20101108Complaint.pdf

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Peter Richardson
Tel: [phone] Fax: [phone]
pete rli r ¡chardson andol cary. com
P.O. Box 7218 Boise, ID 83707 - 515 N. 27th St. Boise. lD 83702
November 8, 2010
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, ID 83702
CASE NO.:r~-/D-3 (
Dear Ms. Jewell:
We are enclosing an Original and seven (7) copies of the FORMAL COMPLAINT
OF FALL RIVER RURAL ELECTRIC COOPERATIVE vs IDAHO POWER
COMPANY.
Please let us know if you have any questions. Thank you.
Sincerely,~C\ÚJ~~
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($richardsonandoleary.com
greg($richardsonandoleary.com
RECE n
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Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
Fall River Rural Electric Coopertive, Inc.
Complainant,
IDAHO POWER COMPANY,
Defendant.
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) Case No..:..--tp-'3 r
)
) FORMAL COMPLAINT
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vs.
1 INTRODUCTION
2 This is a formal complaint fied by Fall River Rural Electric Cooperative, Inc. ("Fall
3 River REC") with the Idaho Public Utilties Commission (the "Commission") pursuant to Idaho
4 Administrative Rules 31.01.01.054. Fall River REC requested that Idaho Power Company
5 ("Idaho Power") execute a stadard Public Utilty Regulatory Policies Act of 1978 ("PURP A")
6 power purchase agreement ("PPA") for qualifying facilties ("QFs") under 1 0 average monthly
7 mega-watts ("aMW") for Fall River REC's small power QF. Because Idaho Power has not
8 negotiated in good faith in response to Fall River REC's attempt to obligate itself to the terms of
9 a standard PP A at the published avoided cost rates, Fall River REC respectfully requests that the
10 Commission issue a declaratory judgment that Fall River REC is entitled to such a PPA and
P~e 1 - FORMAL COMPLAINT
1 fuher requests that the Commission order Idaho Power to enter into a PP A at the rates in effect
2 on the date of this fiing (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 Fall River REC at:
6 Peter J. Richardson7 Gregory M. Adams8 Richardson & O'Leary, PLLC9 515 N. 27th Street10 P.O. Box 721811 Boise, Idaho 8370212 Telephone: [phone] Fax: [phone]
peter(ßrichardsonandolear.com14 greg(ßrichardsonandoleary.com
15
16 In support of this Complaint, Fall River REC 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 I.C. § 61-129. Idaho Power is subject to the jurisdiction ofthe Commission, the
22 Public Utility Commission of Oregon, and the Federal Energy Regulatory Commission
23 ("FERC").
24 2.Fall River Rural Electric Cooperative, Inc. is a electric cooperative organized as a
25 corporation duly authorized to conduct business in the State of Idaho, and has the rights to
26 develop and dispose of the output of the Chester Diversion Hydroelectrc Project, which is a
27 qualifying facility under the Public Utility Regulatory Policies Act of 1978.
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JURISDICTION
3. This case involves PURP A'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 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 utility 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 utilty, also commits the electric utilty 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 ~ 61,148, at p. 10-11 (November 19,2009).
FACTUAL BACKGROUND
5. Fall RiverREC, and its predecessors, have been actively engaged in the
development of the 3.6 MW Chester Diversion Hydroelectrc Project ("Chester Diversion Project")
Page 3 - FORMAL COMPLAINT
1 near Ashton, Idaho. The project has a nameplate capacity rating of 3.6 MW, and will therefore
2 generate no more than 10 average monthly mega-watts.
3 6. Fall River REC, and its predecessors, have made substatial efforts in
4 development of the project, and the project is mature and entitled to obligate itselfto a long-term
5 PPA for a PURPA QF under 10 aMW entitled to the published rates. Fall River REC curently
6 possesses a license to operate the Chester Diversion Project under the Federal Power Act, as well as
7 the necessar state law water rights, and county zonig and constrction permits. The project is
8 scheduled to be complete and online in the sumer of 20 11.
9 7. Fall River REC contacted with Idaho Power regarding the project and its specifics
lOin an attempt to secure a 4-year PURP A PPA at the non-Ievelized published rates. Fall River
11 REC proposed to interconnect the Chester Diversion Project with its own system and wheel the
12 output through Bonnevile Power Adminstration ("BP A") for delivery of the output to Idaho
13 Power's system at the Goshen substation.
14 8. Fall River REC intended to obligate itself to enter into the stadard PURPA PPA
15 at a time when the rates in Order No. 31025 were applicable to its project, by providing Idaho
16 Power with the specifics of the hydro-proj ect, its interconnection, its transmission, and sale of its
17 output to Idaho Power under a stadard PURP A PP A contaning all of the terms and conditions
18 approved by the Commission. Fall River REC hereby reiterates its intent to obligate itself to the
19 requested PPA.
20 9. Despite Fall River REC's efforts, Idaho Power has acted in bad faith.
21 10. Specifically, after the close of business on Friday, November 5, 2010, Fall River
22 REC learned of Idaho Power's joint petition and motion, with Rocky Mountain Power and
23 Avista Corporation, fied in Commission Case No. GNR-E-1O-04, requesting the Commission
Page 4 - FORMAL COMPLAINT
1 immediately lower the eligibility cap for published rates from 10 aMW to 100 kilowatts of
2 nameplate capacity. Idaho Power acted in bad faith by failing to notify Fall River REC that it
3 would file this Joint Motion to lower the eligibilty cap for published avoided cost rates prior to
4 executing the PPA to which Fall River REC has attempted to obligate itself.
5 11. Indeed, Idaho Power provided Fall River REC with no advance notice of its intent
6 to request that the Commission make the PP A sought by Fall River REC unavailable, and fied
7 that Joint Motion prior to even responding to Fall River REC's request for a PPA. It is therefore
8 obvious that Idaho Power does not intend to enter into the requested PP A, despite its legal
9 obligation to do so.
10 LEGAL CLAIM
11 Complainant's Claim for Relief
12 Idaho Power is in violation of PURP A, FERC's regulations and orders, and the
13 Commission's orders by failing to provide Fall River REC with a power purchase
14 agreement with published avoided cost rates in Order No. 31025.
15 12. Fall River REC re-alleges and incorporates all preceding paragraphs.
16 13. Fall River REC has attempted in good faith to engage in negotiations to obtain a
17 fully executed power purchase agreement to deliver energy and -capacity to Idaho Power from the
18 Chester Diversion Project.
19 14. Fall River REC committed itself to sell energy and capacity from its QF to Idaho
20 Power at a time when the rates in Order No. 31025 were applicable to its QF, and, consequently,
21 Fall River REC committed Idaho Power to buy from the QF at those rates.
22 15. These commitments result in non-contractual, but binding, legally enforceable
23 obligations. 18 C.F.R. § 292.304(d)(2)(ii); JD Wind 1, LLC, 129 FERC ~ 61,148, at pp. 10-11.
Page 5 - FORMAL COMPLAINT
1 16.By negotiating in bad faith and by failing to execute a PP A, Idaho Power is in
2 violation ofPURPA, FERC's implementing regulations, and the Commssion's orders. See 16
3 U.S.C. § 824a-3(a)(2); 18 C.F.R. § 292.304(d)(2)(ii); Blind Canyon Aquaranch v. Idaho
4 Power Company, Case No. IPC-E-94-1, Order No. 25802 (November 1994).
5 PRAYER FOR RELIEF
6 WHEREFORE, Fall River REC respectfully requests that the Commission issue an
7 Order:
8 1.Declaring that Idaho Power is in violation ofPURPA, FERC's implementing
9 regulations, and the Commission's orders.
10 2.Requiring Idaho Power to execute a stadard PURP A power purchase agreement
11 with Fall River REC at Idaho Power's avoided cost rates on file for QFs under 10 aMW in Order
12 No. 31025.
13 3.Granting any other relief that the Commission deems necessar.
~
Respectfully submitted ths (( day of November 2010.
RICHARDSON AND O'LEARY, PLLC~
t J. Richardson (ISB No: 3195)
Grego M. Adams (ISB No. 7454)
Attorneys for Complainant
Page 6 - FORMAL COMPLAINT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on th~day of November, 2010, a tre and correct copy of
the within and foregoing FORMAL COMPLAINT BY FALL RIVER RURAL ELECTRIC
COOPERATIVE, INC. was served by HAND DELIVERY, to:
Jean Jewell
Commission Secreta
Idaho Public Utilities Commission
472 West Washington
Boise, Idaho 83702
J ean.jewell(ßpuc.idaho. gov
04
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Page 7 - FORMAL COMPLAINT