20100729Complaint.pdf

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Peter Richardson
Tel: [phone] Fax: [phone]
pete rli richardso n andol eary. com
P.O. Box 7218 Boise. ID 83707 - 515 N. 27th St. Boise. ID 83702
July 29, 2010
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
PO Box 83720
Boise ID 83720-0074
RE: Case No. PAC - E -10 -06
Dear Ms. Jewell:
Enclosed please find an original and seven (7) copies of the COMPLAINT ON
BEHALF OF XRG-DP-7, LLC; XRG-DP-8, LLC; XRG-DP-9, LLC AND XRG-DP-10,
LLC against PacifiCorp, doing business in Idaho as Rocky Mountain Power.
I have also enclosed an extra copy to be serviæ-dated and returned to us for
our files. Thank you.
Sinærely,~fi\
Nina Curtis
Administrative Assistant
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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(ßrichardsonandoleary.com
greg(ßrichardsonandolear. com
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Attorneys for Complainants XRG-DP-7, XRG-DP-8, XRG-DP-9, XRG-DP-I0, LLCs
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
XRG-DP-7, XRG-DP-8, XRG-DP-9, XRG-DP- )10, LLCs, ) Case No. f;E - /0,- ò8Complainants, )
) FORMAL COMPLAINTvs. )
)PACIFICORP, DBA ROCKY MOUNTAIN )POWER, )
Defendant.
1 INTRODUCTION
2 This is a formal complaint fied by XRG-DP-7, XRG-DP-8, XRG-DP-
3 9, XRG-DP-1O, LLCs (collectively "XRG") with the Idaho Public Utilties Commission (the
4 "Commission") pursuant to Idaho Administrative Rules 31.01.01.054. Prior to March 16,2010,
5 XRG requested, that PacifiCorp, DBA Rocky Mountain Energy ("PacifiCorp" or the
6 "Company"), execute standard Public Utility Reguatory Policies Act of 1978 ("PUR A")
7 power purchase agreements ("PPAs") for qualifying facilities ("QFs") under 1 0 average monthy
8 mega-watts ("aMW) for XRG's wind energy QFs near Malta, Idaho. Because PacifiCorp has
9 rejected XRG's attempt to obligate itself to the terms ofa stadard PPA at the published avoided
Page 1- Formal Complaint ofXRG
1 cost rates effective prior to March 12,2010, XRG respectfully requests that the Commission
2 issue a declaratory judgment that XRG is entitled to such PP As and fuher requests that the
3 Commission order PacifiCorp to enter into PPAs at the rates in effect prior to March 12, 2010.
4 PRELIMINARY MATTERS
5 Copies of all pleadings and other correspondence in this matter should be served upon
6 counsel for XRG at:
7 Peter J. Richardson8 Gregory M. Adams9 Richardson & O'Leary, PLLC10 515 N. 27th Street11 P.O. Box 721812 Boise, Idaho 8370213 Telephone: [phone] Fax: [phone]
peterCfrichardsonandoleary.com15 gregCfrichardsonandoleary.com
16
17 In support of this Complaint, XRG alleges as follows:
18 IDENTITY OF PARTIES
19 1.PacifiCorp does business in Idaho as Rocky Mountain Energy. PacifiCorp
20 Company is an electric company and a public utility subject to the jurisdiction and regulation of
21 the Idaho Public Utilities Commission pursuant to I.C. § 61-129. PacifiCorp is subject to the
22 jurisdiction of the Commission, the Public Utility Commission of Oregon, and the Federal
23 Energy Regulatory Commission ("FERC").
24 2.XRG are Idaho limited liability companies, and the address of its principle place
25 of business is XRG 802 West Banock Street, Boise, Idaho.
26 JURISDICTION
Page 2 - Formal Complaint ofXRG
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3. This case involves PURA'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 possesses jurisdiction
over complaints regarding rates of public utilities, including PURPA rates. I.C. §§ 61-129, -501.
-502, -503, -612; see also Afton Energy Inc. v. PacifCorp 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. Utilities 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
utilty'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 of Intent Not to Act and Declaratory Order,"
129 FERC ~ 61,148, at p. 10-11 (November 19,2009).
FACTUAL BACKGROUND
5. XRG has been actively engaged in the development of a 4 wind energy projects
near Malta, Idaho for the past several years.
6. Thee of the four XRG projects will be nameplate 20 MW and the four will be
nameplate 10 MW, and each is a self-certified QF under PURPA.
Page 3 - Formal Complaint ofXRG
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7. XRG must secure a power purchase agreements with PacifiCorp - the nearest
utilty, and XR.G therefore initiated contact with PacifiCorp in 2007.
8. Over the three years since initiating contact with PacifiCorp, XRG has incured
substatial expenses. PacifiCorp has indicated that interconnection and transmission capacity
may be an issue, but XRG does not believe it is insurountable.
9. XRG has also had extensive contact with PacifiCorp regarding PPAs for the
project, and in response toXRG's request, PacifiCorp delivered one draft PPA to XRG in May
2009, containing the avoided cost rates contained in Order No. 30744. But PacifiCorp has not
delivered any of the other three contracts to XRG.
10. In par in reliance on the rate structue contained in that draf PPA, XRG has
made substatial investments in development of the project, including finalizing site control, and
indentifying potential equity and debt financing opportities.
11. Neverteless, before the service date of Order No. 31025 and the new rates
contained therein, XRG provided PacifiCorp with the essential elements regarding the four
projects to complete the PPAs with the rates contained in Order No. 30744. XRG obligated itself
to enter into four draf PP As for the projects.
12. On March 9,2010, PacifiCorp received a letter from the Commission's Staff,
stating that the published avoided cost rates would be recalculated. The letter included Stas
recalculation of the avoided cost rates, which were substatially lower than those in Order No.
30744 and included in the draft PPA PacifiCorp sent to XRG.
13. PacifiCorp concured in Staffs recalculation on March 12,2010, without
providing XRG with notice of Staffs recalculated rates or PacifiCorp's concurence.
Page 4 - Formal Complaint of XRG
1 LEGAL CLAIM
2 Complainant's Claim for Relief
3 PacifiCorp is in violation of PUR A, FERC's regulations and orders, and the
4 Commission's orders by failing to provide XRG with a power purchase agreement with
5 published avoided cost rates in effect prior to March 12,2010.
6 14. XRG re-alleges and incorporates paragraphs I - 13.
7 15. XRG has attempted in good faith to engage in negotiations to obtain fully
8 executed power purchase agreements to deliver energy and capacity to PacifiCorp from its four
9 wind projects and has provided PacifiCorp with the essential, project-specific elements for such
10 agreements prior to March 12,2010.
11 16. XRG committed itself to sell energy and capacity from its QF t? PacifiCorp prior
12 March 12,2010, and, consequently, XRG committed PacifiCorp to buy from XRG's QF at the
13 rates on file prior to March 12.
14 17. These commitments result in non-contractual, but binding, legally enforceable
15 obligations. 18 C.F.R. § 292.304(d)(2)(ii); JD Wind 1, LLC, 129 FERC ~ 61,148, at pp. 10-11.
16 18. By failng to provide publicly available standard PPA terms and conditions, and
17 delaying its responses to XRG's binding offers to enter into four PURPA PPAs for its wind QFs
18 near Malta, Idaho, PacifiCorp is in violation ofPURPA, FERC's implementing regulations, and
19 the Commission's orders. See 16 U.S.C. § 824a-3(a)(2); 18 C.F.R. § 292.304(d)(2)(ii); Blind
20 Canyon Aquaranch v. PacifCorp Company, Case No. IPC-E-94-1, Order No. 25802
21 (November 1994).
22 PRAYER FOR RELIEF
23 WHEREFORE, XRG respectfuly requests that the Commission issue an Order:
Page 5 - Formal Complaint ofXRG
1 1.Declarng that PacifiCorp is in violation ofPURPA, FERC's implementing
2 reguations, and the Commission's orders.
3 2.Requiring PacifiCorp to execute stadard PURPA power purchase agreements for
4 XRG's four QF projects at PacifiCorp's avoided cost rates on file for QFs under 10 aMW prior
5 to March 12,2010.
6 3.Granting any other relief that the Commission deems necessar.
Respectfully submitted this 29th day of July 2010,
63.
Peter J. Richardson
Attorney for XRG
ISB No: 3195
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Page 6 - Formal Complaint ofXRG