BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

 

   

IN THE MATTER OF THE FORMAL COMPLAINT OF RESOLUTE WIND 1 AGAINST LEA COUNTY ELECTRIC COOPERATIVE

)

)

)

 

Case No. 18-00211-UT

 

NOTICE OF PROCEEDING

NOTICE is hereby given by the New Mexico Public Regulation Commission (“Commission” or NMPRC) of the following matter.

On July 11, 2018, Resolute Wind 1 LLC (“Resolute Wind” or “Resolute”) filed a petition requesting that the Commission declare that the Lea County Electric Cooperative (LCEC) has a legally enforceable obligation under the federal Public Utilities Regulatory Policies Act of 1978 (PURPA) to purchase the entire output of Resolute’s single-turbine wind project located in Hobbs, New Mexico, and to establish the energy and capacity rates to be paid by LCEC for such purchases, to be based on “avoided cost,” as this is defined in PURPA and the Commission’s rules.  The Commission determined that Resolute’s petition should be heard under the procedures for formal complaints.

On October 3, 2018, the Commission dismissed Resolute’s complaint.  Resolute appealed the dismissal to the New Mexico Supreme Court.  The Court issued an opinion on February 9, 2022, in which it concluded that the Commission acted unlawfully in dismissing Resolute’s complaint.   Upon remand from the Supreme Court, the Commission assigned this matter to a hearing examiner for a full evidentiary hearing.

Resolute Wind is a Texas limited liability company (LLC), which is registered as a foreign LLC in New Mexico.  In its original petition, Resolute states that (1) it has a purchase agreement for a two-megawatt (2 MW) wind turbine located in Gaines County, Texas, within 400 feet of the border with Lea County, New Mexico, that was abandoned by its former owner; (2) it holds the rights to the land lease for premises on which the turbine is located through an affiliate; and, (3) it is a “qualifying facility” (QF) under PURPA and enabling regulations at 18 C.F.R. Part 292. 

Respondent LCEC is a rural electric cooperative which is under the regulatory jurisdiction of the NMPRC.  Resolute states that it attempted to engage LCEC in negotiations leading to a power purchase agreement (PPA) for the output of its turbine.  LCEC eventually directed Resolute to attempt to negotiate the PPA with Western Farmers Electric Cooperative (WFEC), which LCEC asserts is LCEC’s wholesale supplier.

On May 1, 2018, WFEC told Resolute it would not agree to Resolute’ s terms, but that “as we are obligated by PURPA, WFEC stands ready to fulfill our PURPA obligations and purchase energy from your facility at avoided cost.”

The parties requested that these proceedings move forward in two phases in order to minimize cost and achieve efficiency.  That request was granted.

In phase I, matters which present as predominantly legal issues will be decided.  These issues include (a) Can LCEC transfer its PURPA purchase obligation to WFEC; (b) has a “Legally Enforceable Obligation (LEO)” under PURPA been created; (c) if there is a LEO, is the avoided cost rate based on WFEC’s avoided costs or LCEC’s (or are they the same); (d) is Resolute Wind entitled to a long-term avoided cost energy rate?; and (e) is Resolute Wind entitled to a long-term, avoided-cost, capacity rate?  Resolute Wind and LCEC have informed the hearing examiner that they believe they will be able to stipulate to most of or all the underlying facts that relate to these legal questions.

In phase II, the Commission will receive evidence on any facts that are determined relevant to establishing the avoided cost rate(s) or on any matters addressed in phase I that require factual development.  Phase II will involve a public hearing.  The scope of that hearing will become clear at the completion of phase I.  Any person interested in participating in the hearing or in receiving notice of the date of the hearing should intervene immediately as further notice of this proceeding will not be required to avoid imposing further costs on the parties.

Further information regarding this case can be obtained by contacting the Commission at the e-mail address and telephone number provided below.  Additional details regarding the procedural requirements for this proceeding are set forth in the procedural order issued by the hearing examiner on March 29, 2022, as modified by an errata issued March 30, 2022.  All inquiries, correspondence, written comments, and other communications concerning this matter must refer to Case No. 18-00211-UT.

The present procedural schedule for this case is as follows:

  1. Any person desiring to become a party (“intervenor”) in this case shall file a motion for leave to intervene in conformity with Rules 1.2.2.23(A), (B) NMAC by no later than May 23, 2022.
  2. Resolute Wind and LCEC shall jointly submit a set of stipulated facts no later than May 23, 2022, along with affidavits and/or documentary evidence supporting such facts.  
  3. Initial briefs based on the parties’ stipulated facts will be due by June 21, 2022.   Response briefs shall be due on July 12, 2022.
  4. After the close of this briefing, the hearing examiner will determine if the issues presented can be resolved.  To the extent that the hearing examiner finds that any fact issues preclude resolution of the parties’ dispute through the stipulated facts, the hearing examiner may terminate phase I of these proceedings and move to phase II. 
  5. Phase II will involve submission of prefiled testimony, other evidence, and a public hearing in which parties will have an opportunity for cross-examination of witnesses.   The hearing examiner will set further procedural dates for phase II after the conclusion of the phase I briefing.
  6. Any persons or organizations interested in these proceedings should contact Ms. Ana Kippenbrock, paralegal for the hearing-examiners division, for confirmation of any and all dates associated with these proceedings.  She may be reached by email at ana.kippenbrock@state.nm.us or by phone at (505) 690-4191.
  7. The procedural dates and requirements stated herein are subject to further order of the hearing examiner or Commission.
  8. The Commission’s rules of procedure, 1.2.2 NMAC, shall apply except as modified by order of the hearing examiner or Commission.  The rules of procedure are available online at the Commission’s website at https://www.nm-prc.org/wp-content/uploads/2021/06/1.2.2-NMAC.pdf and at the official site of the New Mexico Administrative Code which is accessible at https://www.srca.nm.gov/nmac-home/.
  9. Interested persons may submit written or oral comments without becoming an intervenor.  Comments shall not be considered as evidence in this case.  Written comments, which shall reference Case No. 18-00211-UT, must be sent to PRC.Records@state.nm.us and copied to ana.kippenbrock@state.nm.us.
  10. Interested persons may examine Resolute Wind’s petition and other documents in the public record for this case on the Commission’s website at https://edocket.nmprc.state.nm.us, and once there, by entering case number 18-00211-UT.
  11. Anyone filing pleadings, testimony, written comments, and other documents must follow the Commission’s filing policy.  Pleadings, testimony, and other documents must be served on all parties of record and the Commission’s utility-division staff in the way or ways specified in the most recent certificate of service issued by the hearing examiner.   
  12. All filings shall be emailed to the hearing examiner on the date filed at christopher.ryan@state.nm.us by no later than 5:00 p.m. MST.  Such filings shall include an MS Word version of any document filed.

Any person with a disability requiring special assistance to participate in this proceeding should contact Ana Kippenbrock by email at ana.kippenbrock@state.nm.us or by phone at (505) 690-4191.

Issued at Santa Fe, New Mexico on April 14, 2022.

NEW MEXICO PUBLIC REGULATION COMMISSION

Text

Description automatically generated with low confidence

 

 

                                                __________________________________

                                                [electronically signed]

 

                                                Christopher P. Ryan

                                                Hearing Examiner

BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF THE FORMAL COMPLAINT  )

OF RESOLUTE WIND 1 AGAINST LEA COUNTY    )                     Case No. 18-00211-UT                                                                                  ELECTRIC COOPERATIVE                                           )

ORDER ISSUING FINAL APPROVED NOTICE OF PROCEEDING

This matter is before Christopher P. Ryan, hearing examiner for the New Mexico Public Regulation Commission, on Resolute Wind 1’s filing of a proposed form of notice. He finds and concludes as follows.

The procedural order issued on March 29, 2022, directed Resolute Wind to file a proposed form of notice by April 11, 2022. Resolute Wind filed it a day late. The other persons and parties on the service list were provided a day to review and offer any amendments to the proposed form of notice. The late filing of the proposed notice could not have interfered with the ability of others to comment. No suggestions for amendments or any other comments about the proposed notice were received.

The hearing examiner has amended the proposed form of notice in some places. Those amendments do not impact the substance of the proposed form of notice.

IT IS ORDERED:

Resolute Wind 1 will see that the approved notice attached here as Exhibit 1 is circulated in the manner and by the time specified in the procedural order. Resolute Wind 1 is directed here also to ensure that the notice is provided by e-mail to Western Farmers Electric Cooperative and LCEC. This was not specified in the procedural order as LCEC is the respondent and WFEC is already on the service list. For purposes of completeness and thoroughness and because the Commission required it, Resolute Wind 1 must include LCEC and WFEC as recipients on the e-mail it will generate for all rural electric cooperatives in the state.

 

Lea County Electric Cooperative will ensure that the approved notice attached here is posted on LCEC’s website in the manner and by the time specified in the procedural order.

The parties will comply with all other directives in the procedural order as relates to the notice.

For the convenience of the parties, the hearing examiner will circulate to the service list an MS Word version of Exhibit 1 as this is the format normally required for posting of documents in newspapers and other places. The circulated MS Word version of the notice will be identical to Exhibit 1 below but will not include any headers, footers, or other formatting that would complicate circulation and publication.

Issued at Santa Fe, New Mexico on April 14, 2022.

NEW MEXICO PUBLIC REGULATION COMMISSION

 
 

 

 

 

[electronically signed]

Christopher P. Ryan

Hearing Examiner

 

 

2

Case No. 18-00211-UT

Order Issuing Final Approved Notice of Proceeding

 

BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

 

 

IN THE MATTER OF THE FORMAL COMPLAINT         )

OF RESOLUTE WIND 1 AGAINST LEA COUNTY           )               Case No. 18-00211-UT

 ELECTRIC COOPERATIVE                                                   )

NOTICE OF PROCEEDING

NOTICE is hereby given by the New Mexico Public Regulation Commission (“Commission” or NMPRC) of the following matter.

On July 11, 2018, Resolute Wind 1 LLC (“Resolute Wind” or “Resolute”) filed a petition requesting that the Commission declare that the Lea County Electric Cooperative (LCEC) has a legally enforceable obligation under the federal Public Utilities Regulatory Policies Act of 1978 (PURPA) to purchase the entire output of Resolute’s single-turbine wind project located in Hobbs, New Mexico, and to establish the energy and capacity rates to be paid by LCEC for such purchases, to be based on “avoided cost,” as this is defined in PURPA and the Commission’s rules. The Commission determined that Resolute’s petition should be heard under the procedures for formal complaints.

On October 3, 2018, the Commission dismissed Resolute’s complaint. Resolute appealed the dismissal to the New Mexico Supreme Court. The Court issued an opinion on February 9, 2022, in which it concluded that the Commission acted unlawfully in dismissing Resolute’s complaint. Upon remand from the Supreme Court, the Commission assigned this matter to a hearing examiner for a full evidentiary hearing.

Resolute Wind is a Texas limited liability company (LLC), which is registered as a foreign LLC in New Mexico. In its original petition, Resolute states that (1) it has a purchase agreement for a two-megawatt (2 MW) wind turbine located in Gaines County, Texas, within 400 feet of the border with Lea County, New Mexico, that was abandoned by its former owner; (2) it holds the

 

rights to the land lease for premises on which the turbine is located through an affiliate; and, (3) it is a “qualifying facility” (QF) under PURPA and enabling regulations at 18 C.F.R. Part 292.

Respondent LCEC is a rural electric cooperative which is under the regulatory jurisdiction of the NMPRC. Resolute states that it attempted to engage LCEC in negotiations leading to a power purchase agreement (PPA) for the output of its turbine. LCEC eventually directed Resolute to attempt to negotiate the PPA with Western Farmers Electric Cooperative (WFEC), which LCEC asserts is LCEC’s wholesale supplier.

On May 1, 2018, WFEC told Resolute it would not agree to Resolute’ s terms, but that “as we are obligated by PURPA, WFEC stands ready to fulfill our PURPA obligations and purchase energy from your facility at avoided cost.”

The parties requested that these proceedings move forward in two phases in order to minimize cost and achieve efficiency. That request was granted.

In phase I, matters which present as predominantly legal issues will be decided. These issues include (a) Can LCEC transfer its PURPA purchase obligation to WFEC; (b) has a “Legally Enforceable Obligation (LEO)” under PURPA been created; (c) if there is a LEO, is the avoided cost rate based on WFEC’s avoided costs or LCEC’s (or are they the same); (d) is Resolute Wind entitled to a long-term avoided cost energy rate?; and (e) is Resolute Wind entitled to a long-term, avoided-cost, capacity rate? Resolute Wind and LCEC have informed the hearing examiner that they believe they will be able to stipulate to most of or all the underlying facts that relate to these legal questions.

In phase II, the Commission will receive evidence on any facts that are determined relevant to establishing the avoided cost rate(s) or on any matters addressed in phase I that require factual development. Phase II will involve a public hearing. The scope of that hearing will become clear at the completion of phase I. Any person interested in participating in the hearing or in receiving notice of the date of the hearing should intervene immediately as further notice of this proceeding will not be required to avoid imposing further costs on the parties.

Further information regarding this case can be obtained by contacting the Commission at the e-mail address and telephone number provided below. Additional details regarding the procedural requirements for this proceeding are set forth in the procedural order issued by the hearing examiner on March 29, 2022, as modified by an errata issued March 30, 2022. All inquiries, correspondence, written comments, and other communications concerning this matter must refer to Case No. 18-00211-UT.

The present procedural schedule for this case is as follows:

  1. Any person desiring to become a party (“intervenor”) in this case shall file a motion for leave to intervene in conformity with Rules 1.2.2.23(A), (B) NMAC by no later than May 23, 2022.
  2. Resolute Wind and LCEC shall jointly submit a set of stipulated facts no later than May 23, 2022, along with affidavits and/or documentary evidence supporting such facts.
  3. Initial briefs based on the parties’ stipulated facts will be due by June 21, 2022.

Response briefs shall be due on July 12, 2022.

  1. After the close of this briefing, the hearing examiner will determine if the issues presented can be resolved. To the extent that the hearing examiner finds that any fact issues preclude resolution of the parties’ dispute through the stipulated facts, the hearing examiner may terminate phase I of these proceedings and move to phase II.
  2. Phase II will involve submission of prefiled testimony, other evidence, and a public hearing in which parties will have an opportunity for cross-examination of witnesses. The hearing examiner will set further procedural dates for phase II after the conclusion of the phase I briefing.
  3. Any persons or organizations interested in these proceedings should contact Ms. Ana Kippenbrock, paralegal for the hearing-examiners division, for confirmation of any and all dates associated with these proceedings. She may be reached by email at ana.kippenbrock@state.nm.us or by phone at (505) 690-4191.
  4. The procedural dates and requirements stated herein are subject to further order of the hearing examiner or Commission.
  5. The Commission’s rules of procedure, 1.2.2 NMAC, shall apply except as modified by order of the hearing examiner or Commission. The rules of procedure are available online at the Commission’s website at https://www.nm-prc.org/wp- content/uploads/2021/06/1.2.2-NMAC.pdf and at the official site of the New Mexico Administrative Code which is accessible at https://www.srca.nm.gov/nmac-home/.
  6. Interested persons may submit written or oral comments without becoming an intervenor. Comments shall not be considered as evidence in this case. Written comments, which shall reference Case No. 18-00211-UT, must be sent to PRC.Records@state.nm.us and copied to ana.kippenbrock@state.nm.us.
  7. Interested persons may examine Resolute Wind’s petition and other documents in the public record for this case on the Commission’s website at https://edocket.nmprc.state.nm.us, and once there, by entering case number 18-

00211-UT.

11. Anyone filing pleadings, testimony, written comments, and other documents must follow the Commission’s filing policy. Pleadings, testimony, and other documents must be served on all parties of record and the Commission’s utility-division staff in the way or ways specified in the most recent certificate of service issued by the hearing examiner.

12. All filings shall be emailed to the hearing examiner on the date filed at christopher.ryan@state.nm.us by no later than 5:00 p.m. MST. Such filings shall include an MS Word version of any document filed.

Any person with a disability requiring special assistance to participate in this proceeding should contact Ana Kippenbrock by email at ana.kippenbrock@state.nm.us or by phone at (505) 690-4191.

Issued at Santa Fe, New Mexico on April 14, 2022.

NEW MEXICO PUBLIC REGULATION COMMISSION

 
 

 

 

 

 

[electronically signed]

Christopher P. Ryan

Hearing Examiner

 

BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF THE FORMAL COMPLAINT         )

OF RESOLUTE WIND 1 AGAINST LEA COUNTY            )                       Case No. 18-00211-UT

 ELECTRIC COOPERATIVE                                                   )

 

CERTIFICATE OF SERVICE

 

I certify that on this date I served upon the parties listed below, via email only, a true and correct copy of the document above.

Bobby Ferris

bferris@lcecnet.com

Michael Newell

mnewell@newelllawnm.com

Morgan Banks

mbanks@newelllawnm.com

Jamison Barkley

jamison@jamisonbarkley.com

Jason Marks

lawoffice@jasonmarks.com

Daniel A. Najjar

dnajjar@virtuelaw.com

Carla R. Najjar

csnajjar@virtuelaw.com

Matt Caves

matt.caves@wfec.com

Rick Gilliam

rick@votesolar.org

Robin Cooley

rcooley@earthjustice.org

Cara Lynch

lynch.cara.nm@gmail.com

Sara Gersen

sgersen@earthjustice.org

David Bender

dbender@earthjustice.org

Milo Chavez

milo.chavez@state.nm.us

Judith Amer

judith.amer@state.nm.us

Bradford Borman

bradford.borman@state.nm.us

Joan Ellis

Joan.Ellis@state.nm.us

Ryan Friedman

ryan.friedman@state.nm.us

Ana Kippenbrock

ana.kippenbrock@state.nm.us

Christopher Ryan

christopher.ryan@state.nm.us

 

Issued at Santa Fe, New Mexico on April 14, 2022.

NEW MEXICO PUBLIC REGULATION COMMISSION

 
 

 

 

 

 

                                               [electronically signed]

 

Christopher P. Ryan

Hearing Examiner