20101108Complaint.pdf

~r.~l"ATTORNEYS AT LAW 20m NOV -8 PH 2: 23
Peter Richardson
Tel: [phone] Fax: [phone]
pete t~ tic h a td so nan d 01 e a ty. com
P.O. Box 7218 Boise, ID 83707 - 515 N. 27th St. Boise,ID 83702
November 8, 2010
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, ID 83702
CASE NO..1 c.- 5- - lD-~ r
Dear Ms. Jewell:
We are enclosing an Original and seven (7) copies of the FORMAL COMPLAINT
OF GROUSE CREEK, LLC vs IDAHO POWER COMPANY.
Please let us know if you have any questions. Thank you.
Sincerely,~Ú(~)
Nina M. Curtis
Administrative Assistant to Peter Richardson
Richardson & O'Leary PLLC
Peter J. Richardson (ISB # 3195)
Gregory M. Adams (ISB # 7454)
Richardson & O'Lear, PLLC
515 N. 27th Street
P.O. Box 7218
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
peter(irichardsonandolear .com
greg(irichardsonandolear.com
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UTiLITIES
Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
Grouse Creek Wind Park, LLC,
Complainant,
)
) Case No. :tc-p--(D-Q. '7
)
) FORMAL COMPLAINT
)
)
)
)
vs.
IDAHO POWER COMPANY,
Defendant.
1 INTRODUCTION
2 This is a formal complaint filed by Grouse Creek Wind Park, LLC with the Idaho Public
3 Utilities Commission (the "Commission") pursuat to Idaho Administrative Rules 31.01.01.054.
4 Grouse Creek Wind Park, LLC requested that Idaho Power Company ("Idaho Power") execute a
5 standard Public Utility Regulatory Policies Act of 1978 ("PURP A") power purchase agreement
6 ("PPA") for qualifying facilties ("QFs") under 1 0 average monthly mega-watts ("aMW") for
7 Grouse Creek Wind Park, LLC's renewable energy QF. Because Idaho Power has not negotiated
8 in good faith in response to Grouse Creek Wind Park, LLC's attempt to obligate itself to the
9 terms of a standard PP A at the published avoided cost rates, Grouse Creek Wind Park, LLC
10 respectfuly requests that the Commission issue a declaratory judgment that Grouse Creek Wind
Page 1 - FORMAL COMPLAINT
1 Park, LLC is entitled to such a PP A and fuher requests that the Commission order Idaho Power
2 to enter into a PPA at the rates in effect on the date of this filing (errata to Order No. 31025).
3 PRELIMINARY MATTERS
4 Copies of all pleadings and other correspondence in this matter should be served upon
5 counsel for Grouse Creek Wind Park, LLC at:
6 Peter J. Richardson7 Gregory M. Adams8 Richardson & O'Lear, PLLC9 515 N. 27th Street10 P.O. Box 721811 Boise, Idaho 8370212 Telephone: [phone] Fax: [phone]
peter(irichardsonandoleary.com
14 greg(irichardsonandoleary.com
15
16 In support of this Complaint, Grouse Creek Wind Park, LLC alleges as follows:
17 IDENTITY OF PARTIES
18 1.Idaho Power is an Idaho Corporation with its principal place of business at 1221
19 West Idaho Street, Boise, Idaho 83702. Idaho Power Company is an electric company and a
20 public utility subject to the jurisdiction and regulation of the Idaho Public Utilities Commssion
21 pursuant to LC. § 61-129. Idaho Power is subject to the jurisdiction of the Commission, the
22 Public Utility Commission of Oregon, and the Federal Energy Regulatory Commission
23 ("FERC").
24 2.Grouse Creek Wind Park, LLC is a Delaware limited liabilty company, duly
25 registered to conduct business in the State of Idaho. Grouse Creek Wind Park, LLC's address is
26 Grouse Creek Wind Park, LLC, c/o Wasatch Wind Intermountain, LLC, 2700 Homestead Road,
27 Suite 210, Park City, Utah 84098. Grouse Creek Wind Park, LLC has the rights to develop and
Page 2 - FORMAL COMPLAINT
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dispose of the output of the Grouse Creek Wind Park, LLC wind project, which is a qualifying
facility under the Public Utilty Regulatory Policies Act of 1978.
JURISDICTION
3. This case involves PURPA's avoided cost provisions and FERC implementing
regulations thereto, which PURPA directs states to implement. See 16 U.S.C. § 824a-3 (a)-(g);
FERC v. Mississippi, 456 U.S. 742, 751 (1982). In Idaho, the Commission possesses jurisdiction
over complaints regarding rates of public utilities, including PURPA rates. i.e. §§ 61-129, -501.
-502, -503, -612; see also Afton Energy Inc. v. Idaho Power Co., 111 Idaho 925, 929, 729 P. 2d
400, 404 (1986). The Commission has jurisdiction to issue declaratory judgments regarding
utility contracts pursuant Idaho's Declaratory Judgment Act, I.C. § 10-1203. See Utah Power
and Light v. Idaho Pub. Utilties Commission, 112 Idaho 10, 12, 730 P.2d 930,932 (1986).
APPLICABLE LAWS AND REGULATIONS
4. Section 210 of PURP A requires electric utilities to purchase power produced by
small power producers that obtain QF status under section 201. 16 U.S.C. § 824a-3(a)(2). FERC
rues provide QFs with the option of sellng electricity and capacity to a utility based on the
utilty's "avoided costs" at the time the QF incurs a legally enforceable obligation to deliver
energy or capacity over a specified term. See 18 C.F.R. § 292.304(d)(2)(ii). Thus, "a QF, by
committing itself to sell to an electric utility, also commits the electrc utilty to buy from the QF;
these commitments result either in contracts or in non-contractul, but binding, legally
enforceable obligations." JD Wind 1, LLC, "Notice of Intent Not to Act and Declaratory Order,"
129 FERC ~ 61,148, at p. 10-11 (November 19,2009).
Page 3 - FORML COMPLAINT
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FACTUAL BACKGROUND
5. Grouse Creek Wind Park, LLC, and its predecessors, have been actively engaged
in the development of the Grouse Creek Wind Park, LLC wind project. The project has a
nameplate capacity rating of 21 MW, and is designed to generate no more than 10 average
monthly mega-watts.
6. Grouse Creek Wind Park, LLC, and its predecessors, have made substatial
efforts in development of the project, and the project is matue and entitled to obligate itself to a
long-term PPA for a PURP A QF under 10 aMW entitled to the published rates.
7. Grouse Creek Wind Park, LLC, and its predecessors, have been in contact with
Idaho Power for a substantial amount of time regarding the site and the specifics of
interconnection, transmission, and sale of its output. The Grouse Creek Wind Park, LLC project
will interconnect with the Ra River Rural Electrc Cooperative, and wheel the output though
Bonnevile Power Admnistration ("BP A") for delivery of the output to Idao Power's system at the
Minidoka substation.
8. Grouse Creek Wind Park, LLC obligated itselfto enter into the standard PURPA
PP A at a time when the rates in Order No. 31025 were applicable to its project, by providing
Idaho Power with the project's specifications and stating that it intended to obligate itself to a
standard PURP A PP A containing all of the terms and conditions approved by the Commission.
9. Despite Grouse Creek Wind Park, LLC's efforts, Idaho Power has acted in bad
faith by requiring completion of unecessary interconnection processes and transmission service
requests prior to executing the PP A and refusing to enter into an agreement without a punitive
delay liquidated damages security provision requiring Grouse Creek Wind Park, LLC to post
$45/kw nameplate capacity. Grouse Creek Wind Park, LLC has expressed a willingness to agree
Page 4 - FORMAL COMPLAINT
1 to a delay security damages clause reasonably calculated by the Commission to approximate
2 Idaho Power's damages in the event ofa delay default, and Grouse Creek Wind Park, LLC
3 remains committed to such a provision deemed reasonable by the Commission. With Grouse
4 Creek Wind Park, LLC' s commitment to such a provision, Idaho Power's insistence on
5 completion of the protracted interconnection and transmission processes prior to executing a
6 PP A is uneasonable.
7 10. Additionally, after the close of business on Friday, November 5, 2010, Grouse
8 Creek Wind Park, LLC leared ofIdaho Power's joint petition and motion, with Rocky
9 Mountain Power and Avista Corporation, fied in Commission Case No. GNR-E-I0-04,
10 requesting the Commission immediately lower the eligibility cap for published rates from 10
11 aMW to 100 kilowatts of nameplate capacity. Idaho Power acted in bad faith by failing to notify
12 Grouse Creek Wind Park, LLC that it would fie this Joint Motion to lower the eligibility cap for
13 published avoided cost rates prior to executing the PP A to which Grouse Creek Wind Park, LLC
14 has been attempting to obligate itself.
15 11. Idaho Power provided Grouse Creek Wind Park, LLC with no advance notice of
16 its intent to request that the Commission make the PP A sought by Grouse Creek Wind Park,
17 LLC unavailable.
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Page 5 - FORMAL COMPLAINT
1 LEGAL CLAIM
2 Complainant's Claim for Relief
3 Idaho Power is in violation ofPURPA, FERC's regulations and orders, and the
4 Commission's orders by failng to provide Grouse Creek Wind Park, LLC with a power
5 purchase agreement with published avoided cost rates in Order No. 31025.
6 12. Grouse Creek Wind Park, LLC re-alleges and incorporates all preceding
7 paragraphs.
8 13. Grouse Creek Wind Park, LLC has attempted in good faith to engage in
9 negotiations to obtain a fully executed power purchase agreement to deliver energy and capacity
10 to Idaho Power from the Grouse Creek Wind Park, LLC wind project.
11 14. Grouse Creek Wind Park, LLC committed itself to sell energy and capacity from
12 its QF to Idaho Power at a time when the rates in Order No. 31025 were applicable to its QF,
13 and, consequently, Grouse Creek Wind Park, LLC committed Idaho Power to buy from the QF at
14 those rates.
15 15. These commitments result in non-contractual, but binding, legally enforceable
16 obligations. 18 C.F.R. § 292.304(d)(2)(ii); JD Wind 1, LLC, 129 FERC ~ 61,148, at pp. 10-11.
17 16. By negotiating in bad faith and by failing to execute a PP A, Idaho Power is in
18 violation ofPURPA, FERC's implementing regulations, and the Commission's orders. See 16
19 U.S.C. § 824a-3(a)(2); 18 C.F.R. § 292.304(d)(2)(ii); Blind Canyon Aquaranch v. Idaho
20 Power Company, Case No. IPC-E-94-1, Order No. 25802 (November 1994).
21 PRAYER FOR RELIEF
22 WHEREFORE, Grouse Creek Wind Park, LLC respectfuly requests that the
23 Commission issue an Order:
Page 6 - FORMAL COMPLAINT
1 1.Declarng that Idaho Power is in violation ofPURPA, FERC's implementing
2 regulations, and the Commission's orders.
3 2.Requiring Idaho Power to execute a stadard PURP A power purchase agreement
4 with Grouse Creek Wind Park, LLC at Idaho Power's avoided cost rates on fie for QFs under 10
5 aMW in Order No. 31025.
6 3.Granting any other relief that the Commission deems necessar.
~
Respectfully submitted this 1. day of November 2010.
RICHARDSON AND O'LEARY, PLLCt/Q.~Peter J. Richardson (ISB No: 3195)
Gregory M. Adams (ISB No. 7454)
Attorneys for Complainant
Page 7 - FORMAL COMPLAINT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the ~~ay of November, 2010, a true and correct copy of
the within and foregoing FORMAL COMPLAINT BY GROUSE CREEK WIND PAR, LLC
was served by HAND DELIVERY, to:
Jean Jewell
Commission Secretary
Idaho Public Utilties Commission
472 West Washington
Boise, Idaho 83702
Jean. j ewell(fpuc.idaho. gov~
P~e 8 - FORMAL COMPLAINT