20101108Complaint.pdf

REeE~.oir.B~.Ytl'ATTORNEYS AT LAW ZûlllNOV -8 PM 2: 22
Peter Richardson IOAhO
UTiLITiES
Tel: [phone] Fax: [phone]
pete r~r ichardsonandol eary. com
P.O. Box 7218 Boise, 10 83707 - 515 N. 27th St. Boise. lD 83702
November 8, 2010
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, 10 83702
CASE NO;p e../ž-IC?-3ò
Dear Ms. Jewell:
We are enclosing an Original and seven (7) copies of the FORMAL COMPLAINT
OF GROUSE CREEK II, LLC vs IDAHO POWER COMPANY.
Please let us know if you have any questions. Thank you.
Sincerely,
~J'ncM~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(irichardsonandoleary.com
ZDIDNOV -8 PM 2=22
Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
Grouse Creek Wind Park II, LLC,
Complainant,
)) Case No. ?:pcE~tD.v..
)
~ FORMAL COMPLAINT
)
)
)
vs.
IDAHO POWER COMPANY,
Defendant.
1 INTRODUCTION
2 This is a formal complaint filed by Grouse Creek Wind Park II, LLC with the Idaho
3 Public Utilties Commission (the "Commission") pursuat to Idaho Administrative Rules
4 31.01.01.054. Grouse Creek Wind Park II, LLC requested that Idaho Power Company ("Idaho
5 Power") execute a stadard Public Utilty Regulatory Policies Act of 1978 ("PURP A") power
6 purchase agreement ("PP A") for qualifying facilities ("QFs") under 1 0 average monthly mega-
7 watts ("aMW") for Grouse Creek Wind Park II, LLC's renewable energy QF. Because Idaho
8 Power has not negotiated in good faith in response to Grouse Creek Wind Park II, LLC's attempt
9 to obligate itself to the terms of a stadard PP A at the published avoided cost rates, Grouse Creek
10 Wind Park II, LLC respectfully requests that the Commission issue a declaratory judgment that
Page 1 - FORML COMPLAINT
1 Grouse Creek Wind Park II, LLC is entitled to such a PP A and fuher requests that the
2 Commission order Idaho Power to enter into a PP A at the rates in effect on the date of this filing
3 (errata to Order No. 31025).
4 PRELIMINARY MATTERS
5 Copies of all pleadings and other correspondence in this matter should be served upon
6 counsel for Grouse Creek Wind Park II, LLC at:
7 Peter J. Richardson8 Gregory M. Adams9 Richardson & O'Lear, PLLC10 515 N. 27th Street11 P.O. Box 721812 Boise, Idaho 83702
13 Telephone: [phone] Fax: [phone]
peter(irichardsonandolear.com15 greg(irichardsonandolear.com
16
17 In support of this Complaint, Grouse Creek Wind Park II, LLC alleges as follows:
18 IDENTITY OF PARTIES
19 1.Idaho Power is an Idaho Corporation with its principal place of business at 1221
20 West Idaho Street, Boise, Idaho 83702. Idaho Power Company is an electric company and a
21 public utility subject to the jurisdiction and regulation of the Idaho Public Utilities Commssion
22 pursuant to I.C. § 61-129. Idaho Power is subject to the jursdiction of the Commission, the
23 Public Utilty Commission of Oregon, and the Federal Energy Regulatory Commission
24 ("FERC").
25 2.Grouse Creek Wind Park II,LLC is a Delaware limited liability company, duly
26 registered to conduct business in the State ofIdaho. Grouse Creek Wind Park II, LLC's address
27 is Grouse Creek Wind Park II, LLC, c/o Wasatch Wind Intermountain, LLC, 2700 Homestead
Page 2 - FORMAL COMPLAINT
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Road, Suite 210, Park City, Utah 84098. Grouse Creek Wind Park II, LLC has the rights to
develop and dispose of the output of the Grouse Creek Wind Park II, 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 jursdiction
over complaints regarding rates of public utilties, including PURPA rates. I.C. §§ 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
utilty 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 ofPURPA 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
rules provide QFs with the option of sellng electricity and capacity to a utilty based on the
utility'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 electric utility to buy from the QF;
these commitments result either in contracts or in non-contractual, but binding, legally
enforceable obligations." JD Wind 1, LLC, "Notice of Intent Not to Act and Declaratory Order,"
129 FERC ir 61,148, at p. 10-11 (November 19,2009).
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FACTUAL BACKGROUND
5. Grouse Creek Wind Park II, LLC, and its predecessors, have been actively
engaged in the development of the Grouse Creek Wind Park II, LLC wind project. The project
has a nameplate capacity rating of21 MW, and is designed to generate no more than 10 average
monthly mega-watts.
6. Grouse Creek Wind Park II, 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 II, LLC, and its predecessors, have been in contact with
Idaho Power for a substatial amount of time regarding the site and the specifics of
interconnection, transmission, and sale of its output. The Grouse Creek Wind Park II, LLC
project will interconnect with the Raft River Rural Electrc Cooperative, and wheel the output
through Bonneville Power Administration ("BP A") for delivery of the output to Idaho Power's
system at the Minidoka substation.
8. Grouse Creek Wind Park II, LLC obligated itself to enter into the standard
PURP A PPA 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 stadard PURP A PP A containing all of the terms and conditions approved by the
Commission.
9. Despite Grouse Creek Wind Park II, 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 II, LLC to post
Page 4 - FORMAL COMPLAINT
1 $45/kw nameplate capacity. Grouse Creek Wind Park II, LLC has expressed a willngness to
2 agree to a delay securty damages clause reasonably calculated by the Commission to
3 approximate Idaho Power's damages in the event of a delay default, and Grouse Creek Wind
4 Park II, LLC remains committed to such a provision deemed reasonable by the Commission.
5 With Grouse Creek Wind Park II, LLC's commitment to such a provision, Idaho Power's
6 insistence on completion of the protracted interconnection and transmission processes prior to
7 executing a PP A is uneasonable.
8 10. Additionally, after the close of business on Friday, November 5, 2010, Grouse
9 Creek Wind Park II, LLC leared ofIdaho Power's joint petition and motion, with Rocky
10 Mountan Power and Avista Corporation, filed in Commission Case No. GNR-E-10-04,
11 requesting the Commission immediately lower the eligibilty cap for published rates from 10
12 aMW to 100 kilowatts of nameplate capacity. Idaho Power acted in bad faith by failing to notify
13 Grouse Creek Wind Park II, LLC that it would file this Joint Motion to lower the eligibility cap
14 for published avoided cost rates prior to executing the PP A to which Grouse Creek Wind Park II,
15 LLC has been attempting to obligate itself.
16 11. Idaho Power provided Grouse Creek Wind Park II, LLC with no advance notice
17 of its intent to request that the Commission make the PP A sought by Grouse Creek Wind Park II,
18 LLC unavailable.
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Page 5 - FORMAL COMPLAINT
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LEGAL CLAIM
Complainant's Claim for Relief
Idaho Power is in violation of PURP A, FERC's regulations and orders, and the
Commission's orders by failng to provide Grouse Creek Wind Park II, LLC with a power
purchase agreement with published avoided cost rates in Order No. 31025.
12. Grouse Creek Wind Park II, LLC re-alleges and incorporates all preceding
paragraphs.
13. Grouse Creek Wind Park II, LLC has attempted in good faith to engage in
negotiations to obtain a fully executed power purchase agreement to deliver energy and capacity
to Idaho Power from the Grouse Creek Wind Park II, LLC wind project.
14. Grouse Creek Wind Park II, LLC committed itself to sell energy and capacity
from its QF to Idaho Power at a time when the rates in Order No. 31025 were applicable to its
QF, and, consequently, Grouse Creek Wind Park II, LLC committed Idaho Power to buy from
the QF at those rates.
15. These commitments result in non-contractual, but binding, legally enforceable
obligations. 18 C.F.R. § 292.304(d)(2)(ii); JD Wind 1, LLC, 129 FERC ir 61,148, at pp. 10-11.
16. By negotiating in bad faith and by failng to execute a PP A, Idaho Power is in
violation ofPURPA, FERC's implementing regulations, and the Commission's orders. See 16
U.S.C. § 824a-3(a)(2); 18 C.F.R. § 292.304(d)(2)(ii); Blind Canyon Aquaranch v. Idaho
Power Company, Case No. IPC-E-94-1, Order No. 25802 (November 1994).
Page 6 - FORMAL COMPLAINT
1 PRAYER FOR RELIEF
2 WHEREFORE, Grouse Creek Wind Park II, LLC respectfuly requests that the
3 Commission issue an Order:
4 1.Declaring that Idaho Power is in violation ofPURPA, FERC's implementing
5 regulations, and the Commission's orders.
6 2.Requiring Idaho Power to execute a stadard PURP A power purchase agreement
7 with Grouse Creek Wind Park II, LLC at Idaho Power's avoided cost rates on file for QFs under
8 10 aMW in Order No. 31025.
9 3.Granting any other relief that the Commission deems necessar.
eft
Respectfully submitted this.a day of November 2010.
RICHARDSON AND O'LEARY, PLLC
P . Richardson (ISB No: 3195)
Gregory M. Adams (ISB No. 7454)
Attorneys for Complainant
Page 7 - FORML COMPLAINT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the~day of November, 2010, a true and correct copy of
the within and foregoing FORMAL COMPLAINT BY GROUSE CREEK WIND PAR II,
LLC was served by HAND DELIVERY, to:
ov
Page 8 - FORMAL COMPLAINT