20101108Complaint.pdf

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ATTORNEYS AT LAW ZßJUHOV -8 ?f1 2: 28
Peter Richardson
Tel: [phone] Fax: [phone]
pete rli r ich ardso n an d 01 e ary. co m
P.O. Box 7218 Boise,ID 83707 . 515 N. 27th St. Boise.ID 83702
November 8, 2010
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, 1083702
CASE NO.::e- -E -l o-3L
Dear Ms. Jewell:
We are enclosing an Original and seven (7) copies of the FORMAL COMPLAINT
OF ECHO WIND, LLC vs IDAHO POWER COMPANY.
Please let us know if you have any questions. Thank you.
Sincerely,~~ÛM~(
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(irichardsonandolear.com
2DlDNOV - 8 PM 2= 28
Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IDAHO POWER COMPANY,
Defendant.
)
) Case No. :;C-- ---3:b
)
) FORMAL COMPLAINT
)
)
)
)
Echo Wind, LLC,
Complainant,
vs.
1 INTRODUCTION
2 This is a formal complaint fied by Echo Wind, LLC with the Idaho Public Utilities
3 Commission (the "Commission") pursuant to Idaho Administrative Rules 31.01.01.054. Echo
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 10 average monthly mega-watts ("aMW") for Echo Wind,
7 LLC's renewable energy QF. Because Idaho Power has not negotiated in good faith in response
8 to Echo Wind, LLC' s attempt to obligate itself to the terms of a standard PP A at the published
9 avoided cost rates, Echo Wind, LLC respectfully requests that the Commission issue a
10 declaratory judgment that Echo Wind, LLC is entitled to such a PP A and fuher requests that the
Page 1 - FORML COMPLAINT
1 Commission order Idaho Power to enter into a PP A at the rates in effect on the date of this fiing
2 (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 Echo Wind, LLC at:
6 Peter J. Richardson7 Gregory M. Adams8 Richardson & O'Leary, PLLC9 515 N. 27th Street10 P.O. Box 721811 Boise, Idaho 83702
12 Telephone: [phone] Fax: [phone]
peter(irichardsonandolear .com14 greg(irichardsonandolear .com
15
16 In support of this Complaint, Echo 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.Echo Wind, LLC is a Delaware limited liability company, duly registered to
25 conduct business in the State ofIdaho. Echo Wind, LLC's address is Echo Wind, LLC, c/o
26 Cotterel WindEnergy Center, LLC, 150 N. Dairy Ashford, Building C, Suite 356D, Houston,
27 Texas 77079. Echo Wind, LLC has the rights to develop and dispose of the output of the Echo
Page 2 - FORMAL COMPLAINT
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Wind, LLC wind project, which is a qualifying facilty 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 jursdiction
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 jursdiction 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 pbwer 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 electrc 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 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. Echo Wind, LLC, and its predecessors, have been actively engaged in the
3 development of the Echo 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. Echo 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. Echo 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. Echo Wind, LLC has the rights to interconnect to Idao Power's system with other QFs,
11 which wil 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. Echo Wind, LLC obligated itself to enter into the standard PURP A PP A 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 Echo Wind, LLC.
17 9. Despite Echo 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 Echo 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, Echo
22 Wind, LLC leared 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 - FORML 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 Echo 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 Echo Wind, LLC.
5 11. Idaho Power provided Echo Wind, LLC with no advance notice of its intent to
6 request that the Commission make the PP A sought by Echo 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 Echo Wind, LLC with a power purchase
11 agreement with published avoided cost rates in Order No. 31025.
12 12. Echo Wind, LLC re-alleges and incorporates all preceding paragraphs.
13 13. Echo 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 Echo Wind, LLC wind project and provided Idaho Power with an executed PPA for the project.
16 14. Echo 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, Echo Wind, LLC committed Idaho Power to buy from the QF at those rates.
19 15. These commitments result in non-contractul, 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 - 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, Echo Wind, LLC respectfully requests that the Commission issue an
5 Order:
6 1.Declaring that Idao 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 Echo 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 8 day of November 2010.
RICHARDSON AND O'LEARY, PLLC
pe~1£it¿iÑo: 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 tre and correct copy of
the within and foregoing FORMAL COMPLAINT BY ECHO WIND, LLC was served by
HAD DELIVERY, to:
Jean Jewell
Commission Secreta
Idaho Public Utilities Commission
472 West Washington
Boise, Idaho 83702
J ean.jewell(ipuc.idaho. gov'Ci, M.Adams