.O. Box 83720
Boise, ldaho 83720-007 4
J. R. Simplot Company and Cleanrater Paper
Corporation
Peter J. Richardson
Gregory M. Adams
RICHARDSON ADAMS, PLLC
515 North 27th Street (83702)
P.O. Box 7218
Boise, ldaho 83707
Dr. Don Reading
6070 Hill Road
Boise, ldaho 83703
Clearuyater Paper Corporation
ELECTRONIC MAIL ONLY
Carol Haugen
Clearwater Paper Corporation
lntermountain Energy Partners, LLC;
AgPower DCD, LLC; and AgPower Jerome,
LLC
Dean J. Miller
McDEVITT & MILLER, LLP
420 West Bannock Street (83702)
P.O. Box 2564
Boise, ldaho 83701
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daphne. huang@puc. idaho.oov
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q req@ richa rd so nadams. co m
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heather@mcdevitt-m i I ler.com
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 12
lntermountain Energy Partners, LLC
Leif Elgethun, PE, LEED AP
lntermountain Energy Partners, LLC
P.O. Box 7354
Boise, ldaho 83707
AgPower DCD, LLC, and AgPower Jerome,
LLC
Andrew Jackura
Camco Clean Energy
9360 Station Street, Suite 375
Lone Tree, Colorado 80124
ldaho Conservation League and Sierra Glub
Benjamin J. Otto
ldaho Conservation League
710 North 6th Street (83702)
P.O. Box 844
Boise, ldaho 83701
Sierra Glub
Matt Vespa
Sierra Club
85 Second Street, Second Floor
San Francisco, California 94105
Snake River Alliance
Kelsey Jae Nunez
Snake River Alliance
223 North 6th Street, Suite 317
P.O. Box 1731
Boise, ldaho 83701
ELECTRONIC MAIL ONLY
Ken Miller
Snake River Alliance
PacifiCorp d/b/a Rocky Mountain Power
Daniel E. Solander
Yvonne R. Hogle
Rocky Mountain Power
201 South Main Street, Suite 24OO
Salt Lake City, Utah 84111
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nronne. hoqle@pacificorp. com
JOINT ANSWER TO PETITION FOR RECONSIDERATION - 13
Ted Weston
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, Utah 84111
ELECTRONIC MAIL ONLY
Data Request Response Center
PacifiCorp
Twin Falls Ganal Gompany, North Side Canal
Gompany, and American Falls Reservoir
District No.2
C. Tom Arkoosh
ARKOOSH LAW OFFICES
802 West Bannock Street, Suite 900 (83702)
P.O. Box 2900
Boise, ldaho 83701
ELECTRONIC MAIL ONLY
Erin Cecil
ARKOOSH LAW OFFICES
Avista Gorporation
Michae! G. Andrea
Avista Corporation
1411 East Mission Avenue, MSC-23
Spokane, Washingto n 99202
Clint Kalich
Avista Corporation
1411 East Mission Avenue, MSC-7
Spokane, Washington 99202
ldaho lrrigation Pumpers Association, lnc.
Eric L. Olsen
RACINE, OLSON, NYE, BUDGE & BAILEY
CHARTERED
201 East Center
P.O. Box 1391
Pocatello, ldaho 83204-1391
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I i nda. qervais@avistacorp. com
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JOINT ANSWER TO PETITION FOR RECONSIDERATION - 14
Anthony Yankel
29814 Lake Road
Bay Village, Ohio 44140
Renewable Energy Goalition
Ronald L. Williams
WILLIAMS BRADBURY, P.C.
1015 West Hays Street
Boise, ldaho 83702
lrion Sanger
SANGER LAW, P.C.
1117 SW 53'd Avenue
Portland, Oregon 97215
The Amalgamated Sugar Company, LLC
Scott Dale Blickenstaff
The Amalgamated Sugar Company, LLC
1951 South Saturn Way, Suite 100
Boise, ldaho 83709
Micron Technology, lnc.
Richard E. Malmgren
Micron Technology, lnc.
800 South FederalWay
Boise, ldaho 83716
Frederick J. Schmidt
Pamela S. Howland
HOLLAND & HART, LLP
377 South Nevada Street
Carson City, Nevada 89703
Ecoplexus, Inc.
John R. Hammond, Jr.
FISHER PUSCH LLP
U.S. Bank Plaza, Seventh Floor
'101 South Capitol Boulevard, Suite 701 (83702)
P.O. Box 1308
Boise, ldaho 83701
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phowland@ hol land hart.com
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JOINT ANSWER TO PETITION FOR RECONSIDERATION - 15
John Gorman
Ecoplexus, lnc.
650 Townsend Street, Suite 310
San Francisco, Califomia 94103
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JOINT ANSWER TO PETITION FOR RECONSIDERATION - 16