20051007Complaint.pdf

\ EDBRUCE M. SMITH, ISB #3425
MOORE SMITH BUXTON & TURCKE, CHARTERED
Attorneys at Law
225 North 9th Street, Suite 420
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
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Attorney for Tierra Energy, LLC
BEFORE THE IDAHO PUBILIC UTILITIES COMMISSION
Case No. T-PC -oS ~ 7TIERRA ENERGY, LLC
Complainant COMPLAINT TO OBTAIN
COMMISSION ORDER
IRECTIN G ID AH POWER
COMPANY TO EXECUTE AN
IDAHO POWER COMPANY ENERGY SALES AGREEMENT
WITH TIERRA ENERGY
Respondent.
COMES NOW, Tierra Energy LLC ("Tierra ), and requests that the Commission issue an
order directing Idaho Power Company to execute an Energy Sales Agreement pursuant to the
Public Regulatory Policies Act of 1978 ("PURP A") with Tierra. This Complaint is based on the
following:
Idaho Power Company ("IPCO") is an investor owned utility which supplies
electrical service to customers within the State of Idaho. It is subject to the jurisdiction of the
Idaho Public Utilities Commission pursuant to Idaho Code Title 61. IPCO is also subject to the
requirements of Sections 201 and 210 of PURP A that require electric utilities to offer to
purchase electric energy from qualifying cogeneration and small power production facilities
COMPLAINT TO OBTAIN COMMISSION ORDER DIRECTING IDAHO POWER COMPANY TO
EXECUTE AN ENERGY SALES AGREEMENT WITH TIERRA ENERGY - l
OR \ G \ N A L
(known as Qualifying Facilities or QF'S)l . Pursuant to PURP A the purchase rate for buying this
energy from QF's is set by the state commissions.
In Order No. 29646 dated December 1 , 2004, Case No. IPC-04-, the
Commission established current applicable rates which IPCO is legally obligated to pay QF'
that are designed to generate not more than 10 aMW per month. The current published rate for a
20 year QF contract is approximately $61.00 per month.
Tierra Energy, LLC is a Delaware limited liability company which owns and
operates facilities which are designated QF's. On June 27 , 2005, Tierra sent to the Federal
Energy Regulatory Commission a Notice of Self Certification of a Qualifying Facility. The
Facility is a wind powered generation project located in Power County, Idaho. As identified in
the application, Tierra indicated that the electrical output of the Facility was to be sold to IPCO
under a power purchase agreement.
On June 27 , 2005 , Tierra also sent a copy of its filing which certified its proposed
Facility as a QF to IPCO.Tierra s letter requested that IPCO forward its Energy Sales
Agreement to Tierra. Tierra also called IPCO and informed IPCO that the FERC certification
filing was being sent.
At the time of its filing with FERC and its request for the Energy Sales
Agreement from IPCO, IPCO was subject to PURP A's requirement that it purchase energy from
Tierra at the published rates set by the Commission.
On June 17, 2005 IPCO filed with the Commission a petition seeking a
suspension of IPCO's obligation to purchase energy from wind powered facilities such as
Tierra s. IPCO's petition is still being considered by the Commission. See Commission Staff'
I 16 use ~ 824a -3(a)
COMPLAINT TO OBTAIN COMMISSION ORDER DIRECTING IDAHO POWER COMPANY TO
EXECUTE AN ENERGY SALES AGREEMENT WITH TIERRA ENERGY - 2
Petition for Reconsideration of Final Order No. 29851 Cross Petition for Reconsideration of
Final Order No. 29851,' see also order No. 29872.
As of June 27, 2005, the date Tierra requested the Energy Sales Agreement and
had filed its Notice of Self Certification with FERC, the Commission had not granted nor taken
other action on IPCO's petition.
Until relieved of its obligation to purchase QF energy, IPCO must purchase such
power at the published rates.
Subsidiaries of Tierra presently have two existing Energy Sales Agreements with
IPCO. One Energy Sales Agreement is between IPCO and Glenns Ferry Cogeneration Partners
Ltd. ("Glenns Ferry Cogen ). The second is between IPCO and Rupert Cogeneration Partners
Ltd. ("Rupert Cogen ). Glenns Ferry Cogen signed a Firm Energy Sales Agreement with IPCO
in 1992 and Rupert Cogen signed a Firm Energy Sales Agreement with IPCO in 1993. Both
projects commenced commercial operations in 1996.
10.Tierra was directed by IPCO in May 2005 to review Case No. IPC-05-18 in the
matter of the application of IPCO for approval of a Firm Energy Sales Agreement between IPCO
and Burley Butte Wind Park L.C. which provided the standard form of Energy Sales
Agreement utilized by IPCO for windpower projects. As of June 27, 2005, Tierra was ready,
willing, and able to enter into the standard form of Energy Sales Agreement with IPCO for the
Power County Facility and had demonstrated its commitment to enter into a legally enforceable
obligation to deliver to IPCO the energy and capacity associated with the Power County Facility.
11.Despite Tierra s filing of its Notice of Self Certification with FERC and its
requests to IPCO to provide the Energy Sales Agreement, IPCO refused to submit the contract to
Tierra.
COMPLAINT TO OBTAIN COMMISSION ORDER DIRECTING IDAHO POWER COMPANY TO
EXECUTE AN ENERGY SALES AGREEMENT WITH TIERRA ENERGY - 3
12.According to IPCO's representations to Tierra, its sole basis for refusing to
submit the Energy Sales Agreement for execution was IPCO"s intent to "wait and see" how the
Commission responded to IPCO's petition for a suspension of its obligation to purchase power
pursuant to PURP A. Thus, but for the actions of IPCO in refusing to submit the Energy Sales
Agreement for execution, Tierra would have a contract at the Commission s published rates.
13.On October 4, 2005, in a good faith effort to address IPCO's refusal to submit the
Energy Sales Agreement for execution, Tierra again contacted IPCO by phone and by letter
reaffirming its June 27, 2005 request that IPCO forward an Energy Sales Agreement. By letter
dated October 5, 2005, IPCO refused Tierra s request and has to date refused to forward the
requested agreement.
TIERRA'S REQ UES TED RELIEF
Tierra submits that IPCO has by its own actions unlawfully refused to enter into
the Energy Sales Agreement despite a showing that Tierra was ready, willing, and able to
provide energy and a timely request by Tierra to do so.
Tierra requests that the Commission issue an order requiring IPCO to provide to
Tierra an Energy Sales Agreement at the current published rate.
DATED this ay of October, 2005.
MOORE SMITH BUXTON & TURCKE
CHAR TERED
. Smith
orney for Tierra Energy, LLC
COMPLAINT TO OBTAIN COMMISSION ORDER DIRECTING IDAHO POWER COMPANY TO
EXECUTE AN ENERGY SALES AGREEMENT WITH TIERRA ENERGY - 4