20150522Decision Memo.pdf

DECISION MEMORANDUM 1
DECISION MEMORANDUM

TO: COMMISSIONER KJELLANDER
COMMISSIONER REDFORD
COMMISSIONER RAPER
COMMISSION SECRETARY
COMMISSION STAFF
DAPHNE HUANG

FROM: DON HOWELL
DEPUTY ATTORNEY GENERAL

DATE: MAY 21, 2015

SUBJECT: ECOPLEXUS’S LATE PETITION TO INTERVENE IN CONSOLIDATED
PURPA CASES AND OBJECTIONS TO INTERVENTION, CASE NOS.
IPC-E-15-01, AVU-E-15-01, PAC-E-15-03

On May 12, 2015, Ecoplexus petitioned to intervene in the consolidated Idaho Power
case to reduce the length of IRP-based PURPA contracts. Ecoplexus asserted it has a direct and
substantial interest in this matter as the developer of several proposed solar projects totaling 160
MW in Idaho Power’s service territory and 280 MW in Rocky Mountain Power’s service
territory. Petition to Intervene at 2. The Company acknowledged that its Petition to Intervene
was not timely, however, it initially alleged that it “was not aware of this proceeding until
recently.” Id. at 2. Ecoplexus maintained that its intervention “will not broaden the issues, delay
the proceedings or result in prejudice to any party.” Id.
On May 19, 2015, Ecoplexus filed an “errata” to its Petition to Intervene wherein the
solar developer acknowledged it had received actual notice from Idaho Power in February 2015
by letter, stating “the utility advised Ecoplexus that it had filed a Petition in this case.” Errata at
1.1 Although Ecoplexus acknowledged it had received notice of Idaho Power’s Petition, the
developer continued to maintain it “has a substantial interest in this case and its participation in
these proceedings will not result in any prejudice to any party.” Errata at 2.
Ecoplexus outlined several issues in its Petition that it desires to address in this case.
First, the Company believes that any relief granted by the Commission to shorten IRP-based
1 The errata also corrected Ecoplexus’s initial assertion that it was not aware of the case in its Motion to Late File
Direct Testimony.
DECISION MEMORANDUM 2
PURPA contracts be individually tailored to each utility’s specific circumstances. Id. at 3.
Second, the Company indicated it “wishes to address” whether proposed PURPA projects that
have “pricing and energy service agreements” with the three utilities “should be treated
differently, i.e., grandfathered into previous terms and conditions, than those that seek pricing
and energy service agreements after such order.” Id. (emphasis added).
BACKGROUND
On January 30, 2015, Idaho Power filed a timely Petition requesting that the
Commission issue an Order reducing the length of IRP-based PURPA contracts from 20 years to
two years. In Order Nos. 33222 and 33250, the Commission granted temporary relief to Idaho
Power, Avista and Rocky Mountain Power while the Commission investigates the issue of
contract length. The Commission also directed “the parties to establish an expedited case
schedule.” Order No. 33222 at 4 (emphasis added). The Order set a deadline for intervention in
the consolidated proceeding of February 20, 2015.
On March 10, 2015, the parties held a prehearing conference and agreed to a schedule
for processing this case. In Order No. 33253, the Commission adopted the parties’ proposed
procedural schedule and set direct and rebuttal prefile testimony deadlines for Staff/Intervenors
as April 23 and May 14, 2015, respectively. Order No. 33253 at 5. The utilities are to file their
rebuttal testimony no later than June 11, 2015. The Commission set the technical hearing to
begin on June 29, 2015.
IDAHO POWER’S OPPOSITION
On May 19, 2015, Idaho Power filed a timely answer opposing Ecoplexus’s Petition
to Intervene. Idaho Power generally objected to the developer’s intervention because Ecoplexus
failed to state good cause for its untimely filing. The utility also alleged that late intervention
will disrupt the proceedings, prejudice existing parties, and unduly broaden the issues in this
case. Idaho Power Objection at 3. In the alternative, Idaho Power argued that if the Commission
is inclined to grant intervention, such intervention be conditioned upon: (1) not disrupting the
hearing schedule; and (2) barring Ecoplexus from unduly broadening the issues by addressing
“grandfathering.”
1. Ecoplexus Received Actual Notice. Idaho Power asserted Ecoplexus’s sole basis
for its delay and untimeliness in seeking intervention is that it was not aware of the proceeding.
Id. at 3-4 citing Petition at 2. Idaho Power stated that it provided actual notice of its January 30,
DECISION MEMORANDUM 3
2015 Petition, to the developer on the very next business day, February 2, 2015. Id. at 4; Atch. 1
(“On January 30, 2015, Idaho Power filed with the IPUC a petition requesting the IPUC to
modify terms and conditions of prospective PURPA Energy Sales Agreements (PUC Case
No.IPC-E-15-01).”).
In addition to receiving actual notice, Idaho Power noted that the Commission has
issued several Orders in this matter since February 6, 2015. Idaho Power stated that Ecoplexus
has not explained why its Petition to Intervene was filed at this late date especially “when the
evidentiary submissions from Staff and the intervening parties are now closed (as of May 14,
2015). . . .” Id. at 4. Consequently, the Company urged the Commission to deny the Petition to
Intervene because Ecoplexus failed to provide a substantial reason for its untimely filing.
2. Late Intervention Will Disrupt the Proceedings. Idaho Power next insisted that
granting intervention at this late date will disrupt the schedule in this expedited proceeding.
Idaho Power observed that the developer’s Petition was filed well after the deadline for
intervention (about three months), well after the deadline for Staff and Intervenor direct
testimony (about one month), and just two days before Staff and Intervenor rebuttal testimony
was due.2 At this stage of the proceeding, Staff and Intervenors have filed all their testimonies
and the three utilities are in the process of preparing rebuttal to all the parties’ direct and rebuttal
testimony. The utilities’ rebuttal testimony is due no later than June 11, 2015. Responding to
Ecoplexus’s Petition is a substantial disruption and hardship for Idaho Power at this stage of the
proceeding. Id. at 5.
Allowing “Ecoplexus to participate without modifying the schedule, or allowing
untimely submissions, [will] disadvantage[] all of the parties to the proceeding.” Id. at 6.
Granting intervention will also lengthen the technical hearing. Granting intervention at this late
stage also denies the other parties the opportunity for discovery and timely assessment of issues
as they relate to Ecoplexus. Idaho Power observed that at this point in the schedule, discovery is
complete and “it is highly prejudicial to allow a new potential party to join.” Id. Consequently,
the Commission should deny intervention.
3. Unduly Broaden the Issues. Despite Ecoplexus’s assurance that is intervention
will not broaden the issues, the developer’s Petition reveals that it desires to introduce at least

2 Idaho Power recognized that Ecoplexus also filed a Motion to allow late-filed direct testimony on May 18, 2015
(the day before Idaho Power filed its objection to intervention). Idaho Power noted that it intends to separately
object to this Motion and will do so within the next seven days.
DECISION MEMORANDUM 4
one new issue. More specifically, Idaho Power points to Ecoplexus’s Petition to Intervene where
the developer stated that it wishes to address whether proposed QF projects should be
“grandfathered into previous terms and conditions.” Idaho Power Answer at 7 citing Petition to
Intervene at 3. Idaho Power also recognized in a footnote that Ecoplexus submitted a Motion to
Late File Direct Testimony on May 18, 2015. “In this testimony, Ecoplexus clearly intends to
broaden the scope into issues of legally enforceable obligation and grandfathering.” Idaho
Power Answer at p. 7, n.1. Introduction of these new issues will certainly broaden the issues.
4. The Alternative. If the Commission is inclined to grant late intervention, Idaho
Power urged the Commission to limit Ecoplexus’s participation to that of “an interested person
and allow its witness to testify as a public witness pursuant to Commission Rules 39 and 76.”
Allowing the developer limited intervention will permit it to receive notice and service and its
witness may submit written comments prior to the completion of the technical hearing. Idaho
Power concluded that limiting Ecoplexus’s participation strikes an appropriate balance between
due process for the other parties and allowing the developer to submit comments into the record.
Id. at 8.
ROCKY MOUNTAIN POWER’S OBJECTION TO LATE INTERVENTION
On May 20, 2015, Rocky Mountain Power electronically filed an untimely objection
in opposition to Ecoplexus’s Petition to Intervene. Rocky Mountain’s e-mail transmittal letter
indicated that the original and seven copies will arrive at the Commission’s office on May 21,
2015.3
Rocky Mountain’s objection noted that the Commission’s Order No. 33250 issued
March 13, 2015, consolidated Rocky Mountain’s and Avista’s Petitions with the Idaho Power
case. Order No. 33250 directed that any person desiring to intervene must do so no later than
March 27, 2015. Order No. 33250 at 6. Rocky Mountain asserted that Ecoplexus’s late Petition
to Intervene was filed about six weeks after the March 27 deadline.
In its objection, Rocky Mountain incorporated those arguments raised by Idaho
Power’s objection set out above. Rocky Mountain Objection at 3. In addition, Rocky Mountain
also urged the Commission to deny intervention because the interests of Ecoplexus “will be
covered to a large extent by parties with similar interests who timely intervened and filed at least

3 As noted below, objections to Ecoplexus’s Petition were due no later than May 18, 2015.
DECISION MEMORANDUM 5
one round of testimony already.” Id. Rocky Mountain also alleged that it provided Ecoplexus
with notice by providing the pending case number to the solar developer.
STANDARDS FOR GRANTING INTERVENTION
The Commission’s Rule 73 discusses the timeliness of petitions to intervene. It states
that petitions not timely filed
must state a substantial reason for delay. The Commission may deny or
conditionally grant petitions to intervene that are not timely filed for failure to
state good cause for untimely filing, to prevent disruption, prejudice to
existing parties or undue broadening of the issues, or for other reasons.
Intervenors who do not file timely petitions are bound by orders and notices
earlier entered as a condition of granting the untimely petition.

Rule 73, IDAPA 31.01.01.073. Moreover, Rule 73 states that late-filed intervenors “are bound
by orders and notices earlier entered as a condition of granting the untimely petition.” Id. Thus,
Ecoplexus is bound by the Commission-approved scheduled.
Rule 75 provides that parties opposing a petition to intervene must do so within seven
days after receipt of the petition to intervene. IDAPA 31.01.01.075. The Commission Secretary
received Rocky Mountain’s electronic filing on May 20, 2015 – eight days after Ecoplexus’s
filed its Petition to Intervene.
Ecoplexus’s “Certificate of Service” for its Petition to Intervene indicated that it
served the Petition on the parties by electronic mail. However, the Certificate of Service does
not indicate the exact date the electronic was served on the parties because the date of service
was not filled in. Commission Rule 61 governs electronic filings. Rule 61.03 prohibits the use
of electronic mail for any documents except those authorized by subparagraph 03. IDAPA
31.01.01.061.03. Objections to petitions to intervene is not one of the listed documents that may
be filed by electronic mail.
COMMISSION DECISION
1. Does the Commission find that Rocky Mountain’s objection is timely under the
procedural rules?
2. Does the Commission find good cause for Ecoplexus’s late-filed Petition?
3. Does the Commission wish to grant or deny intervention to Ecoplexus?
4. If intervention is granted, does the Commission wish to condition such
intervention?
DECISION MEMORANDUM 6
5. Anything else?

Don Howell
Don Howell
Deputy Attorney General

bls/M:IPC-E-15-01_dh_Late Intervention