20120530Request for Oral Argument.pdf

McDevitt & Miller LLP
Lawyers
420 W. Bannock Street
[phone] P.O. Box 2564-83701 Chas. F. McDevitt
[phone] (Fax) Boise, Idaho 83702 Dean J. (Joe) Miller
May 30, 2012
Via Hand Delivery
jean Jewell, Secretary
Idaho Public Utilities Commission
472 W. Washington St.
Boise, Idaho 83720
Re: In the Matter of the Application of Rainbow Ranch Wind LLC
of Rainbow West Wind LLC
IPC-E-12-11
rn C)
c rn *
Dear Ms. Jewell:
Enclosed for filing, please find an original and seven (7) copies of Rainbow Ranch Wind, LLC and
Rainbow West Wind, LLC's Request to Set Oral Argument and Request to Take Official Notice.
Kindly return a file stamped copy to me.
Very Truly Yours,
McDevitt & Miller LLP
L
Dean J. Miller
DJM/hh
End.
ORIGINAL
Dean J. Miller (ISB No. 1968)
Chas. F. McDevitt (ISB No. 835)
McDEVITF & MILLER LLP
420 West Bannock Street
P.O. Box 2564-83701
Boise, ID 83702
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
RE CE E I ' D
2012 MAY 30 PM 2: 114
I I MMIS
Attorneys for Rainbow Ranch Wind LLC
Attorneys for Rainbow West Wind LLC
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION
AND OF RAINBOW RANCH WIND LLC
AND RAINBOW WEST WIND LLC TO
MODIFY PRIOR ORDER No. 32300 AND
APPROVE FIRM ENERGY
SALES AGREEMENTS
Case No. IPC-E-12-11
REQUEST TO SET ORAL
ARGUMENT AND REQUEST TO
TAKE OFFICIAL NOTICE
COME NOW the Petitioners, by and through their counsel of record, and request
the following relief from the Commission and in support thereof respectfully show as
follows, to wit:
First, Petitioners request that the Commission set a date for Oral Argument, at its
earliest convenience, on Idaho Power Company's pending Motion to Dismiss dated
March 23, 2012. Petitioners filed an Answer to the Motion to Dismiss on April 3, 2012,
and requested Oral Argument.
REQUEST TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE-1
Second, pursuant to RP 263.01(a), Petitioners request that the Commission take
official notice of FERC Order No. 139 FERC 61,077, so that the same may be discussed
and considered at Oral Argument. A true copy is attached hereto.
DATED this day of May, 2012.
kr.iT*vfl t1 liP P 31 xnm J
BYVaL Dean J. Miller
Attorney for Rainbow Ranch Wind LLC
and Rainbow West Wind LLC
REQUEST TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE-2
CERTIFICATE OF SERVICE
I hereby certify that on the day of May, 2012, I caused to be served, via the
method(s) indicated below, true and correct copies of the foregoing document, upon:
Jean Jewell, Secretary Hand Delivered
Idaho Public Utilities Commission U.S. Mail
472 West Washington Street Fax
P.O. Box 83720 Fed. Express
Boise, ID 83720-0074 Email
jjewell(puc.state.id.us
Donovan E. Walker Hand Delivered Li
Idaho Power Company U.S. Mail
1221 W. Idaho Street Fax
P.O. Box 70 Fed. Express
Boise, ID 83707 Email
[e-mail]
REQUEST TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE-3
139 FERC 161,077
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Jon Wellinghoff, Chairman;
Philip D. Moeller, John R. Norris,
and Cheryl A. LaFleur.
Rainbow Ranch Wind, LLC and Docket Nos. EL12-41-000
Rainbow West Wind, LLC QF 11-44-001
QF 11-45-001
NOTICE OF INTENT NOT TO ACT AND DECLARATORY ORDER
(Issued April 30, 2012)
1. In this order, we give notice that we decline to initiate an enforcement action
pursuant to section 210(h) of the Public Utility Regulatory Policies Act of 1978
(PURPA)' as requested by Petitioners .2 However, we conclude that the Idaho Public
Utilities Commission's (Idaho Commission) June 8, 2011 order3 rejecting Petitioners'
two Firm Energy Sales Agreements (Agreements)4 is inconsistent With the requirements
of PURPA and our regulations implementing PURPA.5
16 U.S.C. § 824a-3(h) (2006).
2 In this order, we refer to Rainbow Ranch Wind, LLC and Rainbow West Wind,
LLC as the Petitioners.
In the Matter of the Application of Idaho Power Company for a Determination
Regarding a Firm Energy Sales Agreement Between Idaho Power and Rainbow Ranch
Wind, LLC, Order No 32256, Case No IPC-E-10-59, In the Matter of the Application of
Idaho Power Company for a Determination Regarding a Firm Energy Sales Agreement
Between Idaho Power and Rainbow West Wind, LLC, Order No 32256, Case No IPC-E-
10-60, (Idaho Commission June 8, 2011) (Idaho June 8 Order).
Agreements; as used here, refer to a Firm Energy Sales Agreement between
Idaho Power Company (Idaho Power) and Rainbow Ranch Wind, LLC, and a Firm
Energy Sales Agreement between Idaho Power and Rainbow West Wind, LLC.
18 C.F.R. Part 292 (2011).
Docket No. BL12-41-000, et al. MR
Background
2.The Idaho Commission's findings at issue in this proceeding developed from an
earlier Idaho Commission proceeding Ina November 5, 2010 joint petition filed with
the Idaho Commission by a number of Idaho utilities, including Idaho Power,6 requesting
the Idaho Commission to initiate an investigation into various avoided cost issues.' The
Idaho utilities urged the Idaho Commission to lower the published avoided cost rate
eligibility cap for a qualifying facility (QF) from 10 aMW to 100 kW effective
immediately.8
3.On December 3, 2010, the Idaho Commission issued Order No. 32131, finding
probable cause to investigate the Idaho utilities' assertions, but did not immediately
reduce the eligibility cap to 100 kW This order, however, gave notice that the Idaho
Commission would make a decision on the eligibility cap after its investigation and that
its decision would be effective, retroactively, on December 14, 2010 .10
4.On December 16, 2010, Idaho Power submitted the Agreements to the Idaho
Commission seeking the Idaho Commission's acceptance The Agreements, two 20-
year power purchase agreements (PPA), one agreement between Idaho Power and
Rainbow Ranch Wind, LLC, and the other agreement between Idaho Power and Rainbow
West Wind, LLC, were the product of negotiations conducted during November and
December 2010 .12
6 Parties to the joint petition included Idaho Power, Avista Corporation, and
PacifiCorp dfb/a Rocky Mountain Power. Idaho June 8 Order at 1-2
Idaho June 8 Order at 1-2.
8 Id at 2. "Average megawatts" (aMW) is a concept used by the Idaho
Commission to distinguish between a project's nameplate capacity and its actual monthly
output To satisfy the 10 aMW limitation, a QF must "demonstrate that under normal or
average design conditions the project will generate at no more than 10 aMW in any given
month," and the maximum monthly generation eligible for the published rates is capped
"at the total number of hours in the month multiplied by 10 MW" Order No 29632,
Case No. IPC-E-04-8 et al., at 14 (Idaho Commission Nov. 22, 2004).
Idaho June 8 Order at 2.
10 Id.
"Id. at 1.
12 See Petition at 5-10.
Docket No. EL12-41-000, etal. -3-
5.On February 7, 2011, the Idaho Commission issued Order No. 32176, holding that
the eligibility cap for wind and solar QFs to receive published avoided cost rates should
be temporarily reduced from 10 aMW to 100 kW while the Idaho Commission further
investigated the issue.13 The Idaho Commission noted that, while published avoided cost
rates are not available to projects exceeding the eligibility cap, such projects may
establish an avoided cost rate by using the Integrated Resource Plan methodology. 14
6.Finally, the Idaho Commission issued its June 8 Order, assessing whether it should
accept the Agreements submitted to it by Idaho Power on December 16, 2010 The Idaho
Commission rejected the Agreements because they did not conform with the eligibility
cap changes implemented in Order No 32176, reducing the cap from 10 aMW to 100
M In making this finding, the Idaho Commission adopted a "bright line rule a Firm
Energy Sales Agreement/Power Purchase Agreement must be executed, i.e., signed by
both parties to the agreement, prior to the effective date of the change in eligibility
criteria ,,i5 The Idaho Commission explained that the Agreements were for projects in
excess of its just-adopted 100 kW eligibility cap and, in order to be eligible for published
avoided cost rates, the Agreements must be in effect before the date of the eligibility cap
change, i.e., by December 14, 2010 The Idaho Commission, noting its new rule, found
that, while Rainbow Ranch Wind, LLC and Rainbow West Wind, LLC had signed on
December 13, Idaho Power had not signed until December 14. 16 Thus, based on these
findings, the Idaho Commission rejected the Agreements. 17
Petition for Enforcement
7.On March 1, 2012, Petitioners filed a petition for enforcement (Petition) asking the
Commission to initiate an enforcement action against the Idaho Commission to address
changes to the Idaho Commission's published avoided cost rates and implementation of
13 Petition at 10; see also In the Matter of the Joint Petition of Idaho Power
Company, Avista Corporation, and PacijiCorp d/b/a Rocky Mountain Power to Address
Avoided Cost Issues and to Adjust the Published Avoided Cost Rate Eligibility Cap,
Order No 32176, Case No GNR-E-10-04, at 18 (Idaho Commission Feb 7, 2011)
14 Idaho June 8 Order at 2.
'5 1d. at 8.
'6 1d
17 Jd. at 9.
Docket No. EL12-41-000, et al.
PURPA as determined in the Idaho Commission's June 8 order, which rejected
Petitioners' Agreements. 18
8.In the alternative, Petitioners request the Commission to make a number of
findings, each, in their view, consistent with the Commission's findings in Cedar Creek
Wind, LLC.19 Petitioners request the Commission to determine that the new rule
contained in the Idaho Commission's June 8 order, i.e., requiring firm energy sales
agreements or PPAs to be executed by both parties to the agreement before a legally
enforceable obligation arises: (1) is inconsistent with PURPA; (2) limits the ways a
legally enforceable obligation may be incurred to a fully-executed contract, which is
inconsistent with PURPA, (3) ignores that a legally enforceable obligation may arise
before the formal memorialization of an agreement in a writing; (4) was unnecessary
given the Petitioners' circumstances, and (5) ignores that Petitioners committed
themselves to sell electricity to Idaho Power sometime during the period of December 9
to December 13, 2010 .20
9.Petitioners assert that their and Idaho Power's conduct throughout November and
December of 2010 resulted in a legally enforceable obligation between the entities 2i
Petitioners explain that they were managed by American Wind Group LLC (American
Wind) during the period relevant to the Petition. Petitioners state that, on November 3,
2010, American Wind initiated negotiations with Idaho Power to enter into two, 20-year
PPAs for two wind-powered generation projects near Declo, Idaho, each with a net
generating capacity of 20 MW.
10.On November 5, 2010, Petitioners state that Idaho Power provided American
Wind with standard PPAs and information requests On November 9, Petitioners state
that American Wind provided the requested information to Idaho Power, and on
November 10, 2010, it provided Idaho Power with finalized PPAs Petitioners state that
American Wind attempted to discuss the PPAs with Idaho Power on November 15, 2010,
and received word from Idaho Power on November 17, 2010, that Idaho Power intended
to work with American Wind to negotiate the PPAs Petitioners state that four days after
a meeting between American Wind and Idaho Power, on November 23, 2010, American
Wind received new, unpopulated PPAs from Idaho Power. Petitioners state that it
provided completed PPAs to Idaho Power on December 3, 2010, followed by Idaho
18 Petition at 11.
19 Id. at 15; Cedar Creek Wind, LLC, 137 FERC 161,006 (2011) (Cedar Creek).
20 Petition at 15-16.
21 Jd at 9.
Docket No. EL12-41-000, et al.
Power sending completed PPAs to American Wind for final review on December 8,
2010.
11.Petitioners explain that American Wind contacted Idaho Power on December 9,
2010, via email, indicating that it was ready to sign the PPAs; however, Idaho Power did
not acknowledge American Wind's email until December 13, 2010, when it informed
American Wind that finalized PPAs would be available at 2:00 p.m. that afternoon.
Petitioners state that American Wind collected the PPAs from Idaho Power that
afternoon, signed and returned them the same day. Petitioners state that, upon returning
the PPAs, Idaho Power informed American Wind that it would sign the PPAs within the
next few days. Petitioners explain that American Wind contacted Idaho Power on
December 14, 2010, to inquire whether the PPAs had been signed but by late morning
they had not. Petitioners state that Idaho Power signed the PPAs on December 14, 2010
and submitted them to the Idaho Commission for approval on December 16, 2010.
12.Petitioners assert that the conduct occurring during the time period of December 9
through December 13, 2010 demonstrates that parties to the PPAs incurred a legally
enforceable obligation and that the Idaho Commission's June 8 order rejecting the PPAs
is inconsistent with PURPA as explained in the Commission's Cedar Creek order. 22
Petitioners argue that their circumstances are similar to those in Cedar Creek, where, they
state, the Commission found that, "as a general matter, when a state limits the methods
though which a legally enforceable obligation may be created to only a fully-executed
contract, the state's limitation is inconsistent with PURPA and our regulations
implementing PURPA."23
Notice of Filing and Responsive Pleadings
13.Notice of Petitioners' filing was published in the Federal Register, 77 Fed. Reg.
14,011 (2012), with interventions and protests due on or before March 22, 2012 The
Idaho Commission filed an answer. Idaho Power filed a motion to intervene and protest.
Exelon filed a motion to intervene. On March 29, 2012, Petitioners filed an answer to the
Idaho Commission's answer and Idaho Power's protest.
14.In its answer, the Idaho Commission states that it does not contest the
Commission's interpretation of PURPA, including the Commission's determinations
regarding legally enforceable obligations, as explained in Cedar Creek.24 Instead, the
22 1d. at 13.
23 1d at 14 (internal quotations omitted).
24 Idaho Commission Answer at 9.
Docket No. EL 12-41-000, et al. -6-
Idaho Commission argues that Petitioners' request for relief with the Commission
constitutes an "as applied" claim because, in its view, Petitioners assert that the Idaho
Commission's actions were unlawful .2`5 The Idaho Commission states that an "as
applied" dispute is reserved to state courts pursuant to section 210(g) of PURPA, and as
such, the Commission should deny Petitioners' request. 26
15.The Idaho Commission also asserts that the Petition is an impermissible collateral
attack on the Idaho Commission's Order on Reconsideration. 27 The Idaho Commission
states that, under Idaho state law, an aggrieved party may preserve its right to appeal by
filing a notice of appeal of an order on reconsideration within 42 days, and it may also
seek a stay of such order. 28 The Idaho Commission states that, because Petitioners failed
to file a notice of appeal, "[t]he July 27 Order must be afforded finality and is not
[subject] to collateral attack.„29 Thus, the Idaho Commission argues that the Commission
should dismiss the Petition 30 For support, the Idaho Commission cites to New York State
Elec. & Gas Corp. v. Saranac Power Partners, 117 F. Supp. 2d 211 (D.N.Y. 2000)
(NYSEG), asserting that it stands for the proposition that section 210(h)(2) of PURPA
does not empower the Commission to set aside Idaho state law, specifically those
provisions setting a time limitation on appeals. 31
16.In its protest, Idaho Power closely follows the arguments set forth by the Idaho
Commission, for example, presenting arguments that the Petitioners' request is an "as
applied” claim, and an impermissible collateral attack Additionally, Idaho Power asserts
that a petition for enforcement under section 210(h) of PURPA is time barred 32 Idaho
25 Id. at 7.
26
27 1n the Matter of the Application of Idaho Power Company for a Determination
Regarding a Firm Energy Sales Agreement Between Idaho Power and Rainbow Ranch
Wind, LLC, Order No. 32300, Case No. IPC-E- 10-59; In the Matter of the Application of
Idaho Power Company for a Determination Regarding a Firm Energy Sales Agreement
Between Idaho Power and Rainbow West Wind, LLC, Order No 32300, Case No IPC-E-
10-60, (Idaho Commission July 27, 2011) (Order on Reconsideration)
28 Idaho Commission Answer at 10-11.
29 1d. at 11.
30
31 1d. at 14.
32 Idaho Power Protest at 9.
Docket No. EL 12-41-000, et al. -7 -
Power also points to NYSEG 's stating that, if Congress fails to attach a statute of
limitations to a statute, a court should apply a statue of limitations of state origin most
closely related in its stead.Idaho Power explains that the Idaho statute of limitations
most closely related to section 210(h) of PURPA requires the aggrieved party to file a
notice of appeal within 42 days of the Idaho Commission's denial of reconsideration.
Idaho Power states that because Petitioners failed to file a notice of appeal in accordance
with Idaho state law, the Order on Reconsideration is final and the Commission must
deny the Petition.
17.Petitioners filed an answer to the Idaho Commission's answer and Idaho Power's
protest, stating that neither the Idaho Commission nor Idaho Power dispute the fact that
Petitioners (1) are QFs under PURPA, (2) signed PPAs with Idaho Power before
December 14, 2010, and (3) had their PPAs rejected by the Idaho Commission based on
the Idaho Commission's findings that the PPAs must be fully executed Based on these
facts, Petitioners state that they are entitled to the same findings contained in Cedar
Creek Petitioners state that, after the Commission issued Cedar Creek, the Idaho
Commission had reinstated certain PPAs it previously rejected, but only if the PPA was
associated with a pending appeal proceeding Petitioners argue that the Idaho
Commission should not condition reinstatement on appeal status, but should reinstate all
similarly situated PPAs, including Petitioners' PPAs.3
18.Petitioners, in their answer, also argue that section 210(g) and section 210(h) of
PURPA provide separate state and federal rights to an entity to challenge a state's
implementation of PURPA and explain that they interpret PURPA not to limit an entity's
ability to file a petition for enforcement under section 210(h) 36 Petitioners state that the
court in NYSEG explained that an exception to the rule regarding statutory interpretation
and limitation periods exists, and that the circumstances here require the Commission to
follow it. 37
Id. In its protest, Idaho Power cites NYSEG, 117 F. supp. 2d 211 at 247.
Petitioners' Answer at 5-6.
Id. Petitioners note that the Idaho Commission asked the Idaho Supreme Court
to remand a pending appeal by Grouse Creek Wind Farm, LLC for reconsideration. Id. at
6-7.
36 1d at 8-9.
"Id. at 11-12.
Docket No. EL12-41-000, et al. -8-
Discussion
Procedural Matters

19. Pursuant to Rule 214 of the Commission's Rules of Practice and Procedure, 18
C.F.R. § 385.214 (2011), timely, unopposed motions 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) (2011), prohibits an answer
to a protest or answer unless otherwise ordered by the decisional authority. We will
accept Petitioners' answer because it has provided information that assisted us in our
decision-making process.
Commission Determination

20, Petitioners ask the Commission to institute an enforcement action against the
Idaho Commission to enforce PURPA and this Commission's PURPA regulations
Specifically, Petitioners ask the Commission to enforce section 292.304(d)(2) of its
regulations 38 against the Idaho Commission as it relates to the Idaho Commission's
finding limiting the creation of a legally enforceable obligation only to QFs that have a
"Firm Energy Sales Agreement/Power Purchase Agreement [that is] executed, i.e., signed
by both parties to the agreement, prior to the effective date of the change in eligibility
criteria,"39 as promulgated in its June 8 order.40 In the alternative, if the Commission
refuses to initiate an enforcement action, Petitioners request the Commission to make a
number of findings, each, in their view, consistent with the Commission's Cedar Creek
order.4'

21. Section 210(h)(2)(B) of PURPA 42 permits any electric utility, qualifying
cogenerator, or qualifying sma1l 1power producer to petition the Commission to act under
section 21 0(h)(2)(A) of PURPA to enforce the requirement that a state commission
implement the Commission's regulations The Commission's enforcement authority
under section 210(h)(2)(A) of PURPA is discretionary. As the Commission pointed out
38 18 C F R § 292304(d)(2) (2011)
Idaho June 8 Order at 8.
40 Petition at 2.
41 1d. at 15.
42 16 U.S.C. § 824a-3(h)(2)(B) (2006).
16 U.S.C. § 824a-3(h)(2)(A) (2006).
Docket No. ELI 2-41-000, et at. -9-
in its 1983 Policy Statement, "the Commission is not required to undertake enforcement
action If the Commission does not undertake an enforcement action within 60 days of
the filing of a petition, under section 210(h)(2)(A) of PURPA, the petitioner then may
bring its own enforcement action directly against the state regulatory authority or non-
regulated electric utility in the appropriate United States district court.45
22.Here, we give notice that we do not intend to go to court to enforce PURPA on
behalf of Petitioners, Petitioners thus may bring their own enforcement action against
Idaho Commission in the appropriate court.
23.Notwithstanding our decision not to go to court to enforce PURPA on behalf of
Petitioners, we find that the similarities between the circumstances present in Cedar
Creek and in this proceeding, cause us to reiterate our findings in Cedar Creek, notably,
that "the requirement in the June 8 Order that a Firm Energy Sales Agreement/Power
Purchase Agreement must be executed by both parties to the agreement before a legally
enforceable obligation arises, is inconsistent with PURPA and our regulations
implementing PURPA, particularly section 292.304(d)(2) ,,46
24.Several similarities exist between the two proceedings that cause us to apply
Cedar Creek in this proceeding First, the Petitioners had certified themselves as QFs ''
Second, the Petitioners had entered into formal negotiations to enter into PPAs with
electric utilities prior to the new rules concerning eligibility for published avoided cost
rates went into effect 48 Third, the Petitioners signed the PPAs prior to that date as well '
Last, the Idaho Commission had rejected the PPAs in orders issued on June 8, 2011,
where both orders explained that the Idaho Commission had adopted a new rule limiting
methods that may be used to create a legally enforceable obligation ° Therefore, we find
44 Policy Statement Regarding the Commission's Enforcement Role Under Section
210 of the Public Utilities Act of 1978, 23 FERC 161,304, at 61,645 (1983) (1983 Policy
Statement).
' 16 U.S.C. § 824a-3(h)(2)(B) (2006). The Commission may intervene in such a
district court proceeding as a matter of right. Id.
46 Cedar creek, 137 FERC ¶ 61,006 at P 30.
47 See Id. P6.
48 See Id. P12.
49 See Id. P 8. Similarly to the Petitioners in this proceeding, the petitioner in
Cedar Creek signed its PPAs on December 13, 2010. Id.
50 See Id.
Docket No. EL 12-41-000, et al. -10-
the Idaho Commission's June 8 Order is inconsistent with PURPA, our regulations
implementing PURPA, and our findings in Cedar Creek for the reasons given in Cedar
Creek.
25.The Idaho Commission and Idaho Power nevertheless assert that the Idaho
Commission's June 8 order and the Order on Reconsideration are final and, as such,
Petitioners are barred from initiating a proceeding under section 2 10(h) of PURPA with
the Commission. We disagree.
26.The Idaho Commission and Idaho Power argue that the Petition constitutes an
impermissible collateral attack because, as the Idaho Commission and Idaho Power
claim, Petitioners failed to file a notice of appeal with the Idaho Supreme Court to
preserve Petitioners' appeal The Idaho Commission and Idaho Power argue that,
because Petitioners failed to file such notice of appeal, the Idaho Commission's June 8
order and the Order on Reconsideration are final, and cannot be challenged at the
Commission Additionally, the Idaho Commission and Idaho Power argue that the
Petition constitutes an "as applied" claim, thus prohibiting Petitioners from seeking relief
in federal court.
27.We are not persuaded by these arguments and find that the Petition is
appropriately before the Commission Section 210(g) and section 210(h) of PURPA
provide for separate state and federal rights to challenge a state's implementation of
PURPA A state's implementation of PURPA and the Commission's rules implementing
PURPA may be challenged either through the state courts under section 210(g) of
PURPA, or separately at the Commission under section 210(h) of PURPA, or both The
Commission has stated that, in section 210 of PURPA:
Congress has provided not only for private causes of action in
State courts to obtain judicial review and enforcement of the
implementation of the Commission's rules under Section 210,
but also provided that the Commission may serve as a forum
for review and enforcement of the implementation of this
program.511
Small Power Production and Cogeneration Facilities; Regulations
Implementing Section 210 of the Public Utility Regulatory Policies Act of 1978, Order
No. 69, FERC Stats. & Regs. ¶ 30,128, at 30,893, order on reh'g, Order No. 69-A, FERC
Stats. & Regs. 130,160 (1980), aff'd in part and vacated in part, American Electric
Power Service Corporation v. FERC, 675 F.2d 1226 (D.C. Cir. 1982), rev 'din part,
American Paper Institute, Inc. v. American Electric Power Service Corporation, 461 U.S.
402 (1983).
Docket No. EL12-41-000, et al. - 11 -
28.There is, in fact, no language in section 210(h) that suggests that section 210(h)
rights are only available to challenge state actions if section 210(g) rights are first
exercised To the contrary, each is a separate grant of rights to challenge state actions—
as the Commission noted in 1980, as just quoted above, when first adopting its
regulations implementing PURPA.
29.Therefore, we find that, regardless of the procedural posture of a petition brought
in a proceeding under section 210(g) of PURPA, and, regardless even of a decision not to
proceed under section 210(g), a petitioner may still pursue relief under section 210(h).52
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 Idaho Commission's June 8 Order is
inconsistent with PURPA and the Commission's regulations as discussed in the body of
the order.
By the Commission.
(SEAL)
Kimberly D. Bose,
Secretary.
52 With respect to the Idaho Commission's and Idaho Power's reliance on NYSEG,
the court itself acknowledged that the rule of statutory construction it relied on is not
absolute but rather is subject to certain exceptions, in particular stating that "[a]
exception to this rule applies when application of a state limitations period would
frustrate or interfere with the implementation of national policies or be at odds with the
purpose or operation of federal substantive law" NYSEG, 117 F Supp 2d at 246-47
We do not mean to suggest, on the other hand, however, that a party upset with a
particular state action has an unlimited time in which to challenge that action under
section 210(h) Whether any such challenge is time-barred is a matter to be resolved
based on the facts of the case Here, on these facts, we do not find it appropriate to rule
Petitioners' filing with us was so delayed as to warrant our finding it time-barred.