In a May 6 order, the North Carolina Utilities Commission set up a schedule for review of an April 10 complaint from several related solar project development companies over a dispute with Virginia Electric and Power d/b/a Dominion North Carolina Power about qualifying facility obligations.
On April 10, Fresh Air Energy XXV LLC, Fresh Air Energy XXXIII LLC, Fresh Air Energy XIX LLC, Fresh Air Energy II LLC and Fresh Air Energy XXVII LLC, plus Ecoplexus Inc., filed a verified complaint and Request for declaratory ruling against Dominion North Carolina Power (DNCP). They are developing solar qualifying facility (QF) projects located in DNCP’s service territory and they say that each is entitled to sell power to DNCP under terms established under the Public Utility Regulatory Policies Act of 1978 (PURPA).
In addition, the Solar QFs allege that each of them has obtained a certificate of public convenience and necessity (CPCN) from the North Carolina commission authorizing construction of its facility, and that each Solar QF has committed to sell its electric output to DNCP under a negotiated long-term power purchase agreement (PPA) for qualifying facilities having a capacity in excess of 5 MW, thus creating a legally enforceable obligation (LEO) upon DNCP to purchase their electrical output. Complainants maintain that the dates of the LEOs range from June 2014 to October 2014, based mainly on the date that the commission issued a CPCN order in which it was stated that the Solar QF plans to sell its electricity to DNCP.
There is a dispute between complainants and DNCP as to the date on which the LEO for each Solar QF was established, and they claim that DNCP has failed to provide the complainants with proposed rates or a draft PPA to initiate the PPA negotiation process.
The relief requested by complainants is that the commission treat their complaint as a request for declaratory judgment, declare that each of the Solar QFs has a legally enforceable obligation with regard to its sale of power to DNCP on the specific dates set forth in the complaint, and order DNCP to provide proposed rates and a draft PPA to each of the Solar QFs.
On May 1, DNCP filed a response that discusses the commission’s two-pronged LEO test requiring that the QF have a CPCN and that it has made a commitment to sell its electric output to a utility pursuant to a PPA. DNCP admits that each of the Solar QFs has obtained a CPCN from the commission. Further, DNCP agreed that each of the Solar QFs indicated to DNCP in writing, by email to DNCP’s Power Contracts Department dated February 26, 2015, that the Solar QF was committed to selling its output to DNCP pursuant to a PPA to be negotiated between each Solar QF and DNCP.
However, DNCP contends that three of the Solar QFs – Fresh Air Energy XXV (Vaughn’s Creek facility), Fresh Air Energy II (Turkey Creek facility) and Fresh Air Energy XXXVII (Pleasant Hill facility) – had not become qualifying facilities under PURPA prior to obtaining their CPCNs and making the February 26, 2015 commitment to sell their output to DNCP. Therefore, according to DNCP, these three facilities did not establish their LEOs until they became QFs on April 6, 2015, March 23, 2015, and April 6, 2015, respectively. With regard to the status of the two remaining Solar QFs – Fresh Air Energy XXXIII (Grandy facility) and Fresh Air Energy XIX (American Legion facility), DNCP maintains that their LEOs were established on February 26, 2015, as they had met the commission’s two-pronged LEO test and were certified as qualifying facilities under PURPA on that date
The commission’s May 6 scheduling order said that by May 29, the complainants and DNCP need to file briefs supporting their positions with regard to the question of when LEOs were established for each of the Solar QFs and the other issues presented by the complainants. The complainants and DNCP may file reply briefs on or before June 10, with June 15 scheduled for oral arguments.
The project companies are all affiliates of Ecoplexus, which has a principal place of business located in San Francisco, California. Their projects are:
- Fresh Air Energy XXV, Vaughn’s Creek PV1, 19.99 MW;
- Fresh Air Energy XXXIII, Grandy PV1, 19.99 MW;
- Fresh Air Energy XIX, American Legion PV1, 16.5 MW;
- Fresh Air Energy II, Turkey Creek PV1, 13.5 MW; and
- Fresh Air Energy XXXVII, Pleasant Hill PV1, 12 MW.