20101108Complaint.pdf

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ATTORNEYS AT LAW
Peter Richardson UTld¥r~!~O
Tel: [phone] Fax: [phone]
pete rli r ichardsonandol eary. com
P.O. Box 7218 Boise. ID 83707 - 515 N. 27th St. Boise. 10 83702
November 8, 2010
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilties Commission
472 W. Washington
Boise, 10 83702
CASE NO.i:c.-E-l-,3
Dear Ms. Jewell:
We are enclosing an Original and seven (7) copies of the FORMAL COMPLAINT
OF DELTA WIND, LLC vs IDAHO POWER COMPANY.
Please let us know if you have any questions. Thank you.
Sincerely,~(Ytul\\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
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Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
Delta Wind, LLC,
Complainant,
IDAHO POWER COMPANY,
Defendant.
)) Case No. :i Pc- '"_¿O-3S-
)
) FORMAL COMPLAINT
)
)
)
)
vs.
1 INTRODUCTION
2 This is a formal complaint fied by Delta Wind, LLC with the Idaho Public Utilties
3 Commission (the "Commission") pursuant to Idaho Administrative Rules 31.01.01.054. Delta
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 facilities ("QFs") under 1 0 average monthly mega-watts ("aMW") for Delta Wind,
7 LLC's renewable energy QF. Because Idaho Power has not negotiated in good faith in response
8 to Delta Wind, LLC's attempt to obligate itselfto the terms of a standard PPA at the published
9 avoided cost rates, Delta Wind, LLC respectfully requests that the Commission issue a
10 declaratory judgment that Delta Wind, LLC is entitled to such a PP A and fuer requests that
P~e 1 - FORML COMPLAINT
1 the Commission order Idaho Power to enter into a PP A at the rates in effect on the date of ths
2 filing (errata to Order No. 31025).
3 PRELIMINARY MATTERS
4 Copies of all pleadings and other correspondence in ths matter should be served upon
5 counsel for Delta Wind, 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(irichardsonandolear .com
14 greg(irichardsonandoleary.com
15
16 In support of this Complaint, Delta 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 Commssion
21 pursuant to I.C. § 61-129. Idaho Power is subject to the jursdiction ofthe Commission, the
22 Public Utility Commission of Oregon, and the Federal Energy Regulatory Commission
23 ("FERC").
24 2.Delta Wind, LLC is a Delaware limited liability company, duly registered to
25 conduct business in the State ofIdaho. Delta Wind, LLC's address is Delta Wind, LLC, c/o
26 Cotterel WindEnergy Center, LLC, 150 N. Dairy Ashford, Building C, Suite 356D, Houston,
27 Texas 77079. Delta Wind, LLC has the rights to develop and dispose of the output ofthe Delta
Page 2 - FORMAL COMPLAINT
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Wind, LLC wind project, which is a quaifying facility under the Public Utility Reguatory
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
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 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 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 electric 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 - FORMAL COMPLAINT
1 FACTUAL BACKGROUND
2 5. Delta Wind, LLC, and its predecessors, have been actively engaged in the
3 development of the Delta Wind, LLC wind project. The project has a nameplate capacity rating
4 of29.9 MW, and is designed to generate no more than 10 average monthly mega-watts.
5 6. Delta Wind, LLC, and its predecessors, have made substatial investments in
6 development of the project, and the project is matue and entitled to obligate itself to a long-term
7 PPA for a PURP A QF under 10 aMW entitled to the published rates.
8 7. Delta Wind, LLC, and its predecessors, have been in contact with Idaho Power for
9 a substantial amount of time regarding the site and the specifics of interconnection and sale of its
10 output. Delta Wind, LLC has the rights to interconnect to Idaho Power's system with other QFs,
11 which will all utilize a single point of delivery under Large Generator Interconnection Request
12 No. 302. That request secured interconnection and transmission rights for up to 177 MW of
13 capacity.
14 8. Delta Wind, LLC obligated itself to enter into the standard PURPA PPA at a time
15 when the rates in Order No. 31025 were applicable to its project, by delivering to Idaho Power a
16 standard PURP A PP A for the project executed by Delta Wind, LLC.
17 9. Despite Delta 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 Delta 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, Delta
22 Wind, LLC leared of Idaho Power's joint petition and motion, with Rocky Mountan Power and
23 Avista Corporation, filed 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 failng to notify Delta Wind, LLC that it
3 would fie this Joint Motion to lower the eligibilty cap for published avoided cost rates prior to
4 executing the PP A submitted by Delta Wind, LLC.
5 11. Idaho Power provided Delta Wind, LLC with no advance notice of its intent to
6 request that the Commission make the PP A sought by Delta 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 Delta Wind, LLC with a power purchase
11 agreement with published avoided cost rates in Order No. 31025.
12 12. Delta Wind, LLC re-alleges and incorporates all preceding paragraphs.
13 13. Delta Wind, LLC has attempted in good faith to engage in negotiations to obtain a
14 fully executed power purchase agreement to deliver energy and capacity to Idaho Power from the
15 Delta Wind, LLC wind project and provided Idaho Power with an executed PP A for the project.
16 14. Delta Wind, LLC committed itself to sell energy and capacity from its QF to
17 Idaho Power at a time when the rates in Order No. 31025 were applicable to its QF, LLC, and,
18 consequently, Delta Wind, LLC committed Idaho Power to buy from the QF at those rates.
19 15. These commitments result in non-contractual, but binding, legally enforceable
20 obligations. 18 C.F.R. § 292.304(d)(2)(ii); JD Wind 1, LLC, 129 FERC' 61,148, at pp. 10-11.
21 16. By negotiating in bad faith and by failing to execute a PP A, Idaho Power is in
22 violation ofPURPA, FERC's implementing regulations, and the Commission's orders. See 16
Page 5 - FORML 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, Delta 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 stadard PURP A power purchase agreement
9 with Delta 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 necessary.
~
Respectfully submitted this ~ day of November 2010.
RICHARDSON AND O'LEARY, PLLCt.1~
Peter J. Richardson (lSB 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 DELTA WIND, LLC was served by
HAND DELIVERY, to: