20101108Complaint.pdf

~r.~l"ATTORNEYS AT LAW
Peter Richardson
Tel: [phone] Fax: [phone]
pete tli t ichardso nandol eary. com
P.O. Box n18 Boise.1D 83707 - 515 N. 27th Sr. Boise, ID 83702
November 8, 2010
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, 1083702
CASE NO.:¡C -Î5 -iØ-3~
Dear Ms. Jewell:
191DNHV -8 PM 2:.26
We are enclosing an Original and seven (7) copies of the FORMAL COMPLAINT
OF BRAVO WIND, LLC vs IDAHO POWER COMPANY.
Please let us know if you have any questions. Thank you.
Sincerely,~WA~\
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(frichardsonandolear.com
greg(frichardsonandolear.com
R. i:rFl .-i- ",¿J_
lOIO NOV -8 PM 2: 26
IDAHO
UTiLITIES
Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
Bravo Wind, LLC,
Complainant,
vs.
)
) Case No. :s-G-It)- 3.3
)
) FORML COMPLAINT
)
)
)
)
IDAHO POWER COMPANY,
Defendant.
1 INTRODUCTION
2 This is a formal complaint filed by Bravo Wind, LLC with the Idaho Public Utilties
3 Commission (the "Commission") pursuat to Idaho Administrative Rules 31.01.01.054. Bravo
4 Wind, LLC requested that Idaho Power Company ("Idaho Power") execute a stadard Public
5 Utilty Regulatory Policies Act of 1978 ("PURP A") power purchase agreement ("PP A") for
6 qualifying facilities ("QFs") under 1 0 average monthly mega-watts ("aMW") for Bravo Wind,
7 LLC's renewable energy QF. Because Idaho Power has not negotiated in good faith in response
8 to Bravo Wind, LLC's attempt to obligate itself to the terms ofa standard PPA at the published
9 avoided cost rates, Bravo Wind, LLC respectfully requests that the Commission issue a
10 declaratory judgment that Bravo Wind, LLC is entitled to such a PP A and fuher requests that
Page 1 - FORMAL COMPLAINT
1 the Commission order Idaho Power to enter into a PP A at the rates in effect on the date of this
2 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 Bravo Wind, LLC at:
6 Peter J. Richardson7 Gregory M. Adams8 Richardson & O'Lear, PLLC9 515 N. 27th Street10 P.O. Box 7218n Boise, Idaho 8370212 Telephone: [phone] Fax: [phone]
peter(frichardsonandolear .com14 greg(frichardsonandoleary.com
15
16 In support of this Complaint, Bravo Wind, 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 Commission
21 pursuat to LC. § 61-129. Idaho Power is subject to the jursdiction of the Commission, the
22 Public Utility Commission of Oregon, and the Federal Energy Regulatory Commission
23 ("FERC").
24 2.Bravo Wind, LLC is a Delaware limited liabilty company, duly registered to
25 conduct business in the State ofIdaho. Bravo Wind, LLC's address is Bravo Wind, LLC, c/o
26 Cotterel WindEnergy Center, LLC, 150 N. Dairy Ashford, Building C, Suite 356D, Houston,
27 Texas 77079. Bravo Wind, LLC has the rights to develop and dispose of the output of the Bravo
Page 2 - FORMAL COMPLAINT
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Wind, 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 utilities, including PURPA rates. LC. §§ 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, LC. § 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 itselfto sell to an electrc 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 ofIntent 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. Bravo Wind, LLC, and its predecessors, have been actively engaged in the
development of the Bravo Wind, LLC wind project. The project has a nameplate capacity rating
of29.9 MW, and is designed to generate no more than 10 average monthly mega-watts.
6. Bravo Wind, LLC, and its predecessors, have made substatial investments in
development of the project, and the project is mature and entited to obligate itselfto a long-term
PPA for a PURP A QF under 10 aMW entitled to the published rates.
7. Bravo Wind, 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 and sale of
its output. Bravo Wind, LLC has the rights to interconnect to Idaho Power's system with other
QFs, which will all utilize a single point of delivery under Large Generator Interconnection
Request No. 302. That request secured interconnection and transmission rights for up to 177
MW of capacity.
8. Bravo Wind, LLC obligated itself to enter into the stadard PURPA PPA at a time
when the rates in Order No. 31025 were applicable to its project, by delivering to Idaho Power a
stadard PURP A PP A for the project executed by Bravo Wind, LLC.
9. Despite Bravo Wind, 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, when Bravo Wind, LLC has the right to use the interconnection and
transmission rights secured under Request No. 302.
10. Additionally, afer the close of business on Friday, November 5, 2010, Bravo
Wind, LLC leared of Idaho Power's joint petition and motion, with Rocky Mountain Power and
Avista Corporation, filed in Commission Case No. GNR-E-1O-04, requesting the Commission
Page 4 - FORML COMPLAINT
1 immediately lower the eligibilty cap for published rates from 10 aMW to 100 kilowatts of
2 nameplate capacity. Idaho Power acted in bad faith by failing to notify Bravo Wind, LLC that it
3 would file this Joint Motion to lower the eligibility cap for published avoided cost rates prior to
4 executing the PP A submitted by Bravo Wind, LLC.
5 11. Idaho Power provided Bravo Wind, LLC with no advance notice of its intent to
6 request that the Commission make the PP A sought by Bravo Wind, LLC unavailable.
7 LEGAL CLAIM
8 Complainant's Claim for Relief
9 Idaho Power is in violation of PURP A, FERC's regulations and orders, and the
10 Commission's orders by failng to provide Bravo Wind, LLC with a power purchase
11 agreement with published avoided cost rates in Order No. 31025.
12 12. Bravo Wind, LLC re-alleges and incorporates all preceding paragraphs.
13 13. Bravo Wind, LLC has attempted in good faith to engage in negotiations to obtain
14 a fully executed power purchase agreement to deliver energy and capacity to Idaho Power from
15 the Bravo Wind, LLC wind project and provided Idaho Power with an executed PPA for the
16 project.
17 14. Bravo Wind, LLC committed itself to sell energy and capacity from its QF to
18 Idaho Power at a time when the rates in Order No. 31025 were applicable to its QF, LLC, and,
19 consequently? Bravo Wind, LLC committed Idaho Power to buy from the QF at those rates.
20 15. These commitments result in non-contractual, but binding, legally enforceable
21 obligations. 18 C.F.R. § 292.304(d)(2)(ii); JD Wind 1, LLC, 129 FERC ~ 61,148, at pp. 10-11.
22 16. By negotiating in bad faith and by failing to execute a PP A, Idaho Power is in
23 violation ofPURPA, FERC's implementing regulations, and the Commission's orders. See 16
Page 5 - FORMAL COMPLAINT
1 U.S.C. § 824a-3(a)(2); 18 C.F.R. § 292.304(d)(2)(ii); Blind Canyon Aquaranch v. Idaho
2 Power Company, Case No. IPC-E-94-1, Order No. 25802 (November 1994).
3 PRAYER FOR RELIEF
4 WHEREFORE, Bravo Wind, LLC respectfully requests that the Commission issue an
5 Order:
6 1.Declaring that Idaho Power is in violation ofPURPA, FERC's implementing
7 regulations, and the Commission's orders.
8 2.Requiring Idaho Power to execute a standard PURP A power purchase agreement
9 with Bravo Wind, LLC at Idaho Power's avoided cost rates on file for QFs under 10 aMW in
10 Order No. 31025.
11 3.Granting any other relief that the Commission deems necessar.
1'):
Respectfully submitted this '6 day of November 2010.
RICHARDSON AND O'LEARY, PLLC
Peter J. Richar son (ISB No: 3195)
Gregory M. Adams (ISB No. 7454)
Attorneys for Complainant
Page 6 - FORMAL COMPLAINT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 8th day of November, 2010, a true and correct copy of
the within and foregoing FORMAL COMPLAINT BY BRAVO WIND, LLC was served by
HAND DELIVERY, to:
Jean Jewell
Commission Secretay
Idaho Public Utilities Commission
472 West Washington
Boise, Idaho 83702
Jean.jewell(iuc.idaho. gov~
M.Adams