20120227Reply Legal Brief.pdf

RECEIVED
.Jr~~r &:(llJ~"1 2Ui? FEB 27 PH~: 25ATTORNEYS AT I.AW
Tel: [phone] Fax: ?O8-938-7904
1'.0. Box 7218 Boi,e, ID 83707 - 515 N. 27th St. Boise, ID 83702
27 Febru 2012
Ms. Jean Jewell
Commssion Secreta
Idaho Public Utilties Commission
472 W. Washington
Boise, ID 83702
RE: SUPREME COURT DOCKET NO. 39151-2011
IPUC CASE NOS. IPC-E-I0-61
IPC-E-I0-62
Dear Ms. Jewell:
Enclosed please find the REPLY LEGAL BRIEF for filing on behalf of the Grouse
Creek Wind Park, LLC (10-61) and Grouse Creek Wind Park II, LLC (10-62) in the
above-referenced docket. We have enclosed an original and eight (8) copies, as well as
an additional copy for you to stap for our records.
Please contact me with any questions.
Sincerely,~~\
Nina M. Curs, Adminstative Assistat
Richardson & O'Lear PLLC
encL.
Peter J. Richardson (ISB No. 3195)
Gregory M. Adams (lSB No: 7454)
Richardson & O'Lear, PLLC
515 N. 27th Street
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
peter~richardsonandolear.com
greg~richardsonandolear.com
Attorneys for Grouse Creek Wind Park, LLC
and Grouse Creek Wind Park II, LLC
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE
APPLICATION OF IDAHO POWER
COMPANY FOR A DETERMINATION
REGARING THE FIRM ENERGY
SALES AGREEMENT FOR THE SALE
AND PURCHASE OF ELECTRIC
ENERGY BETWEEN IDAHO POWER
COMPANY AN GROUSE CREEK
WID PARK, LLC (10-61) AND GROUSE
CREEK WI PAR II, LLC (10-62)
GROUSE CREEK WID PAR, LLC
AND
GROUSE CREEK WID PARK II, LLC,
Petitioners/Appellants,
v.
IDAHO PUBLIC UTILITIES
COMMISSION,
Respondent, Respondent on Appeal,
and
IDAHO POWER COMPANY,
Respondent- Intervenor/Respondent on
Appeal
) SUPREME COURT DOCKET NO.
) 39151-2011
)
)
) IPUC CASE NOS. IPC-E-I0-61) IPC-E-I0-62
)
)
) REPLY LEGAL BRIEF OF GROUSE
) CREEK WID PAR, LLC AND
) GROUSE CREEK WID PAR II,
) LLC
)
)
)
)
)
)
)
)
)
)
)
)
INTRODUCTION
COMES NOW, Grouse Creek Wind Park, LLC and Grouse Creek Wind Park II, LLC,
each of which is managed by Wasatch Wind Intermountan (the "Grouse Creek QF", the
"Grouse Creek II QF," or collectively the "Grouse Creek QFs"), and pursuant to the Idaho Public
Utilities Commssion's ("IPUC's" or "Commssion's") Notice of Scheduling and Notice of Oral
Arguent (Order No. 32191), hereby files ths Legal Brief in the above-captioned matters.l
Pursuant to the IPUC's implementation of the Public Utility Regulatory Policies Act of 1978, the
Grouse Creek QFs attempted to secure executed firm energy sales agreements ("FESAs") with
Idaho Power for several months prior to December 14, 2010. Each QF even filed a Complait
against Idaho Power for its refusal to process the requests timely and in good faith. All material
terms to which the Grouse Creek QFs obligated themselves were very well settled prior to
December 14, 2010, despite the QFs' inabilty to obtain fuly executed documents with Idaho
Power until December 28,2010. The Grouse Creek QFs therefore formed a legally enforceable
obligation (or "LEO") prior to December 14, 2010, entitling them to the avoided cost rates
contained in the FESAs submitted by Idaho Power on December 29,2010 in these cases. This
conclusion results from any reasonable application of the IPUC's past precedent regardig
formation of a LEO, and the Federal Energy Regulatory Commission's ("FERC's") recent
declaratory order in a related matter. See Cedar Creek Wind LLC, 137 FERC ~ 61,006 (2011).
The Grouse Creek QFs therefore respectflly request that the Commission exercise its authority
Pursuat to IPUC Rule of Procedure 247, the Commission has determed to consolidate the above
proceedigs. The Grouse Creek QFs have therefore filed a single Legal Brief.
REPLY LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-I0-61, IPC-E-1O-62
PAGE 2
under I.C. § 61-624 to modify its prior orders, and approve the FESAs for both projects.
ISSUE PRESENTED
Pursuat to the Commssion's Notice of Scheduling and Oral Arguent, the issue presented is
"whether/when a 'legally enforceable obligation' arose" for the Grouse Creek QFs' FESAs?
SHORT ANSWER
FERC's regulations provide that a qualifying facilty ("QF") may enter into a long term
contract or other legally enforceable obligation contang avoided cost rates for the term of
obligation calculated on the date that the QF obligates itself. 18 C.F.R. 292.304(d)(2)(ii). The
Grouse Creek QFs established a LEO prior to December 14,2010, under any reasonable
application of the IPUC's precedent regarding formation ofa LEO, and FERC's recent
declaratory order. See Cedar Creek Wind LLC, 137 FERC ~ 61,006 (2011).
Pursuant to the IPUC's LEO precedent, a LEO arose no later than November 8, 2011. On
that date, the Grouse Creek QFs' filed meritorious Complaits alleging that they obligated
themselves to Idaho Power QF FESAs with stadard terms and published rates approved by the
Commission, but Idaho Power had negotiated in bad faith and failed to execute FESAs. At that
tie, the essential and material terms and conditions of the legally enforceable obligation were
known, and the Grouse Creek QFs agreed to Commission resolution of the only unesolved term
- the amount of delay default securty. Alternatively, the Grouse Creek QFs established a LEO,
at the very latest on December 9, 2011. By that date, afer the filing of the Complaints, every
word in the fmal, wrtten contracts was known and not subject to any dispute to be resolved by
the Commission, or subject to any reasonable misunderstading regarding the contract terms or
the projects' characteristics.
REPLY LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-I0-61, IPC-E-1O-62
PAGE 3
PROCEDURA BACKGROUN
Idaho Power filed the executed FESAs for Commission determination on December 29,
2010. The Grouse Creek QFs filed extensive Comments, supported by the Affdavit and
Exhibits of Chrstine Mikell, on March 24,2011. The Grouse Creek QFs' Comments requested
approval of the agreements as wrtten, relying on 18 C.F.R. § 292.304(d)(2)(ii) and the
Commssion's QF grandfathering precedent. Commssion Sta fied Comments on March 24,
2011, recommending disapproval of the FESAs on the ground they were not fuly executed prior
to December 14,2010. Idao Power filed Reply Comments on March 31, 2011, which set fort
several reasons Idaho Power believed the Commission could reject the FESAs. The Grouse
Creek QFs fied a Motion to Set Time for Oral Arguent on April 7, 2011, in response to
unsupported factu characterizations contaned in Idaho Power's Reply Comments.
Commission Sta and Idaho Power separately filed an Answer and an Objection, respectively,
each opposing Oral Arguent on April 21, 2011. The Commission issued an order on April 27,
2011 (Order No. 32236), determining not to hold Oral Arguent.
The Commission entered its Final Order in ths matter on June 8, 2011 (Order No.
32257). In that order, the Commssion anounced a "bright line rue" that "a Fir Energy Sales
Agreement/ower Purchase Agreement must be executed, i.e., signed by both paries to the
agreement, prior to the effective date of the change in eligibilty criteria." Order No. 32257 at 10.
Notably, the Commission issued several orders in the same time frame, rejectig several other
QF contracts on the same basis, including five contracts entered into between the Cedar Creek
QFs and Rocky Mountain Power. See, generally, Re Determination Regarding Cedar Creek
REPLY LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-1O-61, IPC-E-1O-62
PAGE 4
LLCs Power Purchase Agreements, IPUC Case Nos. PAC-E-II-0l to -05.
The Grouse Creek QFs fied a Joint Petition for Reconsideration on June 29, 2011,
relying again primarily on 18 C.F.R. § 292.304(d)(2)(ii) and the Commission's grandfathering
precedent. The Commission issued a Final Order on Reconsideration on July 27,2011 (Order
No. 32299), again concluding that FESAs were ineffective prior to December 14,2010 because
they were not fuly executed prior to that date. On September 7,2011, the Grouse Creek QFs
fied a Notice of Appeal to the Idaho Supreme Cour, raising the same issues as in their Petition
for Reconsideration.
Concurent with these proceedigs, the Cedar Creek Wind QFs filed a Petition for
Enforcement at FERC, pursuat to 16 U.S.C. § 824a-3(h), challenging the Commission's use of
the "bright line rule," requiring fuly executed contracts for QFs to form a legally enforceable
obligation. See FERC Docket No. ELll-59-000. On October 4,2011, FERC issued a
declaratory order declining to itself intiate enforcement against the IPUC, but determined tht
the IPUC's order and the "bright line rue" were inconsistent with PURPA and FERC's
implementing reguations. Cedar Creek Wind LLC, 137 FERC ~ 61,006. FERC concluded that
the IPUC did not recognze that "a legally enforceable obligation may be incured before the
formal memorialization of a contract to a writing." fd. at ~ 36.
On November 4,2011, the Grouse Creek QFs, the Commission, and Idaho Power fied a
Stipulated Motion to Suspend Appeal and Remand to the Administrative Agency. That Motion
stated: "Given FERC's recent Order, the Pares believe that it is appropriate for the appeal in
ths case to be suspended: (1) to allow the PUC to reconsider its Order in ths case in light of the
REPL Y LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-1O-61, IPC-E-I0-62
PAGE 5
FERC Order; and (2) to provide Pares with an opportty to discuss the possibilty of setting
the appeal." The Supreme Cour remanded the matter to the Commission. The Commission
entered its Notice of Scheduling and Notice of Oral Arguent (Order No. 32191), settng a
briefing schedule in the event that settement could not be reached. The pares were unable to
reach settement, and the matter is now before the Commission for resolution.
MATERIAL FACTUAL BACKGROUND
A. General Background on the Projects and Development
Wasatch Wind began wind monitoring in December 2007, and, on Febru 4, 2008,
finalized wid project leases for the private land encompassing the rights necessar for the wind
project sites at issue in these contract approval dockets. Affdavit of Christine Mikell, at ~~ 4,6,
11.2 Although it had initially considered developing a larger project which would include federal
lands, in sumer of 2010, Wasatch Wind scaled the initial project down to the two smaller 10
average monthy MW ("aMW") QFs on privately owned land separated by at least one mile. fd.
at~~ 43-44.
B. Interconnection and Transmission Rights
Wasatch Wind began interconnection studies and processes in May 2008, and signed an
Interconnection Agreement with Raf River Rural Electrc Cooperative on March 31, 2010, for
interconnection to a 138 kilovolt line leased to BPA by Raft River Rural Electrc Cooperative.
fd. at ~~ 16-20. Although the initial Interconnection Agreement called for interconnection of the
2 The Affdavit of Christine Mikell and its Exhibits, filed March 24,2011 in these dockets, provide a detaled
narative of the Grouse Creek QFs development and contracting efforts, and are incorporated herein by reference to
the extent that those facts ar not reiterated.
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CASE NOS. IPC-E-1O-61, IPC-E-1O-62
PAGE 6
initially planed, single project, Raf River Rural Electrc Cooperative and BPA have
subsequently agreed to amend the Interconnection Agreement to accommodate the two smaller
projects each sized 21 MW. Id. at ~~ 22-23.
With regard to point to point ("PTP") transmission, BP A stated durng the
interconnection studies in 2009 that the amount of capacity Wasatch Wind could interconnect
(93 MW) was the. same as the amount they could deliver to Idaho Power's Minidoka substation
because the applicable transmission line is stranded and not connected to any other par of BP A's
system. See id. at Exhibit D, pp. 1-2. Entering into a PTP service agreement requies
submission of a substantial non-refudable deposit and requires obligatig the Grouse Creek QFs
to ongoing fees for transmission for the entie 20-year term. Id. at ~ 33. Thus, the Grouse Creek
QFs initiated ths process afer the interconnection process to limit irretrevable fiancial
expenditues prior to knowing the QFs would obtain FESAs.
On June 30, 2010, the Projects submitted the necessar applications for BPA's 2010
Network Open Season ("NOS") to achieve the initially projected online date of June 2012, for a
30 MW and a 21 MW project. Id. at ~ 27. Due to confsion in the contracting process with
Idaho Power at that time, Wasatch Wind backed out of the BPA NOS, which would have
required a Performance Assurance $794,376 by August 18, 2010. Id. at ~ 28. As a result,
Wasatch Wind was unable to achieve the initially projected online date of June 2012.
On August 19, 2010, Wasatch Wind made a traditional transmission service request
("TSR") on BPA's OASIS website with a delayed sta date of June 1,2013. Id. at ~ 29. All of
the other parameters of the projects remaied the same. Id. As expected all along, ths process
REPL Y LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-1O-61, IPC-E-I0-62
PAGE 7
proceeded well in advance of the projected online date, and BP A provided two Fir PTP
agreements in March 2011 for the 21 MW Grouse Creek QF and the 21 MW Grouse Creek II
QF. Id. at ~ 31. The Grouse Creek QFs are still awaiting fial approval of their FESAs by the
IPUC prior to executing the BP A transmission agreement.
c. Firm Energy Sales Agreement Negotiations with Idaho Power
Wasatch Wind has been engaged in formal power sales contract discussions with Idaho
Power since at least Febru 26,2010, when it emailed Randy Allphin, ofIdao Power. Id.at ~
34 and Exhibit A. Wasatch Wind described the project, progress though the interconnection
process with BPA, and that it appeared from Idaho Power's OASIS website that adequate
transmission was available on Idaho Power's system from the Mindoka substation to its
Treasure Valley load center. Id. Mr. Allphin stated on March 2,2010, that prior to execution of
a power sales contract, Wasatch Wind must complete execution of an interconnection agreement
and reserve firm transmission on both the BP A and the Idao Power transmission systems to get
the energy from the project to Idaho Power customer loads. Id.
As described above, Wasatch Wind had long since commenced the processes necessar
to interconnect and deliver the output to Idaho Power's system. But under the FERC's approved
Open Access Transmission Tarff ("OATT"), the TSR on Idàho Power's system to its own load
center would be a request by Idaho Power's merchat ar to Idaho Power's transmission ar to
designate generating facilties as network resources. See id. at Exhbit C, pp. 4-5 (describing the
process). As such, Wasatch Wind had no power to lodge ths request internally with Idaho
Power, and once lodged Wasatch Wind would have no direct access to the Idaho Power's
REPLY LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-I0-61, IPC-E-I0-62
PAGE 8
transmission personneL. Unlike its interconnection and PTP transmission requests with BP A for
which Wasatch Wind had direct access to the BPA transmission personnel, Idaho Power's
PURP A contracts admnistrators would handle the TSR on Idaho Power's system.
Wasatch Wind requested that Idaho Power provide it with a PURPA contract for a project
up to 65 MW in April 2010. fd. at ~~ 35-36 and Exhbit B. On June 17,2010, Wasatch Wind
signed a letter or understandig provided by Idaho Power, which stated Idaho Power would not
execute a power sales contract prior to when the Project received confrmation that the results of
the intial Idaho Power transmission capacity application for transmission to its load center are
known and the Project accepts the results. fd. at ~ 37 and Exhbit C, p. 3. The only other
requirements to obtain a power purchase agreement involved interconnection, and Wasatch Wind
had already met those interconnection requirements. fd.
Wasatch Wind was under the impression that Mr. Allphin was working with his team to
make the necessar TSR on Idao Power's system. fd. at ~ 39. On June 25, 2010, Wasatch
Wind again responded to Mr. Allphin that based on studies and conversations with BP A, there
were 93 MW available on the necessar BP A line to the Minidoka substation, and therefore
interconnection and transmission of 65 MW to Idaho Power would not be a problem. fd. at ~~
40,42.
In the June 25, 2010 email, Wasatch Wind also indicated that due to federal permittng
issues, Wasatch Wind intended to reduce its overall footprint and wished to discuss power sales
contracts for two single 10 aMW projects, instead of the larger 65 MW project it had initially
discussed. fd. at ~ 43. On July 14, 2010, Wasatch Wind submitted a formal request for two 10
REPLY LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-I0-61, IPC-E-I0-62
PAGE 9
aMW PURPA contracts to Mr. Allphin. fd. at ~~ 44-45 and Exhbit D. Wasatch Wind
explained the matuty of the Projects in detal, including the Interconnection Agreement which
already had progressed to the Facilties Study stage for constrction, two years of wind data
supportng output projections, final land leases, and explained in detal that BPA had stated
transmission would be available to Idaho Power's Minidoka substation. fd. at Exhbit D.
Wasatch Wind informed Mr. Allphin that on June 30, 2010, Wasatch Wind submitted into
BPA's NOS and that by August 18, 2010, BPA would require Wasatch Wind to post the security
of approximately $800,000 for ths NOS transmission process. fd. at Exhbit D, p. 2. Ths July
14, 2010 letter also requested tht Idao Power investigate availabilty of transmission on its
system to its load center and provided completed Transmission Capacity Application
Questionnaires for each project. fd. at Exhbit D, pp. 2-13. But the letter also explained, "Per
your suggestion, (Wasatch Wind) went ahead and confed on OASIS to the best of our abilty
that there is capacity form Minidoka Substtion to Treasure Valley for Idaho Power to obtan
Network Service on behalf of our Quaifyng Facilties." fd. at Exhbit D, p. 2.
Randy Allphin stated on July 21, 2010 in an e-mail, "I have not been able to submit the
TSR. Been gettng buy in from varous people, looks like I will probably be filing the TSR
sometime next week." fd. at ~ 46 and Exhbit E, p. 1; see also id. at Exhbit E, p. 2 (M.
Allphi's June 29, 2010 email stating his routine process was to ''not develop a draf agreement
for a parcular project until the interconnection and transmission is pinned down"). Afer some
more unsuccessfu communcations, Wasatch Wind became frstated with the lack of progress,
and decided to retai attorneys to assist in the negotiations. fd. at ~~ 47-48.
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CASE NOS. IPC-E-I0-61, IPC-E-1O-62
PAGE 10
Wasatch Wind sent Idaho Power an email on August 17, 2010, in which it clarfied that it
was formally requesting two power sales contracts for PURP A projects, and explained that each
of the Projects would be physically limited such that each would generate no more th 10
average megawatts in a single month. fd. at ~~ 49-50 and Exhbit F. The email also included,
yet again, the two completed Transmission Capacity Application Questionnaires for the two
separate projects. fd. at Exhibit F, pp. 5-16. Ths August 17th email also stated that Wasatch
Wind did "not believe the study process should delay the submission of execution ready power
purchase agreements. With the substatial delay securty being required in recent Idaho Power
PPAs, the risk of our project's failing to come on line due to transmission constraits is
completely mitigated." fd. at Exhbit F, p. 1; see also id. at Exhbit A, P 1 (M. Allphin's March
2010 email describing the delay securty clause). From emails and a telephone conversation in
late August, Wasatch Wind understood there to be a question as to whether Idaho Power would
agree to submit a request to its transmission personnel for both Grouse Creek QFs at the same
time. fd. at ~ 51.
On October 1, 2010, counsel for Wasatch Wind sent a letter to Idaho Power for each
Grouse Creek QF, expressing Wasatch Wind's intent to obligate the QFs to two power sales
agreements for the two QF projects. fd. at ~ 52-57 and Exhbit G. These letters listed several
stadard terms applicable though Commission orders, including the daly and seasonaity load
shape price adjustents (Order No. 30415), as well as the wid integrtion charge, mechancal
availabilty guantee, and wid forecasng and cost sharg provisions (Order No. 30488). fd. at
Exhbit G. The October 18t letters objected to any fuer delay in submittng both TSRs on
REPLY LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-1O-61, IPC-E-1O-62
PAGE 11
Idaho Power's system. fd. The October 1st letters expressed Wasatch Wind's concer also with
the legality of the high $45/k delay liquidated damages securty provision Idao Power had begu
requig, and stted the QFs would agree "to any amount deemed reasonable by the Commission
if Idaho Power insists on a provision requiring Wasatch to post a delay default liquidated
damages securty." fd. at Exhbit G, pp. 3, 11. The October 1st letters provided very detailed
project information for each of the Grouse Creek QFs, and stated that both projects would now
be sized at 21 MW of maximum capacity and again stated they would generate under 10 aMW.
fd. at Exhbit G. Idaho Power did not respond by October 27, 2010, and counsel for Wasatch
Wind sent a follow up letter to Idaho Power on that same date, remiding Idaho Power that it had
stil not even provided draf contracts. fd. at ~ 58 and Exhibit H.
On November 1, 2010, Idaho Power responded with a letter from Mr. Allphin, statig
that he had not yet submitted the TSRs to Idao Power's transmission personneL. fd. at ~~ 59-60
and Exhibit I. Mr. Allphin stated Idaho Power would file TSRs for Grouse Creek Wind Park I
for nameplate ratig of21 MWand Grouse Creek Wind Park II for nameplate ratig of21 MW.
fd. at ~ 61 and Exhibit 1.3 fd. Mr. Allphin's November 1 st letter also expressed Idaho Power's
position that the Projects must agree to a $45/k delay securty amount, and for the first tie
provided a draf stadard FESA for the Projects. fd. Ths FESA contaed the $45/k delay
securty clause. fd. It also required in Section 5.7, that prior to execution of the FESA, with
regard to the TSR for Idaho Power's system, "Results of the initial transmission capacity request
Although Mr. Allphin's November 1, 2010 leter seemed to imply that he had witheld the TSRs on
account of changes in the project sizes, the same changes did not compromise Wasatch Wind's abilty to proceed
though the interconnection and PTP trsmission processes with Raft River Rur Electc Cooperative and BP A.
See id at W 22, 23, 30.
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CASE NOS. IPC-E-1O-61, IPC-E-1O-62
PAGE 12
are known and acceptable to the Seller," and that "Seller must provide evidence that the Seller
has acquied fi transmission capacity from all requied transmittg entities to deliver the
Facilty's energy to an acceptable point of delivery on the Idaho Power electrcal system." fd. at
Exhbit I, pp. 16-17.
The QFs had not met these transmission requirements. In the case of the TSR on Idaho
Power's system, Mr. Allphin had not yet even intiated that process despite repeated requests to
do so since at least June 2010. In the case of BPA, compliance with Idaho Power's requirement
would have required the QFs to obligate themselves to long-term PTP wheeling agreements prior
to any assurance they could secure executed power sales contracts with the published rates.
Then, on November 5, 2010, Idaho Power, along with Avista Utilities and Rocky
Mountan Power, filed the Joint Motion to Reduce the Published Rate Eligibilty Cap. See Case
No. GNR-E-I0-04. The Grouse Creek Wind Park, LLC and the Grouse Creek Wind Park II,
LLC each fied complaints against Idaho Power on November 8, 2010.4 The Complaits alleged
the QFs had "expressed a willngness to agree to a delay securty damages clause reasonably
calculated by the Commission to approximate Idaho Power's damages in the event of a delay
default, and (that each QFJ remain(edJ commtted to such a provision deemed reasonable by the
Commission." Complaints, Case Nos. IPC-E-1O-29 and -30, at ~ 9. Furer, the QFs alleged
that with the "commitment to such a provision, Idaho Power's insistence on completion of the
4 Because the Complaints were fied in separate dockets (IPC-E-I0-29 and -30) from the instant contract
approval dockets (IPC-E-I0-61 and -62), the Complaits were not previously a par of the record in these contract
approval dockets. Therefore, the Grouse Creek QFs are includig the Complaints as attachments to the Affdavit of
Gregory M. Adas, fied contemporaeously with this brief for the convenence of the Commssion. Ths brief will
cite to the Complaits themselves.
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CASE NOS. IPC-E-I0-61, IPC-E-1O-62
PAGE 13
protracted interconnection and transmission processes prior to executig a PPA is uneasonable."
fd.
Afer the Commission did not grant the imediate reduction in the published rate
eligibilty cap, on November 19, 2010, Idaho Power and the QFs agreed to stay the complaint
proceeding and execute stadard QF wind contracts contang the published rates. fd. at ~ 70.
Idaho Power sent a letter dated November 24,2010, acknowledging Wasatch Wind's agreement
to accept the $45/k securty clause, and highighting some provisions of the November 1 st
FESA, including those regarding curlment for system reliabilty puroses. fd. at ~ 71 and
Exhbit J. Idaho Power's November 24th letter requested that the QFs fill in project-specific
information in the November 1 st FE SA and "retu the draf to Idao Power so that the Company
can then initiate the Sarbanes-Oxley contract approval process and generate an executable draf
for signatues." fd.
On December 2, 2010, Wasatch Wind sent a letter and versions of the Idaho Power's
November 1 st contract for each project, contaning all project specifics. fd. at ~ 72 and Exhbit
K.5 Wasatch Wind's December 2nd letter confrmed the pares' agreement tht the FESAs
would not contan the onerous transmission requirements in Section 5.7, but would contan the
$45/k delay securty clauses. fd. at Exhbit K, p. 1. The letter also confed the QFs
understood the provisions of the November 1st FE SA highighted in Idaho Power's November
24th letter. fd. No dispute remained regarding the terms and provisions of the FESAs.
Idaho Power confirmed receipt on December 7, 2010. fd. at ~ 74. On December 9,2010,
5 The Affdavit of Christine Mikell contas a tyo refering to Idaho Power's draft FESA provided
November 1 st as "Idaho Power's November 30th contract." See id at, 72.
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CASE NOS. IPC-E-I0-61, IPC-E-1O-62
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counsel for Wasatch Wind requested though email to Idaho Power tht the FESAs conta
online dates of a First Energy Date of June 2013 and a Commercial Online Date of December
2013, rather than the dates filled in by the QFs in contracts provided on December 2nd, which
were First Energy in December 2012 and Commercial Online Date June 2013. fd. at ~ 75. This
change was consistent with the delay necessar in the wheeling arangements over BP A's system
caused when Wasatch Wind decided not to submit the $794,396 for the 2010 NOS, and instead
proceeded though the traditional TSR on BPA's OASIS in August 2010. See id. at ~~ 27-29.
Idaho Power next contacted the QFs on December 14, 2010, but it only responded to ask
for clarification for the carographic sections with which the QFs were located and for the
identity of the transmittng entity, which items had inadvertently been omitted from blan spaces
in the contracts Wasatch Wind provided on December 2,2010. fd. at ~ 76. However, the Grouse
Creek QFs previously provided the precise carographic sections in the October 1 st letters. See
id. at Exhbit G, pp. 5, 13. And Wasatch Wind had stated tht BPA would be the transmittng
entity on multiple occasions. See id. at Exhbit A, p. 2 (Febru 26,2010), Exhibit C, p. 9 (June
17, 2010); Exhibit D, pp. 1-2, 5, 7, 11, 13 (July 14,2010); Exhbit F, p. 1, 7, 9, 13, 15 (August
17,2010); Exhbit G, pp. 1,6,9, 15 (October 1,2010); Complaints, Case Nos. IPC-E-1O-29 and
-30, at ~ 7 (November 8, 2010).
On December 15, 2010, Idaho Power stated that the online dates provided December 9th
would be included in the contracts, and later that day counsel for the QFs provided the same
information regarding the transmitting entity and the same carographic sections previously
provided. Affdavit of Christine Mikell, at ~ 77. On December 16,.2010, Idaho Power provided
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CASE NOS. IPC-E-I0-61, IPC-E-I0-62
PAGE 15
the executable FESAs, which counsel for Wasatch Wind sent by overnght delivery to Wasatch
Wind, which is not located in Boise. Id. at ~ 78. These versions of the FESAs were consistent
with the pares' agreement, well in advance of December 14,2010, to remove the requirements
in section 5.7 for completion of transmission processes. Id. On December 20,2010, the Grouse
Creek QF and the Grouse Creek II QF executed the FESAs, and sent them by overnght delivery
to Idaho Power. Id. at ~ 79. Idaho Power executed the FESAs on December 28,2010.
LEGAL BACKGROUND
A. The Public Utilty Regulatory Policies Act of 1978's Mandatory Purchase Provisions
Ths case involves the Commission's implementation of the mandatory purchase
obligation of PURP A, which requies electrc utilties to purchase power produced by
cogenerators or small power producers that obtan status as a QF. 16 U.S.C. § 824a-3(a)(2).
Congress's intent "was to encourage the promotion and development of renewable energy
technologies as alternatives to fossil fuels and the constrction of new generatig facilties by
electrc utilties." Rosebud Enterprises, Inc. v. Idaho Pub. Util. Commn., 128 Idao 609, 613,
917 P.2d 766, 780 (1996); see also FERC v. Mississippi, 456 U.S. 742, 750, 102 S.Ct. 2126,
2132-2133 (1982).
The price PURPA section 210(b) requires the utilties to pay to QFs in exchange for a
QF's electrcal output is termed the avoided cost rate, which is the cost to the utility of producing
the energy itself or purchasing it from an alternative source. 16 U.S.C. § 824a-3(b), (d).
FERC's reguations entitle QFs to long term contract rates set at the purchasing utility's ful
avoided costs at the time the QF commts itself to a legally enforceable obligation to deliver its
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PAGE 16
project's output over a specified term. 18 C.F.R. § 292.304(a), (b), (d)(2)(ii); Cedar Creek Wind
LLC, 137 FERC ~ 61,006 at ~~ 30-37; JD Wind 1, LLC, 130 FERC ~ 61,127, ~ 23 (2010); see
also American Paper Institute, Inc. v. FERC, 461 U.S. 402, 417-18, 103 S.Ct. 1911, 1930
(1983). FERC's regulations require utilities to publish "stadard rates" available for long term
contracts available to QFs below a state-implemented maximum generating capacity. 18 C.F.R.
§ 292.304( c)(1 )-(3). The IPUC has traditionally set the eligibilty cap for published avoided cost
rates at 10 average monthly MW. But on Febru 7, 2011, the IPUC reduced the eligibilty cap
to 100 kw nameplate capacity for wind and solar QFs and stated the effective date of ths
reduction would be December 14, 2010. See Order No. 32176, at 11-12.
B. The IPUC's PURP A Grandfathering Precedent Regarding Formation of a Legally
Enforceable obligation.
When the published rates change, or become otherse unvailable to a QF before the QF
can obta a wrtten contrct, the QF is entitled to grandfathered rates if the QF formed a "legally
enforceable obligation" prior to the date the rates became unavailable. 18 C.F.R.
292.304(d)(2)(ii). Under the IPUC's implementation of PURA, a QF obtans grandfathered
rates if it can "demonstrate that 'but for' the actions of (the utility, the QF) was otherwse entitled
to a power purchase contract." Earth Power Resources, Inc. v. Washington Water Power
Company, Case No. WWP-E-96-6, Order No. 27231 (1997) (fmding utility delayed negotiations
and therefore QF was entitled to grandfathered rate); see also Blind Canyon Aquaranch v. Idaho
Power Company, Case No. IPC-E-94-1, Order No. 25802 (1994).
Prior to the "bright line rue" discussed above, the most onerous test the IPUC has ever
used for determining grandfather eligibilty is the pre-fied complait test. Ths test requires,
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PAGE 17
prior to the effective date of the rate change, the QF must have obtaed an executed contract, or
have fied a meritorious complaint at the Commssion alleging it is entitled to a contract. See
A. W Brown Co., Inc. v. Idaho Power Co., 121 Idaho 812, 816-18,828 P.2d 841,845-47 (1992).
The Commission has not applied ths onerous pre-filed complaint test consistently. The
Commission has employed much less onerous tests in the past. See, e.g., Blind Canyon
Aquaranch, Order No. 25802; Earth Power Resources, Inc., Order No. 27231. Indeed, the
Commssion has approved grandfathered rates where no formal writig was even exchanged
prior to the date the previous rates became unavailable. See Re Approval of a Firm Energy Sales
Agreement with Yellowstone Power Company, Order 32104, at 12 (2010) (approvig of
grandfathered rates despite "the apparent lack of any written documentation . . . evidencing that
the terms of a power purchase agreement were materially complete (before the rate change)" in
par because QF had "familarty with PURPA projects and the stadard terms of Idao Power's
power purchase agreements").
C. FERC held that the IPUC's "bright line rule," requiring a signature of both parties
prior to formation of a legally enforceable obligation was inconsistent with 18
C.F.R. 292.304(d)(2)(n), and noted that a legall enforceable obligation can arise
prior to memorialization of a contract to a writing.
In Cedar Creek Wind, FERC held that requiring a fuly executed, wrtten contract to
establish a LEO is inconsistent with 18 C.F.R. § 292.304( d)(2) (ii). FERC explained:
Thus, under our reguations, a QF has the option to commt itself to sell all or par
of its electrc output to an electrc utility. Whle ths may be done though a
contract, if the electrc utility refuses to sign a contract, the QF may seek state
reguatory authority assistace to enforce the PURP A-imposed obligation on the
electrc utility to purchase from the QF, and a non-contractu, but still legally
enforceable, obligation will be created pursuat to the state's implementation of
PURA. Accordingly, a QF, by commttng itself to sell to an electrc utility, also
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PAGE 18
commts the electrc utilty to buy from the QF; these commtments result either
in contracts or in non-contractu, but binding, legally enforceable obligations.
Cedar Creek Wind LLC, 137 FERC ~ 61,006 at ~ 32.
FERC explained that "a legally enforceable obligation may be incured before the formal
memorialization of a contract to wrting." Id. at ~ 36. FERC noted:
Cours have recognzed that negotiations regardig terms that paries to the
negotiations intend to become a finalized or wrtten contract, may in some
circumstaces result in legally enforceable obligations on those paries
notwthstading the absence of a wrting. See generally Burbach Broadcasting
Company of Delaware v. Elkins Radio Corp., 278 F.3d 401,407-09 (4th Cir.
2002); Adjustrite Systems, Inc. v. GAB Business Services, Inc., 145 F.3d 543,547-
50 (2d Cir. 1998); Miler Construction Co. v. Stresstek, 697 P.2d 1201, 1202-04
(Idaho 1985).
Id. at ~ 36 n.62.
ARGUMENT
A. The Grouse Creek QFs each satisfy the Commission's prior grandfather tests for
forming a legally enforceable obligation on November 8, 2010 by filing meritorious
Complaints, or alternatively, no later than December 9, 2010 when all terms were
agreed to by the Grouse Creek QFs and Idaho Power.
The Grouse Creek QFs each entitled themselves to long term contracts with rates set at
the published avoided costs in Order No. 31025 because each QF satisfied the Commission's
grandfathering tests before December 14, 2010.
Each QF satisfies even the most strngent grandfather test ever used by the Commission
because each had a meritorious complaint on fie at the Commssion on November 8,2010. See
A. W Brown Co., Inc., 121 Idaho at 816-18,828 P.2d at 845-47. Although it may seem out of the
ordiar for a par to form a binding contract by fiing a complaint against its contracting
counter par, ths is adittedly and necessarly a unque contractig sitution. In the words of
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PAGE 19
one cour finding a LEO had arsen: "We are not afer all, dealing with completely free
enterprise. We are, rather, dealing with the twlight world of reguated monopolies." Pub.
Service Co. of Oklahoma v. State ex rel. Oklahoma Corp. Commn., 115 P.3d 861, 873 (Okla.
2005) (internal quotation omitted).6 In Idaho, a QF can form a LEO by attemptig to negotiate,
providig the utility with the necessar project information, and filing a complait afer the
utilty refuses to process the request timely and in good faith.
Each Grouse Creek QF's Complait alleged that it attempted to negotiate and committed
itself to Idaho Power's standard QF terms. Complaint at ~ 8. Each also alleged that Idaho
Power's insistence on completion of the protracted transmission processes prior to executig a
PP A was uneasonable because the QFs had expressed willngness to agree to a delay default
liquidated damages securty provision reasonably calculated to offset Idaho Power's actu
damages in the event of a delay default. Id. at ~~ 9, 16.
The allegations in the Complaints were meritorious because the facts asserted therein are
now supported by the record discussed above. Despite dilgent efforts for many months prior to
filing the Complaints, the QFs did not even obtan a draf contract until November 1, 2010,
apparently due to Idaho Power's position that it does not even provide draf contracts until afer
interconnection and transmission are "pinned down." Affdait of Christine Mikell, Exhbit E, p.
2. Even then, the draf contract contaned the onerous requiements that the QFs secure fi
transmission to Idaho Power and proceed though Idaho Power's internal TSR process prior to
execution. The QFs had no trouble progressing though the interconnection and transmission
6 See also Snow Mountain Pine v. Maudlin, 84 Or. App. 590,600, 734 P.2d 1366, 1371 (1987).
REPL Y LEGAL BRIEF OF GROUSE CREEK QFs
CASE NOS. IPC-E-1O-61, IPC-E-1O-62
PAGE 20
processes on BPA's system. But the QFs had no power to begin Idao Power's internal TSR
process, and Idaho Power did not begin that process until November 4, 2010, despite repeated
requests that it do so many months earlier. That Wasatch Wind reduced the capacity of the QFs
caused no problem in the interconnection and transmission processes with Raf River Rural
Electrc Cooperative and BPA, and should not have been a problem for Idaho Power's
transmission personnel's processing either, if Idaho Power had initiated its TSR process when
initially requested. See Affdavit of Christine Mikell at ~~ 22-23,30.
Idaho Power ultimately agred to execute standard PURP A contracts without regard to
the sttus of the transmission processes that had delayed exchange of wrtten contracts for
several months. Furer, the QFs' position on the liquidated daages provision was entirely
consistent with Idaho law and Commission orders. See Magic Valley Truck Brokers, Inc. v.
Meyer, 133 Idao 110, 117,982 P.2d 945,952 (Ct. App. 1999); Order No. 30608. That wrtten
contracts were executed shorty afer filing of the Complaints fuer underscores the merit to the
allegations that the QFs had done everyng in their power to obligate themselves prior to filing
the Complaints.
Additionally, the large sums of money and tie spent on developing the projects and the
advanced stge of their matuty evidences their intent to obligate themselves to the FESAs. See
In the Matter of Cassia Wind to Determine Exemption Status, Case No. IPC-E-05-35, Order No.
29954, 2-4 (2006) (finding wind QF entitled to grandfathered rates based on matuty of
development of project when it had merely submitted a completed application for
interconnection study, including the applicable fee, and had performed wind studies, commenced
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CASE NOS. IPC-E-I0-61, IPC-E-I0-62
PAGE 21
prelimina permittng and licensing activities, and made efforts to secure sites to place
tubines); Affdavit of Christine Mikell at ~~ 12,25. Prior to filing Complaints, the Grouse Creek
QFs had entered into an Interconnection Agreement, had obtaned all necessar real propert
rights for the sites, collected over two years of wind data, conducted extensive wildlife and
vegetation studies, and attempted to negotiate various aspects of the projects with Idaho Power
for almost a year.
Finaly, even if the filing of the Complaints did not create a LEO in ths case, the QFs'
demonstated knowledge and agrement to all of the fina contract terms evidences the intent of
the QFs in ths case to obligate themselves no later than December 9, 2010, under IPUC
grandfather precedent. See Re Approval of a Firm 'Energy Sales Agreement with Yellowstone
Power Company, Order 32104, at 12. The Grouse Creek QFs had obtaned and reviewed a draf
PUR A FESA from Idaho Power on November 1, 2010, a month and a half prior to the rate
chage date, and letters exchanged between the pares on November 24,2010, and December 2,
2010, conf the mutu understding of the terms in the final FESAs. No terms or project
specifics changed afer December 9, 2010. All material terms and project specifics were well
settled and agreed to by the Grouse Creek QFs and Idaho Power by December 9, 2010, and a
LEO arose on or before that date.
B. FERC's Cedar Creek Wind declaratory order compels the Commission to apply its
customary grandfatherig criteria, and determine that the Grouse Creek QFs
formed a legall enforceable obligation prior to December 14,2010.
The remand from the Supreme Cour in ths matter provides the Commssion with the
opportty to apply its prior grandfather criteria to the Grouse Creek QFs FESAs to determine
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CASE NOS. IPC-E-1O-61, IPC-E-1O-62
PAGE 22
when a legally enforceable obligation arose, and modify its prior orders pursuat to I.C. § 61-
624. In its prior orders, the Commssion did not apply its existig grandfather precedent.
Rather, the Commssion anounced a "bright line rule" that "a Firm Energy Sales
Agreement/ower Puchase Agreement must be executed, i.e., signed by both pares to the
agreement, prior to the effective date of the change in eligibilty criteria." Order No. 32257 at 10.
The Commssion stated as follows:
The primar issue to be determed in these cases is whether the Agreements.
which utilize the published avoided cost rate were executed before the eligibilty
cap for published rates was lowered to 100 kW on December 14,2010, for wind
and solar projects. "According to the FERC, 'it is up to the States, not (FERC) to
determine the specific parameters of individua QF power purchase agreements,
including the date at which a legally enforceable obligation is incured under State
law.'" (Rosebud Enterprises, Inc., v. Idaho Public Utilties Commission, 128
Idaho 609, 623-24, 917 P.2d 766, 780-81 (1996)), citig West Penn Power Co., 71
FERC ~ 61, 153 (1995). We find that the Agreements were not fuly executed
(signed by both pares) prior to December 14,2010. More specifically, each Firm
Energy Sales Agreement states that the "Effective Date" of the Agreement is "The
date stated in the openig paragraph of ths Agreement representig the date
upon which ths (Agreement) was fuly executed by both Pares." Agreements ~
1.11. The opening paragraph is dated "this 28 day of December, 2010."
Agreements at 1. It is clear tht the Projects signed the Agreements on December
20, and Idaho Power signed on December 28,2010. Id. at 29. Thus, on the date
the two Agreements became effective, published avoided cost rates were available
only to wind and solar projects with a design capacity of 100 kW or less.
Order No. 32257 at 9.
The Commission acknowledged tht "(t)he Projects also argue tht '(w)hen the published
rates change or become otherwse unavailable to a QF before the QF can obtan a contract, the
QF is entitled to grandfathered rates if it can 'demonstrate that but for the actions of (the utility,
the QF) was otherwse entitled to a power purchase contract.' Comments at 7." Id. Notably, the
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CASE NOS. IPC-E-I0-61, IPC-E-1O-62
PAGE 23
Commission did not expressly disagree with the Grouse Creek QFs that they had met all past
grandfathering criteria utilzed by Idaho's implementation of 18 C.F.R. § 292.304(d)(2)(ii).
Rather, the Commission stated, "Because published avoided cost rates remain unchanged and
only the eligibilty size has changed, grandfathering criteria applied to rate changes are not
applicable here." Id. Nothng precludes the Commission from applying its grandfather
precedent at this tie.
As noted above, a formal, final wrting is clearly not required for a QF to form a LEO.
Consistent with the IPUC's existig grandfather precedent implementing FERC's LEO rue and
Idaho contract law, FERC declared that a final written agreement is not necessar to establish a
legally enforceable obligation. Cedar Creek Wind LLC, 137 FERC ~ 61,006 at ~ 36 & n.62; see
also Evco Sound & Electronics, Inc. v. Seaboard Surety Company, 148 Idaho 357, 365, 223 P.3d
740, 748 (2009); Miler Construction Co. v. Stresstek, 108 Idaho 187, 188-89; 697 P.2d 1201,
1202-04 (1985); Re Approval of a Firm Energy Sales Agreement with Yellowstone Power
Company, Order 32104, at 12. Pursuat to the IPUC's LEO criteria, a LEO arose on November
8,2011, on which date the Grouse Creek QFs' fied meritorious complaits alleging that they
commtted themselves to Idaho Power QF FESAs with standad terms and published rates
approved by the IPUC. Alternatively, the Grouse Creek QFs established a LEO, at the very
latest on December 9, 2011, by which time every word in the final contracts was known and not
subject to any dispute or reasonable misunderstading whatsoever.
Idaho Power's contrar position rests on one faulty legal premise and one faulty factual
premise. Legally, Idaho Power's arguent fails because Idaho Power incorrectly concludes,
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CASE NOS. IPC-E-I0-61, IPC-E-1O-62
PAGE 24
despite Cedar Creek Wind and the IPUC's past precedent, that a LEO canot be formed until a
formal wrting is signed. See Idaho Power's Legal Briefat 6-7 (asserting "Grouse Creek did not
obligate itselfto sell its electrcity to Idaho Power until well afer December 14,2010, when it
signed the PPA on December 21,2010"). That is simply incorrect because a legally enforceable
obligation may be formed before memorialization of a contract to a formal wrting.
Factuly, Idaho Power's arguent fails because it rests on the mistaen position that
Idaho Power did not know the projects' transmission provider or their precise locations until
December 15, 2010. See Idaho Power's Legal Brief at 11-12; Affdavit of Randy Allphin at ~
17-19 and Exhbits 13-15. Idaho Power states these items. were unown because they were
inadvertently omitted from the completed wrtten contract sent to Idaho Power from the Grouse
Creek QFs on December 2,2010.
Agai, Idao Power's characterization is simply incorrect because Idaho Power
possessed both of these items far in advance of December 2010. The Grouse Creek QFs
previously provided the carographic sections in the October 1, 2010 letters. See Affdait of
Christine Mikell at Exhbit G, pp. 5, 13. The sections in Exhbit B of the executed FESAs before
the Commssion are no different from those in the October 1 st letters. And Wasatch Wind had
stated that BP A would be the transmittng entity on multiple occasions. See id. at Exhbit A, p. 2
(Febru 26,2010), Exhbit C, p. 9 (June 17,2010); Exhbit D, pp. 1-2,5, 7, 11, 13 (July 14,
2010); Exhbit F, p. 1, 7,9, 13, 15 (August 17,2010); Exhbit G, pp. 1,6,9, 15 (October 1,
2010); Complaints, Case Nos. IPC-E-1O-29 and -30, at ~ 7 (November 8, 2010). Idao Power
attempts to create confsion regarding whether BP A or PacifiCorp would be the transmittng
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CASE NOS. IPC-E-1O-61, IPC-E-1O-62
PAGE 25
entity. See Affdavit of Randy Allphin at ~ 17. But Idaho Power's alleged confsion is
misleadig, at best. Idaho Power points to no evidence - other than Mr. Allphi's allegation of
his own confsion - to support the assertion that the Grouse Creek QFs ever envisioned using
PacifiCorp's trsmission system. Doing so would require building a 70 mile interconnection
line from the projects to the nearest PacifiCorp line. PacifiCorp has no transmission or
distrbution lines anywhere near the projects. The record compels a conclusion that Idaho Power
did understad BPA to be the transmitting entity, and no reasonable confsion existed on or afer
December 14,2010. A LEO therefore existed before December 14,2010.
CONCLUSION
For the reasons set fort above, a legally enforceable obligation arose on November 8,
2010 with the filing of the meritorious Complaints, or alternatively, no later than December 9,
2010 when every word in the fmal wrtten contrcts was known and agreed to by the Grouse
Creek QFs and Idaho Power. Therefore, the Grouse Creek QFs respectfuly request that the
Commission exercise its authority under I.C. § 61-624, and modify its prior orders to approve the
Fir Energy Sales Agreements.
Respectfly submitted this 27th day of Febru 2012.
RICHASON & O'LEARY, PLLC~
te J. Richardson
Gregory M. Adams
Attorneys for Grouse Creek Wind Park,
LLC and Grouse Creek Wind Park II, LLC
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CASE NOS. IPC-E-I0-61, IPC-E-1O-62
PAGE 26
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 27th day of Febru, 2012, a tre and correct copy of
the within and foregoing REPLY LEGAL BRIEF OF THE GROUSE CREEK WIND
PAR LLC, GROUSE CREEK WIND PARK II, LLC was served as shown to the followig
paries:
Commission Sta
Kristine Sasser
Deputy Attorney General
Idaho Public Utilties Commission
472 W. Washington Street
Boise, Idaho 83702
Kris. Sasser~puc.idaho. gov
( ) U.S. Mail, Postage Prepaid
(x) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(x) Electronic Mail
Lisa Nordstrom
Jason Wiliams
Donovan Walker
Idaho Power Company
POBox 70
Boise, Idaho 83707
dwa1er~idaopower.com
jwillams~idaopower.com
Inordstrom~idahopower.com
( ) U.S. Mail, Postage Prepaid
(x) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(x) Electronic Mail
Randy Allphin
Idaho Power Company
POBox 70
Boise, ID 83707
rallphin~idahopower.com
( ) U.S. Mail, Postage Prepaid
(x) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(x) Electronic Mail
Signed C1
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PAGE 27