20101108Complaint.pdf

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ATTORNEYS AT LAW ZOlûHUY -8 PH 2: 27
Peter Richardson
Tel: [phone] Fax: [phone]
pete rli r ic hardsonandol eary. co m
P.O. Box 7218 Boise, ID 83707 - 515 N. 27rh Sr. Boise, lD 83702
November 8,2010
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, 10 83702
CASE No:;f C- Ë -to -6 i.
Dear Ms. Jewell:
We are enclosing an Original and seven (7) copies of the FORMAL COMPLAINT
OF CHARLIE WIND, LLC vs IDAHO POWER COMPANY.
Please let us know if you have any questions. Thank you.
Sincerely,
~MÚV~(
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
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2BIBNOV - 8 PH. 2= 27
Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
Charlie Wind, LLC,
Complainant,~ Case No. :te. -'5-lD--3~
)
) FORMAL COMPLAINT
)
)
)
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vs.
IDAHO POWER COMPANY,
Defendant.
1 INTRODUCTION
2 Ths is a formal complaint fied by Charlie Wind, LLC with the Idaho Public Utilities
3 Commission (the "Commission") pursuant to Idaho Administrative Rules 31.01.01.054. Charlie
4 Wind, LLC requested that Idaho Power Company ("Idaho Power") execute a stadard Public
5 Utility Regulatory Policies Act of 1978 ("PURP A") power purchase agreement ("PP A") for
6 qualifying facilties ("QFs") under 10 average monthly mega-watts ("aMW") for Charlie Wind,
7 LLC's renewable energy QF. Because Idaho Power has not negotiated in good faith in response
8 to Charlie Wind, LLC's attempt to obligate itself to the terms of a standard PPA at the published
9 avoided cost rates, Charlie Wind, LLC respectfully requests that the Commission issue a
10 declaratory judgment that Charlie Wind, LLC is entitled to such a PP A and fuher requests that
Page 1 - FORML 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 Charlie Wind, LLC 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(frichardsonandoleary .com14 greg(frichardsonandoleary.com
15
16 In support of this Complaint, Charlie 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 jursdiction and regulation of the Idaho Public Utilities Commission
21 pursuant to I.C. § 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.Charlie Wind, LLC is a Delaware limited liabilty company, duly registered to
25 conduct business in the State ofIdaho. Charlie Wind, LLC's address is Charlie Wind, LLC, c/o
26 Cotterel WindEnergy Center, LLC, 150 N. Dairy Ashford, Building C, Suite 356D, Houston,
27 Texas 77079. Charlie Wind, LLC has the rights to develop and dispose of the output of the
Page 2 - FORMAL COMPLAINT
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Charlie Wind, LLC wind project, which is a qualifying facility under the Public Utility
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.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
utility contracts pursuant Idaho's Declaratory Judgment Act, I.C. § 10-1203. See Utah Power
and Light v. Idaho Pub. Utilities 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
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 electric utilty, 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
1 FACTUAL BACKGROUND
2 5. Charlie Wind, LLC, and its predecessors, have been actively engaged in the
3 development of the Charlie Wind, LLC wind project. The project has a nameplate capacity
4 rating of27.6 MW, and is designed to generate no more than 10 average monthly mega-watts.
5 6. Charlie Wind, LLC, and its predecessors, have made substantial investments in
6 development of the project, and the project is mature and entitled to obligate itselfto a long-term
7 PP A for a PURP A QF under 10 aMW entitled to the published rates.
8 7. Charlie Wind, LLC, and its predecessors, have been in contact with Idaho Power
9 for a substantial amount of time regarding the site and the specifics of interconnection and sale of
10 its output. Charlie Wind, LLC has the rights to interconnect to Idaho Power's system with other
11 QFs, which wil all utilize a single point of delivery under Large Generator Interconnection
12 Request No. 302. That request secured interconnection and transmission rights for up to 177
13 MW of capacity.
14 8. Charlie Wind, LLC obligated itself to enter into the stadard PURP A PP A at a
15 time when the rates in Order No. 31025 were applicable to its project, by delivering to Idaho
16 Power a standard PURP A PP A for the project executed by Charlie Wind, LLC.
17 9. Despite Charlie Wind, LLC's efforts, Idaho Power has acted in bad faith by
18 requiring completion of unecessary interconnection processes and transmission service requests
19 prior to executing the PP A, when Charlie Wind, LLC has the right to use the interconnection and
20 transmission rights secured under Request No. 302.
21 10. Additionally, after the close of business on Friday, November 5, 2010, Charlie
22 Wind, LLC leared of Idaho Power's joint petition and motion, with Rocky Mountain Power and
23 Avista Corporation, filed in Commission Case No. GNR-E-1O-04, requesting the Commission
Page 4 - FORML COMPLAINT
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immediately lower the eligibility cap for published rates from 10 aMW to 100 kilowatts of
nameplate capacity. Idaho Power acted in bad faith by failing to notify Charlie Wind, LLC that
it would fie this Joint Motion to lower the eligibility cap for published avoided cost rates prior to
executing the PP A submitted by Charlie Wind, LLC.
11. Idaho Power provided Charlie Wind, LLC with no advance notice of its intent to
request that the Commission make the PP A sought by Charlie Wind, LLC unavailable.
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 Charlie Wind, LLC with a power purchase
agreement with published avoided cost rates in Order No. 31025.
12. Charlie Wind, LLC re-alleges and incorporates all preceding paragraphs.
13. Charlie Wind, 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 Charlie Wind,. LLC wind project and provided Idaho Power with an executed PP A for the
project.
14. Charlie Wind, 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, LLC, and,
consequently, Charlie Wind, LLC committed Idaho Power to buy from the QF at those rates.
15. These commitments result in non-contractul, but binding, legally enforceable
obligations. 18 C.F.R. § 292.304(d)(2)(ii); JD Wind 1, LLC, 129 FERC ~ 61,148, at pp. 10-11.
16. By negotiating in bad faith and by failing to execute a PP A, Idaho Power is in
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, Charlie 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 Charlie 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.
~
Respectfully submitted this ~ day of November 2010.
RICHARSON AND O'LEARY, PLLCt/Q,~Peter J. Richardson (ISB No: 3195)
Gregory M. Adams (ISB No. 7454)
Attorneys for Complainant
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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 CHARIE WIND, LLC was served by
HAND DELIVERY, to:
Jean Jewell
Commission Secretar
Idaho Public Utilities Commission
472 West Washington
Boise, Idaho 83702
J ean.j ewell(fpuc. idaho. gov