20110802Complaint.pdf

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]
peteraYnchardsonandoleary.com
gregaYrichardsonandoleary .com
REceIVED
lfli AUG..
2 AHII: 42
Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
PV SOLAR TWO, LLC,
Complainant,
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Case No.J PC-- E -1 /- / S-
vs.
IDAHO POWER COMPANY,
Defendant.
FORMAL COMPLAINT
OF GRAND VIEW PV SOLAR TWO,
LLC
1 INTRODUCTION
2 This is a formal complaint filed by Grand View PV Solar Two, LLC with the Idaho
3 Public Utilities Commission (the "Commission") pursuat to Idaho Administrative Rule
4 31.01.01.054. Grand View PV Solar Two, LLC ("Grand View") requested that Idaho Power
5 Company ("Idaho Power") execute a standard Public Utility Regulatory Policies Act of 1978
6 ("PURP A") power purchase agreement ("PP A") for qualifying facilties ("QFs"). Grand View is
7 a proposed twenty megawatt solar project located in Elmore County, Idaho. It has pncing
8 according to Idaho Power's IRP methodology. It has an anticipated on line date in the summer
9 of2012. Idaho Power has not negotiated in good faith in response to Grand View's attempt to
10 include terms in the standard PP A to the effect that Idaho Power does not own the environmental
Page 1 - FORMAL COMPLAIT
1 attributes associated with the electrical production from Grand View's proposed solar electnc
2 PURP A project.
1 Grand View respectfully requests the Commission issue a declaratory judgment
3 that it is entitled to a PP A with a clause in which Idaho Power explicitly disclaims ownership of
4 the environmental attributes.
5 PRELIMINARY MATTERS
6 Copies of all pleadings and other correspondence in this matter should be served upon
7 counsel for Grand View PV Solar Two, LLC at:
8 Peter J. Richardson9 Gregory M. Adams10 Richardson & O'Lear, PLLC11 515 N. 27th Street12 P.O. Box 721813 Boise, Idaho 8370214 Telephone: [phone] Fax: [phone]
peteraYrichardsonandoleary.com
16 gregaYrichardsonandoleary.com
17
18 In support of this Complaint, Grand View PV Solar Two, LLC alleges as follows:
19 IDENTITY OF PARTIES
20 1.Idaho Power is an Idaho Corporation with its principal place of business at 1221
21 West Idaho Street, Boise, Idaho 83702. Idaho Power Company is an electric company and a
22 public utility subject to the jurisdiction and regulation of the Idaho Public Utilities Commission
23 pursuant to LC. § 61-129. Idaho Power is subject to the jurisdiction of this Commission, the
24 Public Utility Commission of Oregon, and the Federal Energy Regulatory Commission
25 ("FERC").
26 2.Grand View PV Solar Two, LLC is an Idaho limited liability company, duly
27 registered to conduct business in the State of Idaho. Grand View has the rights to develop and
i Commonly Referred to in the electric utilty industr as "Green Tags" or RECs ("Renewable Energy Credits").
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dispose of the output of the Grand View PV Solar Two 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's 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.e. § 10-1203. See Utah Power
and Light v. Idaho Pub. Utilties Commission, 112 Idao 10, 12, 730 P.2d 930,932 (1986).
FACTUAL BACKGROUND
5. Grand View PV Solar Two, LLC, has been actively engaged in the development
of a solar electric generating project near to Grand View, Idaho that is designed to generate 20
MW of nameplate capacity.
6. Grand View PV Solar Two, LLC, has made substantial investments in
development of the project. The project is matue and entitled to obligate itself to a long-term
PPA for a PURPA QF pursuant to Idaho Power's IRP calculated avoided cost rates.
7. Grand View has been in contact with Idaho Power for several months discussing
contract terms and conditions.
8. Grand View PV Solar Two is ready and wiling to enter into the standard PURPA
PP A with IRP calculated rates that disclaims REC ownersllip by Idaho Power.
P~e 3 - FORMAL COMPLAIT
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9. Idaho Power refuses to enter into the standard PURP A PP A that disclaims REC
ownership by Idaho Power.
10. Historically Idaho Power has routinely executed, and this Commission has
routinely approved, PURP A PP As in which Idaho Power disclaims REC ownership.
11. Idaho Power has offered, and Grand View PV Solar Two has refused, to split
REC ownership between Idaho Power and Grand View PV Solar Two on a fifty/fifty percent
basis.
12. Idaho Power has offered, and Grand View PV Solar Two has refused, to split
REC ownership wholly to Grand View PV Solar Two for years one through ten of the PP A and
then wholly to Idaho Power in years eleven through twenty of the PP A.
13. Grand View PV Solar Two seeks a contract in which REC ownership is
disclaimed by Idaho Power.
14. Idaho Power has offered Grand View PV Solar Two a PPA with alternative
language for the Commission's consideration to the effect that the REC ownership question wil
be determined subsequent to the execution of the agreement pursuant to future law and/or
regulatory edict.
15. A PP A with the uncertainty surounding the contract term reopener identified in ~
14 above makes it commercially impossible to market the RECs as there will remain a cloud as
to the project's long term rights to own, and hence sell, the RECs.
P~e 4 - FORMAL COMPLAIT
1 LEGAL CLAIM,
2 Complainant's Claims for Relief
3 Idaho Power is in violation of PURP A, FERC's regulations and orders, and the
4 Commission's orders by insisting on language in the power purchase agreement which
5 makes REC ownership subject to subsequ'ent changes in the law.
6 15. Grand View PV Solar Two, LLC re-alleges and incorporates all preceding
7 paragraphs.
8 16. Grand View PV Solar Two has attempted in good faith to engage in negotiations
9 to obtain the contract language that has historically been included in Idaho Power's PPAs to the
10 effect that Idaho Power disclaims ownership of any of the RECs associated with its QF project.
11 17. The regulations promulgated by FERC provide that qualifying facilities may elect
12 to have the rate and the terms and conditions of purchase at which it sells electricity to a public
13 utility based the utility's predicted avoided costs at the time of delivery, but calculated at the
14 time the obligation is incured.
15 18. The rates and terms and conditions of the PPA are not subject to ongoing
16 regulation and may not be subsequently amended.
17 19. Idaho Power's insistence on language in the PP A that it may be amended to
18 account for subsequent changes in the law relating to REC ownership violates PURP A and its
19 implementing regulations and is ilegal and uneasonable.
20 20. By insisting on a contract 'reopener' the power company is attempting to make
21 the QF contract subject to utility-type regulation which is prohibited under PURPA.
22 21. The State of Idaho has not created RECs.
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22. The State of Idaho has not imposed a renewable portfolio standard on utilities
operating in Idaho.
23. There are no Idaho based RECs.
24. REC markets exist in surrounding states and elsewhere in the country.
25. Idaho Power's insistence on a contract reopener for REC ownership prevents
Grand View PV Solar Two from marketing its RECs in surounding states and elsewhere.
26. Idaho Power is exercising its power as a monopolist to prevent Grand View from
accessing interstate markets for its private property.
27. Idaho Power is unreasonably destroying the market value of Grand View PV
Solar Two's RECs for no valid purose.
28. Grand View PV Solar Two's business opportunities are being uneasonably
interfered with by Idaho Power's actions.
PRAYER FOR RELIEF
WHEREFORE, Grand View PV Solar Two, LLC r~spectfully requests that the
Commission issue an Order:
1. Declaring that Idaho Power is in violation ofPURPA, FERC's implementing
regulations, and the Commission's orders.
2. Requiring Idaho Power to resume inserting language in standard PURP A PP As to
the effect that Idaho Power makes no claim to REC ownership.
3. Granting any other relief that the Commission deems necessary.
P~e 6 - FORMAL COMPLAIT
1 Respectfully submitted this 2nd day of August, 2011
2 RICHARDSON AND O'LEARY, PLLC
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Peter J. Richardson ISB No. 3195)
Gregory M. Adams (ISB No. 7454)
Page 7 - FORMAL COMPLAIT