20100406Complaint.pdf

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Peter J. Richardson
Gregory M. Adams
Richardson & O'Lear, PLLC
515 N. 27th Street
P.O. Box 7218
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
peter(frichardsonandoleary.com
gre g(frichardsonandolear. com
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Attorneys for Complainant Windland, Inc.
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
WINDLAND, INC.,
Complainant,)
) Case No. PAc'-15~1 O-os-
)
) FORMAL COMPLAIT
)
)
)
)
vs.
PACIFICORP,
Defendant.
1 INTRODUCTION
2 This is a formal complaint filed by Windland, Inc. ("Windland") with the Idaho Public
3 Utilities Commission (the "Commission") pursuant to Idaho Administrative Rules 31.01.01.054.
4 Prior to March 12,2010, Windland repeatedly requested, that PacifiCorp, dba Rocky Mountain
5 Power ("PacifiCorp"), execute two standard Public Utilty Regulatory Policies Act of 1978
6 ("PURP A") power purchase agreements ("PP As") for wind qualifying facilities ("QFs") under
7 10 aMW for Windland's two QFs -Power County Wind Park North and Power County Wind
8 Park South. Because PacifiCorp has refused to enter into such PPA's at the published avoided
9 cost rates effective prior to March 12,2010, Windland respectfuly requests that the Commission
10 issue a declaratory judgment that Windland is entitled to such PP As and fuer requests that the
Page 1 - Formal Complaint of Wind land, Inc.
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1 Commission order PacifiCorp to enter into two PPAs at the rates in effect prior to March 12,
2 2010.
3 PRELIMINARY MATTERS
4 Copies of all pleadings and other correspondence in this matter should be served upon
5 counsel for Windland at:
6 Peter J. Richardson7 Gregory M. Adams8 Richardson & O'Lear, PLLC9 515 N. 27th Street10 P.O. Box 721811 Boise, Idaho 8370212 Telephone: [phone] Fax: [phone]
peter(frichardsonandoleary.com
14 greg(frichardsonandoleary.com
15
16 In support of this Complaint, Windland alleges as follows:
17 IDENTITY OF PARTIES
18 1.PacifiCorp is an Oregon corporation that conducts business in the intermountain
19 states of Idaho, Utah, and Wyoming as Rocky Mountain Power. PacifiCorp is a public utility
20 subject to the jursdiction and reguation ofthe Idaho Public Utilities Commission pursuant to
21 I.C. § 61-129. PacifiCorp is also subject to the jurisdiction of, among others, the Federal Energy
22 Regulatory Commission ("FERC") and the Public Utility Commission of Oregon.
23 2.Windland, Inc., a California corporation is a developer of wind energy projects,
24 with its principle place of business being located at 7669 W. Riverside Drive, Suite 102, Boise,
25 Idaho 83714. Windland, Inc. is the manager and sole member of Power County Wind Park
26 North, LLC and Power County Wind Park South, LLC.
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Page 2 - Formal Complaint of Wind land, Inc.
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JURISDICTION
3. Ths case involves PURPA's avoided cost provisions and FERC implementing
regulations thereto, which PURPA directs states to implement. See 16 U.S.C. § 824a-3 (a)-(g);.
FERC v. Mississippi, 456 U.S. 742, 751 (1982). In Idaho, the Commission p9ssessesjurisdiction
over complaints regarding rates of public utilties, including PURPA rates. I.C. §§ 61-129, -501.
-502, -503, -612; see also Afton Energy Inc. v. Idaho Power Co., 111 Idaho 925, 929, 729 P. 2d
400, 404 (1986). The Commission has jurisdiction to issue declaratory judgments regarding
utility contracts pursuant Idaho's Declaratory Judgment Act, I.C. § 10-1203. See Utah Power
and Light v. Idaho Pub. Utilties Commission, 112 Idaho 10, 12, 730 P.2d 930,932 (1986).
APPLICABLE LAWS AND REGULATIONS
4. Section 210 ofPURPA requires electric utilities to purchase power produced by
small power producers that obtain QF status under section 201. 16 U.S.C. § 824a-3(a)(2). FERC
rules provide QFs with the option of sellng electrcity and capacity to a utility based on the
utility's "avoided costs" at the time the QF incurs a legally enforceable obligation to deliver
energy or capacity over a specified term. See 18 C.F.R. § 292.304(d)(2)(ii). Thus, "a QF, by
committing itself to sell to an electric utility, also commits the electric utilty to buy from the QF;
these commitments result either in contracts or in non-contractual, but binding, legally
enforceable obligations." JD Wind 1, LLC, "Notice ofIntent Not to Act and Declaratory Order,"
129 FERC ir 61,148, at p. 10-11 (November 19,2009).
FACTUAL BACKGROUND
5. Windland possesses leases and other rights to develop the wind resources in
Power County, Idaho.
Page 3 - Formal Complaint of Wind land, Inc.
1 6. In 2007, Windland engaged in negotiations with PacifiCorp for PacifiCorp to
2 purchase the rights to develop a utilty scale wind project at Windland's site in Power County.
3 7. As par of those negotiations, Windland granted consent for PacifiCorp
4 Transmission to communicate with PacifiCorp Commercial and Trading, and PacifiCorp
5 Transmission completed interconnection studies for a wind project of up to 150 MW. PacifiCorp
6 made no indication at that time that interconnection or transmission would present problems for
7 bringing the project online.
8 8. Those 2007 negotiations did not result in PacifiCorp acquiring any of Wind land's
9 Power County wind or other rights.
10 9. Subsequently, Windland pursued independent development of two separate wind
11 projects utilzing its Power County wind rights - the Power County Wind Park North and the
12 Power County Wind Park South.
13 10. Power County Wind Park North and Power County Wind Park South each
14 possess a nameplate capacity of21.6 MW, and are each QFs under PURPA entitled to power
15 purchase agreements at PacifiCorp's published avoided cost rates for QFs under 10 aMW.
16 11. In Febru 2010, Windland provided PacifiCorp with the essential elements of
17 20-year PURPA power purchase agreements for these two QFs and committed itself to deliver
18 energy and capacity from the QFs to PacifiCorp pursuant to those essential elements at the non-
19 levelized rates for non-fueled projects approved by the Commission in Order No. 30744.
20 Windland committed to use the same point of interconnection for both projects as that studied by
21 PacifiCorp contemporaneously with the parties' 2007 negotiations regarding Windland's Power
22 County wind rights.
Page 4 - Formal Complaint of Windland, Inc.
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12. PacifiCorp does not have on file in Idaho a list of information Idaho QFs must
provide for PacfiCorp to complete a stadard PURP A power purchase agreement. So Windland
provided to PacifiCorp, among other information, each of the eleven (11) items of information
(a) though (k) contained in PacifiCorp's Schedule 37 on file with the Public Utilty Commission
of Oregon. Those are the items PacifiCorp states QFs must provide to receive a power purchase
agreement in Oregon.
13. Windland has diligently responded to PacifiCorp's additional information
requests. Windland has reiterated its commitments to deliver energy and capacity, and has not
changed the essential elements of its proposed contracts.
14. PacifiCorp has delayed the process to achieving executed power purchase
agreements by, among other actions, failing to make publicly available to QFs a list of required
project information for inclusion in a PP A or a standard PURP A contract.
15. PacifiCorp also delayed the process by insisting on information regarding
Windland's creditworthiness, which is irrelevant to a PURP A contract - paricularly in the
context with non-Ievelized rates that are not front-loaded where overpayment in excess of
avoided cost rates canot occur.
16. PacifiCorp likewise delayed by insisting on delay securty of$45/kW as
liquidated damages for Windland's failure to achieve the contracts' projected online dates.
PacifiCorp inisted on delay securty knowing that the market rates to purchase energy at the
projected online date are below the published PUR A avoided cost rates. Therefore, PacifiCorp
should have known it would incur no daages if it were forced to mitigate in the event of a delay
default by purchasing the power on the market to meet its load requiements.
Page 5 - Formal Complaint of Windland, Inc.
1 17. To date, PacifiCorp has refused to execute final standard PURPA contracts for
2 Windland's Power County Wind Park North and Power County Wind Park South QFs.
3 LEGAL CLAIM
4 Complainant's Claim for Relief
5 PacifCorp is in violation of PURP A, FERC's regulations and orders, and the
6 Commission's orders by failng to provide Windland with power purchase agreements at
7 published avoided cost rates in effect prior to March 12,2010.
8 18. Windland re-alleges and incorporates paragraphs 1 - 17.
9 19. Windland has attempted in good faith to engage in negotiations to obtain fully
10 executed power purchase agreements to deliver energy and capacity to PacifiCorp from the
11 Power County Wind Park Nort and Power County Wind Park South QFs, and provided
12 PacifiCorp with the essential elements for such agreements prior to and again on March 12,
13 2010.
14 20. Windland committed itself to sell energy and capacity from those two QFs to
15 PacifiCorp prior to and again on March 12, 2010, and, consequently, Windland committed
16 PacifiCorp to buy from the QFs at the rates on file prior to March 12.
17 21. These commtments result in non-contractual, but binding, legally enforceable
18 obligations. 18 C.F.R. § 292.304(d)(2)(ii); JD Wind 1, LLC, 129 FERC ir 61,148, at pp. 10-11.
19 22. By demanding irrelevant information, by demanding liquidated damages for delay
20 default where no apparent damages exist, and by delaying its responses to Windland's binding
21 offers to enter into two PURP A power purchase agreements for the Power County Wind Park
22 North and Power County Wind Park South QFs, PacifiCorp is in violation ofPURPA, FERC's
23 implementing regulations, and the Commission's orders. See 16 U.S.C. § 824a-3(a)(2); 18
Page 6 - Formal Complaint of Wind land, Inc.
1 C.F.R. § 292.304(d)(2)(ii); Blind Canyon Aquaranch v. Idaho Power Company, Case No.
2 IPC-E-94-1, Order No. 25802 (November 1994).
3 PRAYER FOR RELIEF
4 WHEREFORE, Windland respectfuly requests that the Commission issue an Order:
5 1.Declaring that PacifiCorp is in violation ofPURPA, FERC's implementing
6 reguations, and the Commission's orders.
7 2.Requiring PacifiCorp to execute two stadard PURP A power purchase
8 agreements for Windland's Power County Wind Park North and Power County Wind Park South
9 QFs at PacifiCorp's avoided cost rates on file for wind QFs under 10 aMW prior to March 12,
10 2010.
11 3.Granting any other relief that the Commission deems necessar.
Respectfully submitted this 6th day of April 2010,fl.d~
Peter J. Richardson
Attorney for Windland, Inc.
ISB No: 3195
-'
Page 7 - Formal Complaint of Windland, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 6th day of April, 2010, a tre and correct copy of the
within and foregoing FORMAL COMPLAINT OF WIND LAND, INC. was served
in the maner shown to:
Jean Jewell
Commission Secretar
Idaho Public Utilities Commission
472 W Washington
Boise ID 83702
-. Hand Delivery
_U.S. Mail, postage pre-paid
Facsimile
Electronic Mail
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