20050907Petition for reconsideration and for stay.pdf

BARTON L. KLINE , ISB # 1526
MONICA B. MOEN , ISB # 5734
Idaho Power Company
1221 West Idaho Street
O. Box 70
Boise , Idaho 83707
Telephone: [phone]FAX: [phone]
E-mail: BKline ~ idahopower.com
MMoen ~ idahopower.com
Attorneys for Idaho Power Company
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BEFORE THE IDAHO PUBLIC UTiliTIES COMMISSION
IN THE MATTER OF THE PETITION OF
IDAHO POWER COMPANY FOR AN
ORDER TEMPORARilY SUSPENDING
IDAHO POWER'S PURPA OBLIGATION
TO ENTER INTO CONTRACTS TO
PURCHASE ENERGY GENERATED BY
WIND-POWERED SMAll POWER
PRODUCTION FACILITIES.
CASE NO. IPC-05-
IDAHO POWER COMPANY'
PETITION FOR RECONSIDERATION
OF FINAL ORDER NO. 29851
AND
PETITION FOR STAY OF ORDER
NO. 29851
Idaho Power Company (hereinafter referred to as "Idaho Power" or "the
Company ), Petitioner herein , pursuant to RP 331 , RP 333 and 9 61-626, Idaho Code
respectfully petitions the Commission for Reconsideration and Stay of Order No. 29851.
Order No. 29851 makes final the portion of interlocutory Order No. 29839 that
established criteria that the Commission would consider to determine if certain PURPA
qualifying wind generating facilities ("OFs ) should be exempted from the 00 kW size
limit for entitlement to published avoided cost rates. In numerous Commission OF
orders , granting exemptions to the application of a changed avoided cost regime has
been referred to as conferring "grandfather status" or "grandfathering" a OF project.
IDAHO POWER COMPANY'S PETITION FOR RECONSIDERATION AND PETITION
FOR STAY, Page
By these Petitions, Idaho Power is specifically requesting that the
Commission reconsider its determination that one of the primary criteria the
Commission will consider in deciding whether or not to exempt a OF project from
application of the 100 kW published rate eligibility cap is whether or not , prior to July 1
2005, the OF had filed an interconnection study application and paid the interconnection
study fee. Idaho Power believes that filing an interconnection study application and
paying the study fee should not be a primary criterion , but, instead, should be included
on the list of secondary criteria indicating progress toward OF project completion. The
Company requests reconsideration of the interconnection study application
grandfathering" criterion because that criterion is unreasonable , unlawful , erroneous
unduly discriminatory and not in conformitY' with the facts of record and/or applicable
law.
Idaho Power is also petitioning the Commission for an Order staying Idaho
Power s obligation to enter into contracts with wind OFs that claim an exemption from
the 100 kW size limit based on the fact that the OF had filed an interconnection
application and paid the interconnection study fee on or before July 1 , 2005.
Idaho Power s Petition for Reconsideration and Petition for Stay are based
on the following reasons and upon the following grounds:
Establishing The Submittal Of An Interconnection
Study Request And Payment Of Engineering Fee As A
Primary Criterion To Determine Eligibility For
Grandfathered Status Is Unreasonable, Erroneous
Unduly Discriminatory And Not In Conformity With
The Law.
IDAHO POWER COMPANY'S PETITION FOR RECONSIDERATION AND PETITION
FOR STAY, Page 2
To be entitled to grandfather status, a OF developer must enter
into a contract with the utility or demonstrate that it was prevented from obtaining
a contract by the unreasonable conduct of the utility.
On August 31 , 2005, the Commission Staff filed a Petition for
Reconsideration of Final Order No. 29851 and a Cross-Petition for Reconsideration of
Final Order No. 29851 ("the Petitions ). In the Petitions , Staff provides a succinct
history of the numerous Commission orders and confirming Idaho Supreme Court
opinions that address the issues associated with grandfathering OF projects. These
orders and opinions describe the criteria that the Commission has applied when
considering a OF's request for grandfathering. Idaho Power concurs that the Staff's
recitation of the orders and opinions presents an accurate summary of the law in Idaho
on the subject of grandfathering OF projects. As a' result , to avoid unnecessary
duplication of pleadings , Idaho Power will not repeat in this Petition all of the legal
citations already presented in Staff's Petitions. In 9onsidering Idaho Power s Petition for
Reconsideration , Idaho Power requests that the Commission take administrative notice
of the Commission orders and Idaho Supreme Court opinions cited and described in
Staff's Petitions.
In the Petitions , Staff also recites the criteria the Commission has applied
to decide cases when a OF requests grandfathered status. Staff correctly concludes
that the Orders and Opinions cited in the Petitions hold that a OF is entitled to be
grandfathered only if the OF can demonstrate (1) that it has entered into a contract with
the utility in which the OF has legally committed itself to perform as provided in the
IDAHO POWER COMPANY'S PETITION FOR RECONSIDERATION AND PETITION
FOR STAY, Page 3
contract or (2) the OF can demonstrate it was prevented from obtaining a contract by
the unreasonable conduct of the utility.
Idaho Power believes that the Staff's analysis of the Commission s Orders
and supporting Idaho Supreme Court Opinions provide an accurate representation of
the basis for the Commission s adoption of the above-described alternative tests for
grandfathering.
Idaho Power concurs with and , to avoid unnecessary duplication of
pleadings, hereby adopts as its reasons and grounds for seeking reconsideration , the
Staff's assertion in the Petitions that to qualify for grandfathering eligibility and
entitlement to a contract at publishe9 avoided cost rates , the OF must demonstrate that
it has entered into a contract or "legally enforceable obligation" binding itself to perform
in accordance with the agreement or alternatively it must demonstrate that
, "
but for" the
actions of the utility, it would have entered into such a legally enforceable obligation.
Idaho Power further concurs with and adopts Staff's conclusion that any other criterion
for conferring grandfather status is not in conformity with the requirements and
procedures previously established by the Commission in its orders.
Submittal of an interconnection study request may be
evidence of OF project progress but it does not satisfy the requirements
established by the Commission for entitlement to grandfather status.
In its Petitions, Staff argues that the second threshold criterion
enumerated by the Commission in Order No. 29851 , i.e.
, "
(2) submittal to the utility of a
complete application for interconnection study and payment of fee" (Order No. 29851
IDAHO POWER COMPANY'S PETITION FOR RECONSIDERATION AND PETITION
FOR STAY , Page 4
p. 10) is not properly a threshold eligibility criterion for determining entitlement to
published avoided cost rates.
Idaho Power concurs with and adopts Staff's conclusion as stated in its
Petitions that an application for interconnection study is not an enforceable, binding OF
commitment to deliver energy. While there is no question that completion of the
interconnection process is one of the major milestones on the critical path toward
developing a OF project, submittal of an application for an interconnection study does
not commit the OF to anything. Submittal of a request for an interconnection study is
only the first step in the interconnection process. It can be withdrawn or abandoned at
any time at the sole discretion of the developer and does not commit the OF to any
project development activities. Staff's Petitions correctly characterize an application for
interconnection study as a second tier criteria providing an indication of project progress
and matu rity.
Nature and Extent of Evidence and Argument to be Offered on
Reconsideration.
RP 331 requires that Idaho Power state the nature and the extent of any
evidence or argut'Tlent it will present or offer if reconsideration is granted. It is the
position of Idaho Power that the evidentiary record before the Commission and the
applicable law requires that the Commission modify Order No. 29851 as set forth in this
Petition for Reconsideration and to grant the Petition for Stay. Idaho Power does not
believe that any further evidence is necessary for the Commission to reach that
conclusion. Idaho Power believes that any additional proceedings before the
Commission should be limited to the filing of briefs or comments. Nevertheless , the
IDAHO POWER COMPANY'S PETITION FOR RECONSIDERATION AND PETITION
FOR STAY , Page 5
Company is prepared to present additional testimony and/or argument in support of the
items it has identified as requiring modification as set forth in these Petitions, including
additional information on the interconnection processing if the Commission desires to
consider such additional information.
PETITION FOR STAY
In its Petition for Reconsideration, Idaho Power concurs with Staff's
reasons for seeking reconsideration and with the legal citations supporting those
reasons outlined in the Staff's Petitions. However , Idaho Power differs with Staff's
position in one major area. In its Petitions , Staff indicates that it "differs from Windland
in that Staff believes the determination of project eligipility and entitlement for a contract
of the public avoided cost rates should go forward." As such , Staff has not requested a
stay of Order No. 29851. Unlike the Staff, Idaho Power believes it is imperative that the
Commission issue its Order staying Idaho Power s obligation to enter into contracts with
OFs that claim they are exempt from the 100 kW size limitation based on the second
threshold criterion enumerated by the Commission in Order No. 29851 , i.e. "(2)
submittal to the utility of a complete application for interconnection study and payment
of fee." (Order No. 29851 , p. 2)
Idaho Code 962-626 and Commission RP 333 are unequivocal that a
petition for reconsideration does not excuse a public utility from complying with or
obeying any order or requirement of any order of the Commission during the pendency
of a petition for reconsideration unless the Commission stays the utility s compliance
with the order.
IDAHO POWER COMPANY'S PETITION FOR RECONSIDERATION AND PETITION
FOR STAY, Page 6
Idaho Power is concerned that unless the Commission issues a stay
during the pendency of the Company s Petition for Reconsideration, a number of OF
developers will file complaints against the Company alleging that they have filed
applications for interconnection and have paid the application study fee and in
accordance with Order No. 29851 and are therefore exempt from the 100 kW limit
entitlement to published rates. Unless the Commission issues the limited stay as
requested by Idaho Power, the resources of both the Commission and Idaho Power will
be unnecessarily consumed in responding to such complaints.
RESPECTFULLY SUBMITTED at Boise, Idaho, this 7th day of
September, 2005.
ILL-
BARTON L. KLINE
IDAHO POWER COMPANY'S PETITION FOR RECONSIDERATION AND PETITION
FOR STAY, Page 7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 7th day of September, 2005, I served a
true and correct copy of IDAHO POWER COMPANY'S PETITION FOR
RECONSIDERATION AND PETITION FOR STAY upon the following named parties by
the method indicated below, and addressed to the following:
Scott Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 W. Washington Street
O. Box 83720
Boise , I D 83720-0074
swoodbu ~ puc.state.id.
Peter J. Richardson
Richardson & O'Leary PLLC
515 N. 27th Street
O. Box 7218
Boise , I D 83707
pete r ~ richardsonandolearv. com
James T. Carkulis
Exergy Development Group of Idaho LLC
1424 Dodge Avenue
O. Box 5212
Helena, MT 59604
Richard L. Storro
Director, Power Supply
A vista Corporation
1411 E. Mission Avenue
O. Box 3727, MSC-
Spokane, W A 99220-3727
dick.storro ~ avistacorp.com
R. Blair Strong
Paine , Hamblen , Coffin , Brooke & Miller
717 West Sprague Avenue, Suite 1200
Spokane , W A 99201-3505
r. blai r .stron~painehamblen .com
CERTIFICATE OF SERVICE , Page
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Dean J. Miller
McDevitt & Miller LLP
420 W. Bannock Street
O. Box 2564
Boise , ID 83701
oe ~ mcdevitt-miller.com
Jared Grover
Cassia Wind LLC and
Cassia Gulch Wind Park LLC
3635 Kingswood Drive
Boise, ID 83704
Armand Eckert
Magic Wind LLC
716-B East 4900 North
Buhl, ID 83316
Glenn Ikemoto
Energy Vision LLC
672 Blair Avenue
Piedmont, CA 94611
lenni ~ acbelLnet
Bob Lively
PacifiCorp
One Utah Center, 23rd Floor
201 S. Main Street
Salt Lake City, UT 84140
bob .Iivel acificor com
Lisa Nordstrom
PacifiCorp
825 N.E. Multnomah, Suite 1800
Portland , OR 97232
lisa. nordstrom ~ acificor com
William M. Eddie
Advocates For the West
1320 W. Franklin Street
O. Box 1612
Boise, ID 83701
billeddie~ rmci.net
CERTIFICATE OF SERVICE, Page 2
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Troy Gagliano
917 S.W. Oak Street , Suite 303
Portland, OR 97205
David Hawk, Director
Energy Natural Resources
J. R. Simplot Company
999 Main Street
O. Box 27
Boise , I D 83702
dhawk ~ sim lot.com
R. Scott Pasley
Assistant General Counsel
J. R. Simplot Company
999 Main Street
O. Box 27
Boise, I D 83702
lliJasle ~ sim lot.com
William J. Batt
John R. Hammond , Jr.
Batt & Fisher, LLP
101 S. Capitol Blvd., Suite 500
O. Box 1308
Boise, ID 83701
yyj
~ battfisher.com
rh ~ battfisher.com
Michael Heckler
Director of Marketing & Development
Wind land Incorporated
7669 W. Riverside Drive, Suite 102
Boise , ID 83714
mheckler~windland.com
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l'-
BARTON L. KLINE
CERTIFICATE OF SERVICE, Page 3