20130617Motion to Supplement Record.pdf

BEFORE THE I’,p 31
IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF )IDAHO POWER COMPANY FOR A )Case No.IPC-E-1 1-23
DECLARATORY ORDER REGARDING )PURPA JURISDICTION )KOOTENAI ELECTRIC)COOPERATIVE,INC.’S MOTION TO)SUPPLEMENT THE RECORD)
_____________________________________________________________________________)
Kootenai Electric Cooperative,Inc.(“Kootenai”)hereby moves the Idaho Public Utility
2 Commission (the “IPUC”),pursuant to Rule 56 of the IPUC’s Rules of Procedureto allow
3 Kootenai to supplement the record with the Federal Energy Regulatory Commission’s (“FERC”)
4 recent declaratory order on the central issue this matter.
5 Attached is a copy of FERC’s June 14,2013 Declaratory Order which may also be found
6 at 143 FERC ¶61,232.
7 The FERC Order disposes of all relevant issues in Kootenai’s favor.
Respectfully submitted this 17th day of June 2013.
RICHARDSON ANDO’LEARY,PLLC
Peter J.Richardson (ISB No.3195)
Gregory M.Adams (ISB No.7454)
Richardson &O’Leary,PLLC
515 N.27th Street
P.O.Box 721$
Boise,Idaho $3702
Telephone:(20$)93$-2236
Fax:(20$)938-7904
[e-mail]
[e-mail]
Attorneys for Kootenai Electric
Cooperative,Inc.
PAGE 1-MOTION TO SUPPLEMENT THE RECORD
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 17th day of June 2013,a true and correct copy of the within
and foregoing MOTION TO SUPPLEMENT THE RECORD was served in the manner
shown below,to:
Donovan Walker Hand Delivery
Christa Bearry U.S.Mail,postage pre-paid
Idaho Power Company Facsimile
P0 Box 70 X Electronic Mail
Boise,Idaho 83 707-0070
dwalker@idähopower.com
[e-mail]
PAGE 2-MOTION TO SUPPLEMENT THE RECORD
143 FERC ¶61,232
U1STITED STATES Of AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners:Jon Wellinghoff,Chairman;
Philip D.Moeller,John R.Norris,
Cheryl A.Lafleur,and Tony Clark.
Kootenai Electric Cooperative,Inc.Docket Nos.EL 13-59-000
Qf 11-178-002
NOTICE OF INTENT NOT TO ACT AND DECLARATORY ORDER
(Issued June 14,2013)
1.In this order,we give notice that we decline to initiate an enforcement action
pursuant to section 2 10(h)of the Public Utility Regulatory Policies Act of 197$
(PURPA)’as requested by Kootenai Electric Cooperative,Inc.(Kootenai).However,we
find that the Oregon Public Utilities Commission’s (Oregon Commission)February 26,
2013 order2 misinterprets the Commission’s August 31,2012 order3 and is inconsistent
with PURPA.The Oregon Order precludes Kootenai from selling its Fighting Creek
Landfill Gas to Energy Station qualifying facility (Fighting Creek QF)output in Oregon.
A utility is obligated under PURPA,however,to purchase the output of a Qf,even a Qf
located in another state,as long as the QF can deliver its power to the utility.
Back2round
2.Kootenai is a member-owned electric cooperative located in Hayden,Idaho.
Kootenai’s fighting Creek QF is a 3 MW net capacity landfill gas plant located near
Beligrove,Idaho.4 Kootenai seeks to deliver its fighting Creek QF’s output from Idaho
across Avista Corporation’s (Avista)system to an Idaho Power Company (Idaho Power)
116 U.S.C.§824a-3(h)(2006).
2 Kootenai Electric Cooperative,Inc.v.Idaho Power Co.,Oregon Commission
Docket No.UM 1572,Order No.13-062 (Feb.26,2013)(Oregon Order).
‘Avista Corporation,140 FERC ¶61,165 (2012)(August31 Order).
“Kootenai Petition at 3-4.
Docket Nos.ELI3-59-000 and QF11-178-002 -2-
facility in Oregon and thus receive more favorable Oregon Commission-approved
PURPA avoided cost rates and terms.5
3.The Lob-Oxbow line,over which the output will be transmitted,is a 10$mile,
230 kV transmission line with the northernmost 63 miles owned by Avista (operated by
Idaho Power for Avista)and the southernmost 45 miles owned by Idaho Power.6 The
Lob-Oxbow line generally runs north to south from the Lob Substation in Idaho to the
Oxbow Substation in Oregon.The Lob-Oxbow line crosses the Idaho-Oregon border
into Oregon 43 miles south of the Lob Substation and the ownership changes from
Avista to Idaho Power 20 miles further south near Imnaha,Oregon.7
4.On October 19,2011,Kootenai requested that Idaho Power agree to a standard
offer Oregon power purchase agreement (Oregon PPA),but Kootenai states that Idaho
Power resisted and requested that the Idaho Public Utilities Commission (Idaho
Commission)assert jurisdiction over Kootenai’s requested Qf sale,thereby requiring
Idaho Commission-set avoided cost rates.Kootenai states that it instead executed and
delivered an Oregon PPA to Idaho Power on December 27,2011;Idaho Power
acknowledged receipt,but refused to countersign.Kootenai filed a complaint against
Idaho Power at the Oregon Commission on January 3,2012 requesting that the Oregon
Commission require Idaho Power to purchase Kootenai’s Fighting Creek QF output
under the rates and terms contained in the Oregon PPA executed by Kootenai.8
5.Kootenai also states that it submitted a request to Avista for point-to-point firm
transmission service allowing Kootenai to deliver its Fighting Creek QF’s output from
Idaho across Avista’s system (using the Lob-Oxbow line)to Idaho Power in Oregon.9
Kootenai tendered a long-term firm point-to-point service agreement to Avista on
May 31,2012,and Idaho Power objected.At Kootenai’s request,Avista filed the
unexecuted transmission service agreement between Kootenai and Avista (Avista
Agreement)to the Commission on June 27,2012.The service agreement describes the
point of delivery (POD)as “the point on the Lob-Oxbow 230 kV transmission line where
the 230 kV facilities of Idaho Power Company and Avista are interconnected and,for
5id.at2,5.
6 We note that the point of change in ownership along the Lob-Oxbow line is the
only point at which Avista’s and Idaho Power’s transmission systems interconnect with
each other.
Idaho Power Protest at 6.
8 Kootenai Petition at 7.
91d.at8.
Docket Nos.ELI3-59-000 and QF1 1-178-002 -3 -
scheduling purposes,the LOLO POD.”The August 31 Order accepted the Avista
Agreement,’°and stated (at P 21):
We conclude that it is not uncommon for a PORPOD to represent multiple
facilities or capacity between multiple transmission service providers,not
just a single control area interface.Additionally,we conclude that Avista’s
description of the POD provides Kootenai non-discriminatory transmission
service all the way across Avista’s transmission system,because the
description incorporates the entirety of Avista’s transmission assets on the
Lob-Oxbow line.Finally,we find that Kootenai’s requested clarification
that the term “near Imnaha,Oregon”be in the description of the POD or,
alternatively,that the order state that Imnaha,Oregon is the only location to
which Avista will deliver the QF output for Idaho Power’s purchase and
use is unnecessary in light of our finding that Avista’s proposed language
meets the standards set forth in both NAESB [North American Energy
Standards BoardJ and NERC [North American Electric Reliability
CorporationJ guidelines.
6.In its Oregon Order,however,the Oregon Commission has since concluded that
Kootenai is not eligible for an Oregon PPA under Idaho Power’s Oregon Schedule 85
(Schedule 85)for the output produced by Kootenai’s Fighting Creek QF (and wheeled by
Avista to Idaho Power)essentially because the Oregon Commission determined the POD
to be at the Lob Substation in Lewiston,Idaho,which it stated is not within the state of
Oregon.In the Oregon Order,the Oregon Commission explained that a Qf can obtain
Oregon Commission-approved avoided cost rates under PURPA only if its output will be
delivered into the purchasing utility’s control area in Oregon,and the POD will be in
Oregon.The Oregon Commission concluded that Kootenai failed to meet either
requirement and therefore is not eligible for an Oregon PPA under Schedule 85.
Petition for Enforcement and Petition for Declaratory Order
7.On April 17,2013,Kootenai filed a petition for declaratory order and petition for
enforcement under section 210(h)of PURPA against the Oregon Commission,to correct
the Oregon Order that rejected Kootenai’s attempt to sell its Fighting Creek QF output to
Idaho Power at Oregon Commission-approved avoided cost rates.
8.Kootenai argues that the Oregon Order ignores language in the Commission’s
August 3 1 Order,such as “we conclude that Avista’s description of the POD provides
Kootenai non-discriminatory transmission service all the way across Avista’s
10 Avista Corp.,140 FERC ¶61,165 (2012)(August31 Order).
Docket Nos.EL13-59-000 and QF11-178-002 -4-
transmission system,because the description incorporates the entirety of Avista’s
transmission assets on the Lob-Oxbow line.”
9.Kootenai argues that the Oregon Commission’s requiring Qf output to first enter
the purchasing utility’s balancing authority area within the geographic boundaries of
Oregon is inconsistent with PURPA.’2
10.Kootenai points out that the Oregon Order would still require Kootenai to pay for
power to be delivered down the Lob-Oxbow line,despite concluding that the wheeling
transaction terminates at the Lob Substation,which is at the beginning of the Lob-
Oxbow line.’3 Kootenai further states that the Oregon Order effectively allows Idaho
Power to use the Avista-owned Lolo-Imnaha section of the line free of charge,while
Kootenai and other Avista transmission customers pay for the associated costs.14
11.Kootenai asks the Commission to declare that:(1)the POD for Fighting Creek QF
output is at the point of change of ownership of the Lob-Oxbow transmission line near
Imnaha,Oregon;(2)Idaho Power cannot assert title to output from the Fighting Creek
QF prior to delivery of that output at the Imnaha POD;(3)Kootenai is entitled to the
Oregon Commission’s avoided cost rates in effect for Idaho Power at the time it tendered
a signed QF contract to Idaho Power on December 27,2011;(4)the Oregon Commission
has violated the right of QFs to make indirect sales to Oregon utilities;(5)PURPA
provides no justification to discriminate against out-of-state QFs;and (6)the Oregon
Commission’s actions unduly burden interstate commerce in electricity and are contrary
to the Commission’s policies promoting open competition in the electric generation
market.15
12.Kootenai requests that the Commission initiate an enforcement action under
section 210(h)of PURPA to ensure that the rights of QFs to make indirect sales are
protected,and promote the Commission’s policy interest in unimpeded flow of electric
power in interstate commerce and open access to the nation’s electric transmission
system.16
‘Kootenai Petition at 12-13 (citing Avista Corp.,140 FERC ¶61,165 (2012)).
at 19.
‘31d.at2l.
141d.at 15-16.
151d.at 24-25.
‘61d.at25.
Docket Nos.EL 13-59-000 and QF1 1-178-002 -5 -
Notice of Filing and Responsive Pleadings
13.Notice of Kootenai’s filing was published in the Federal Register,78 Fed.
Reg.24,404 (2013),with interventions and protests due on or before May 7,2013.The
Oregon Commission and Idaho Power each filed interventions and protests.
14.The Oregon Commission explains that in its Oregon Order it:(1)denied
Kootenai’s request to compel Idaho Power to enter into an Oregon PPA;(2)nevertheless
affirmed that under PURPA an electric utility is required to purchase any energy and
capacity that is made available to the electric utility either directly or indirectly from a
QF;but (3)ultimately concluded that Kootenai was not entitled to a PURPA PPA in
Oregon because its output would be delivered to Idaho Power in the state of Idaho.’7
15.The Oregon Commission clarifies that the Oregon Order does not and was not
intended to conflict with the Commission’s August 31 Order.The Oregon Commission
explains that it interpreted the August 31 Order as approving the unexecuted Avista
Agreement without determining whether Kootenai is eligible for a PURPA contract in
Oregon,which it states is a question properly resolved by the Oregon Commission.’8
16.The Oregon Commission and Idaho Power argue that the only valid POD is the
Lob Substation in Idaho,asserting that the Lob Substation is the only designated POD
listed on both the Open Access Same-time Information System (OASIS)and NERC’s
Transmission System Information Network (TSIN)directory.’9
17.The Oregon Commission adds that it has not discriminated against out-of-state
QFs.According to the Oregon Commission,it has not concluded that all wheeling
transactions stop at the boundary of a balancing authority area.Rather,the Oregon
Commission concludes that,in this particular circumstance,the POD is in Idaho and
thereby Kootenai is not eligible for an Oregon PURPA PPA.The Oregon Commission
argues that an in-state QF would be treated no differently.2°
18.Idaho Power protests Kootenai’s petition because it:(1)mischaracterizes the facts
of the case;(2)mischaracterizes the August 31 Order;(3)misconstrues the Oregon
17 Oregon Commission Protest at 1-2.
‘81d.at2.
Oregon Commission Protest at 7-8;Idaho Power Protest at 6-7.
20 Oregon Commission Protest at 15.
Docket Nos.EL13-59-000 and QF11-178-002 -6-
Order;(4)sets forth ‘as applied’claims which are beyond the Commission’s jurisdiction;
and (5)seeks claims that are procedurally barred.2’
19.The Oregon Commission and Idaho Power request that the Commission deny
Kootenai’s request for an order declaring that the POD is in Oregon,and its request to
initiate an enforcement action against the Oregon Commission.22
20.On May 14,2013,Kootenai filed a motion for leave to answer and answer to the
protests.Kootenai contends that Idaho Power raises many meritless procedural
arguments that,if accepted,would create procedural impediments for the Commission to
enforce the open access transmission regime established by Order No.888,and to correct
state policies that are inconsistent with PURPA.23
21.Kootenai argues that the POD is at the point of change of ownership of the Lob-
Oxbow line,near Imnaha,Oregon.According to Kootenai,Avista clarified that it
“provides transmission service over the entirety of its assets on the Lob-Oxbow 230 kV
Transmission Line,and therefore provides transmission service to the point of change of
ownership.”24
22.Kootenai explains that the Oregon Order recognized that the POD in Lob will
represent a number of facilities,including facilities in Oregon.Kootenai states that it will
make QF deliveries to a POD that includes facilities in Oregon and that such
circumstances require the state to implement PURPA.25
Discussion
Procedural Matters
23.Pursuant to Rule 214 of the Commission’s Rules of Practice and Procedure,
18 C.F.R.§385.2 14 (2012),the notice of intervention and timely,unopposed motion
to intervene serve to make the entities that filed them parties to this proceeding.
Rule 213(a)(2)of the Commission’s Rules of Practice and Procedure,18 C.F.R.§
385.213(a)(2)(2012),prohibits an answer to a protest or answer unless otherwise ordered
21 Idaho Power Protest at 1-2.
22 Oregon Commission Protest at 15;Idaho Power Protest at 31.
23 Kootenai Answer at 2.
24 at 11.
251d at 17-18.
Docket Nos.EL13-59-000 and Qf 11-178-002 -7 -
by the decisional authority.We will accept Kootenai’s answer because it has provided
information that assisted us in our decision-making process.
Commission Determination
24.Section 210(h)(2)(B)of PURPA26 permits any electric utility,qualifying
cogenerator,or qualifying small power producer to petition the Commission to act under
section 21 0(h)(2)(A)of PURPA27 to enforce the requirement that a state commission
implement this Commission’s regulations.As the Commission stated in its 1983 Policy
Statement,we have discretion in choosing whether to exercise that enforcement authority
under section 21 0(h)(2)(A)of PURPA.28 We may choose to exercise our enforcement
authority,or,where the Commission refuses to bring an enforcement action within
60 days of the filing of a petition,under section 210(h)(2)(B)of PURPA,the petitioner
may bring its own enforcement action directly against the state regulatory authority or
non-regulated electric utility in the appropriate United States district court.29
25.In this order,we give notice that we do not intend to go to court to enforce
PURPA on behalf of Kootenai;Kootenai thus may bring its own enforcement action
against the Oregon Commission in the appropriate United States district court.
Notwithstanding our decision not to go to court to enforce PURPA on behalf of Kootenai,
we find that the Oregon Order is inconsistent with PURPA in certain respects,as we
explain below.
26.Section 210(h)of PURPA requires that an aggrieved party,before bringing an
enforcement petition in federal district court,first petition this Commission to bring its
own enforcement action against the state commission.The Commission can and often
does issue a declaratory order in response to an enforcement petition.30 That declaratory
26 16 U.S.C.§824a-3(h)(2)(B)(2006).
27 Id.§824a-3(h)(2)(A).
28 Policy Statement Regarding the Commission ‘s Enforcement Role Under
Section 210 ofthe Public Utility Regulatoiy Policies Act of 1978,23 FERC ¶61,304,
at 61,645 (1983)(1983 Policy Statement).
29 In those circumstances where the Commission refuses to act,the Commission
may intervene as of right in an enforcement action brought by such a petitioner.
16 U.S.C.§824a-3(h)(2)(3)(2006).
30 See,e.g.,Rainbow Ranch Wind,LLC,139 FERC ¶61,077;Morgantown Energy
Associates,139 FERC ¶61,066 (2012),denying reconsideration,140 FERC ¶61,223
(2012);Cedar Creek Wind,LLC,137 FERC ¶61,006 (201 1);Southern Calfornia Edison
Co.,70 FERC ¶61,215,order on reconsideration,71 FERC ¶61,269 (1995).
Docket Nos.EL 13-59-000 and Qf 11-178-002 -8 -
order,issued separate from the Commission’s authority under PURPA’s section 2 10(h)
enforcement regime,is within the Commission’s purview to issue “to remove
uncertainty.”3’A notice of intent to act and the accompanying declaratory order
represent both the Commission’s exercise of its discretion on such an enforcement action,
as well as a statement of the Commission’s position on the matter;the statement of
position by the Commission can provide assistance to a court on the Commission’s
thinking in the event that the Commission and/or such petitioner decide to bring
enforcement cases •32
27.We find that the Oregon Order terminating Kootenai’s wheeling transaction at a
Lewiston,Idaho point of delivery has misinterpreted this Commission’s August 31 Order
that accepted the Avista Agreement.
28.In the August 31 Order,the Commission stated (at P 21):
We conclude that it is not uncommon for a PORPOD to represent multiple
facilities or capacity between multiple transmission service providers,not
just a single control area interface.Additionally,we conclude that Avista ‘s
description of the POD provides Kootenai non-discriminatory transmission
service all the way across Avista ‘s transmission system,because the
descrtption incorporates the entirety ofAvista ‘s transmission assets on the
Lob-Oxbow line.Finally,we find that Kootenai’s requested clarification
that the term “near Imnaha,Oregon”be in the description of the POD or,
alternatively,that the order state that Imnaha,Oregon is the only location to
which Avista will deliver the QF output for Idaho Power’s purchase and
use is unnecessary in light of our finding that Avista’s proposed language
meets the standards set forth in both the NAESB and NERC guidelines.
[Emphasis added.]
29.In the Oregon Order,the Oregon Commission states (at page 6):
Turning to the merits,we conclude that Kootenai is not eligible for a PPA
under Schedule 85 for the electricity produced by its QF project and
wheeled by Avista to Idaho Power.Eligibility for a Schedule $5 PPA
requires a QF to show that the power it proposes to sell will be delivered to
31 See 5 U.S.C.§554(e)(2006);18 C.F.R.§385.207(a)(2)(2012).
32 Industrial Cogenerators v.FERC,47 F.3d 1231,1234-35 (D.C.Cir.1995)
(comparing a declaratory order to “a memorandum of law prepared by the FERC staff in
anticipation of a possible enforcement action;the only difference is that the Commission
itself formally used the document as its own statement of position”);see also Niagara
Mohawk Power Corp.V.FERC,117 F.3d 1485,1482 (D.C.Cir.1997).
Docket Nos.EL13-59-000 and Qf 11-178-002 -9-
Idaho Power’s “control area”within the state of Oregon,and that its POD
will be in Oregon.Kootenai fails on both counts because,as Idaho Power
explains,its control area extends to the Lob substation in Idaho,and,
regardless of where ownership of the Lob-Oxbow transmission line shifts,
the Lob substation serves as the formal scheduling point and POD/POR for
receipt and delivery of energy between Idaho Power and Avista.
We agree with Idaho Power that FERC’s order,while relevant to the
question of whether Avista’s proposed interconnection agreement should be
approved,cannot conclusively address how Idaho Power’s Oregon
Schedule 85 tariff should be interpreted.That question falls within our
jurisdiction.We point out,however,that FERC’s order does not state the
PORJPOD for Avista and Idaho Power will be at Imnaha,Oregon.Rather,
the order simply states that a PORJPOD may “represent multiple facilities.”
In this instance,the PORJPOD in Lob will represent a number of facilities,
including facilities in Oregon.Regardless,the POR/POD will remain at
Lob,in Idaho.
Further,we reject Kootenai’s argument that denying the proposed
transaction violates the dormant commerce clause of the United States
Constitution by excluding an out-of-state QF from participating in the
benefits of a PPA in Oregon.Our analysis of Idaho Power’s PPA rests on
the terms of the PPA and the point at which power enters Idaho Power’s
control area.Out-of-state QFs,like any Qf located within Oregon,must
comply with the terms of PPAs approved by this Commission.
Furthermore,to the extent that Kootenai is pursuing an Oregon PPA with
Idaho Power because the terms available in Idaho were less attractive,we
decline to find that an out-of-state QF is legally entitled to access to more
advantageous terms in Oregon when the Qf fails to meet the terms of
service of a utility as approved by this Commission.
30.There is thus a controversy about the POD for the transmission service provided
under the Avista Agreement.The issue for PURPA purposes is not so much the
designation of the POD,but rather whether the QF can deliver its output to Idaho Power.
The transmission service being provided is Commission-jurisdictional transmission
service33 and the Commission’s August 31 Order concluded that Avista provides
Kootenai non-discriminatory transmission service “all the way across Avista’s
transmission system,because the description incorporates the entirety of Avista’s
transmission assets on the Lob-Oxbow line.”The Avista Agreement enables Kootenai
See 16 U.S.C.§824(b)(1)(2006).
Docket Nos.ELY3-59-000 and QF 11-178-002 -10 -
to physically deliver power to Idaho Power at the point of change of ownership on the
Lob-Oxbow line in Oregon.34
31.The point of change in ownership along the Lob-Oxbow line is the only point at
which Avista’s transmission system directly connects with Idaho Power’s transmission
system.While Idaho Power operates the line and the Lob Substation is at the boundary
between the balancing authority areas of Avista and Idaho Power,Avista nevertheless
controls the capacity on the segment that it owns and provides transmission access to that
capacity under its Open Access Transmission Tariff (OATT).This point was made clear
when Avista acquired the additional segment of the line from Idaho Power in 2000.
Thus the point of change in ownership along the Lob-Oxbow line is the only point at
which Idaho Power can receive delivery of power from the Avista transmission system,
and Kootenai has reserved capacity on the Avista system to deliver the Fighting Creek
QF output at that point.
32.We agree with Kootenal that the practical effect of the Oregon Order,if it were to
be upheld,is that Kootenai would be paying for its reservation for point-to-point
transmission (and line losses)all the way to Imnaha,Oregon under Avista’s Commission-
jurisdictional OATT and at Commission-jurisdictional transmission rates,but at the same
time Kootenai would be denied the benefit of delivery to Imnaha by terminating the
transaction at the Lob Substation in Idaho.
The Commission’s August 31 Order recognized the distinction between,on the
one hand,transmission service,which results in the physical delivery of power to the
point of change of ownership on the Lob-Oxbow line (i.e.,incorporating the entirety of
Avista’s transmission assets on the Lob-Oxbow line)and,on the other hand,the LOLO
POD,which is used for scheduling purposes only,and which represents multiple facilities
or capacity between multiple transmission service providers,not just a single control area
interface.The Oregon Commission refers to the LOLO POD used in OASIS and TSIN
as if it is a single POR’POD at the physical Lob Substation,but as explained in the
August 31 Order,it does not necessarily represent such a single point.As quoted above,
the Oregon Order itself concluded that the LOLO POD,in fact,represents a number of
facilities,including facilities located in Oregon,but then inexplicably concluded the POD
under the Avista Agreement is the physical Lob Substation in Idaho.Moreover,we note
that OASIS and TSIN are intended to facilitate,and not restrict or unfairly deny,
transmission access to transmission customers taking OATT service.
Kootenai Answer,Exh.3 at 7 (“After the transfer of the facilities,the line will
continue to be used in the same way [consistent with the 1958 Transmission Line
Agreement],and Avista will continue to post the available transmission capacity on its
OASIS.”)
Docket Nos.ELI3-59-000 and Qf 11-178-002 -11 -
33.The Oregon Order would prevent Kootenai from receiving Oregon avoided cost
rates under PURPA because the Oregon Commission has determined that Kootenai does
not meet the terms of service by setting the POD at the Lob Substation The Qf has the
discretion to choose to sell to a more distant utility (as it has here),36 and thus where to
sell,as long as the QF can deliver its power to the utility.A sale at Imnaha,Oregon
would allow Kootenai to receive Oregon Commission-approved avoided cost rates under
PURPA.The Oregon Order violates Kootenai’s PURPA rights to choose whether to sell
the Fighting Creek QF output at Oregon Commission-approved avoided cost rates by
delivering such output at the point where Avista’s and Idaho Power’s transmission
systems interconnect.A utility is obligated under PURPA to purchase the output of a QF
as long as the QF can deliver its power to the utility.37
The Commission orders:
(A)Notice is hereby given that the Commission declines to initiate an
enforcement action under section 21 0(h)(2)(A)of PURPA.
(B)The Commission hereby finds that the Oregon Commission’s Oregon Order
is inconsistent with PURPA and the Commission’s regulations,as discussed in the body
of this order.
By the Commission.
(SEAL)
Nathaniel J.Davis,Sr.,
Deputy Secretary.
36 1$C.F.R.§292.303(d)(2012).
Public Service Co.ofNew Hampshire v.New Hampshire Electric Cooperative,
Inc.,83 FERC ¶61,224 at 61,998,reh ‘g denied,85 FERC ¶61,044 (1998).