20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Boulder Solar Power, LLC ) Docket No. ER16-_____-000 APPLICATION FOR MARKET-BASED RATE AUTHORIZATION, REQUEST FOR DETERMINATION OF CATEGORY 1 SELLER STATUS, REQUEST FOR WAIVERS AND BLANKET AUTHORIZATIONS, AND REQUEST FOR WAIVER OF PRIOR NOTICE REQUIREMENT Pursuant to Section 205 of the Federal Power Act (“FPA”),1 Section 35.12 of the regulations of the Federal Energy Regulatory Commission (“FERC” or the “Commission”),2 Rules 204 and 205 of the Commission’s Rules of Practice and Procedure,3 and FERC Order Nos. 697, et al.4 and Order No. 816,5 Boulder Solar Power, LLC (“Applicant”) hereby requests that the Commission: (1) accept Applicant’s proposed baseline market-based rate tariff (“MBR Tariff”) for filing; (2) authorize Applicant to sell electric energy, capacity, and certain ancillary services at market-based rates; (3) designate Applicant as a Category 1 Seller in all regions; and (4) grant Applicant such waivers and blanket authorizations as the Commission has granted to other sellers with market-based rate authorization. Applicant requests that the Commission waive its 60-day prior notice requirement6 to allow Applicant’s MBR Tariff to become effective as of July 1, 2016. In support of this Application, Applicant states as follows: 1 16 U.S.C. § 824d (2012). 2 18 C.F.R. § 35.12 (2016). 3 Id. §§ 385.204 and 385.205. 4 Mkt.-Based Rates for Wholesale Sales of Elec. Energy, Capacity & Ancillary Servs. by Pub. Utils., Order No. 697, FERC Stats. & Regs. ¶ 31,252, clarified, 121 FERC ¶ 61,260 (2007), order on reh’g, Order No. 697- A, FERC Stats. & Regs. ¶ 31,268, clarified, 124 FERC ¶ 61,055, order on reh’g, Order No. 697-B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh’g, Order No. 697-C, FERC Stats. & Regs. ¶ 31,291 (2009), order on reh’g, Order No. 697-D, FERC Stats. & Regs. ¶ 31,305 (2010), aff’d sub nom. Mont. Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011), cert. denied sub nom. Pub. Citizen, Inc. v. FERC, 133 S. Ct. 26 (2012). 5 Refinements to Policies & Procedures for Mkt.-Based Rates for Wholesale Sales of Elec. Energy, Capacity & Ancillary Servs. by Pub. Utils., Order No. 816, FERC Stats. & Regs. ¶ 31,374 (2015), order on reh’g and clarification, Order No. 816-A, 155 FERC ¶ 61,188 (2016) (to become effective July 25, 2016). 6 18 C.F.R. § 35.3(a)(1). 20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM I. CORRESPONDENCE AND COMMUNICATIONS Applicant requests that the Commission direct all correspondence and communications related to this Application to the following persons and add each person to its official service list for this proceeding:7 Lisa Bodensteiner George D. (Chip) Cannon, Jr. Executive Vice President and General Counsel Scott D. Johnson SunPower Corporation Akin Gump Strauss Hauer & Feld LLP 77 Rio Robles 1333 New Hampshire Avenue, N.W. San Jose, CA 95134 Washington, D.C. 20036 Tel: (408) 240-4235 Tel: (202) 887-4000 [email protected] Fax: (202) 887-4288 [email protected] Jack Semrani [email protected] Senior Counsel/Regulatory & Transactions SunPower Corporation 2900 Esperanza Crossing Austin, TX 78758 Tel: (512) 953-4471 [email protected] II. DOCUMENTS SUBMITTED WITH THIS APPLICATION Applicant submits the following documents with this Application: • Applicant’s proposed MBR Tariff in RTF format with metadata attached and a PDF copy of the same for publication in eLibrary (Attachment A); • Applicant’s asset appendix in Order No. 816 format (Attachment B); and • An organizational chart illustrating the upstream ownership of Applicant (Attachment C). III. DESCRIPTION OF APPLICANT AND ITS AFFILIATES The following is a description of Applicant and its electric generation facility and upstream owners and affiliates.8 7 Applicant requests that the Commission waive Rule 203(b)(3) of its Rules of Practice and Procedure, 18 C.F.R. § 385.203(b)(3), to the extent necessary to allow each person listed to be included on the official service list for this proceeding. - 2 - 20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM Applicant is a Delaware limited liability company formed for the purpose of developing, constructing, owning, and operating the Boulder Solar I Project (a/k/a Boulder Solar I Nevada) (the “Project”), an approximately 100 MW (nameplate) photovoltaic electric power generating facility to be located in Boulder City, Clark County, Nevada, and to engage in all other lawful businesses activities consistent with exempt wholesale generator (“EWG”) status. Applicant’s principal place of business is 77 Rio Robles, San Jose, California, 95134. Applicant is not currently engaged in any business activities other than those associated with the development, construction, ownership, and future operation of the Project. Applicant has self-certified its status as an EWG.9 The Project is currently expected to begin generating test power in August 2016 and to commence commercial operation in November 2016. The Project will include interconnecting transmission facilities necessary to connect the generating facility to the Nevada Power 8 The term “affiliate” as used in this Application includes certain entities that Applicant is conservatively assuming are affiliates of Applicant for purposes of this Application. These entities, which own and operate generating facilities in the California Independent System Operator Corporation (“CAISO”) balancing authority area (“BAA”) market, are Blackwell Solar, LLC (“Blackwell”) and Lost Hills Solar, LLC (“Lost Hills”). Blackwell and Lost Hills arguably are not affiliates of Applicant under 18 C.F.R. § 35.36(a)(9) because their only relationship to Applicant is through indirect, passive, non-controlling interests in Blackwell and Lost Hills owned by SunPower Corporation (“SunPower”) through 8point3 Energy Partners LP (“8point3 Partners”), an entity formed to hold indirect interests in certain electric generating facilities developed by subsidiaries of SunPower and First Solar, Inc. See 8point3 Energy Partners LP, 151 FERC ¶ 62,162 (2015) (“Yieldco Formation Order”). 8point3 Partners, as the result of a transaction approved by the Commission in the Yieldco Formation Order, indirectly owns non- controlling, passive membership interests in Blackwell and Lost Hills. Applicant considers 8point3 Partners’ indirect interests in Blackwell and Lost Hills to be passive because those interests are consistent with the interests the Commission determined to be passive in AES Creative Res., L.P., 129 FERC ¶ 61,239 (2009). Accordingly, Blackwell and Lost Hills should not be affiliates of Applicant under 18 C.F.R. § 35.36(a)(9) and should not be subject to consideration in the Commission’s market power analysis in connection with this Application. See Order No. 816 at P 284 (clarifying that “sellers should not include in their asset appendices entities and facilities for which they have claimed, and demonstrated to the Commission, that the only relationship is through passive, non- controlling interests consistent with AES Creative (i.e., where the seller has a strictly passive ownership interest in another entity, or another entity has a strictly passive ownership interest in the seller”). However, because Blackwell and Lost Hills have not yet, to Applicant’s knowledge, demonstrated to the Commission on their own behalf that 8point3 Partners’ indirect interests in them are, in fact, consistent with the interests the Commission determined to be passive in AES Creative, Applicant is conservatively treating Blackwell and Lost Hills as affiliates for purposes of this Application out of an abundance of caution. 9 Boulder Solar Power, LLC, Notice of Self-Certification of Exempt Wholesale Generator Status, Docket No. EG16-83-000 (filed Apr. 7, 2016). - 3 - 20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM Company (“NEVP”) d/b/a NV Energy (“NVE”) transmission system to permit Applicant to make wholesale sales of electricity from the Project. Applicant will sell all of the net output of the Project to NVE under a 20-year power purchase agreement (“PPA”) that expires in 2037. Applicant is an indirect, wholly-owned subsidiary of SunPower, a Delaware corporation whose shares are publicly traded on the NASDAQ. SunPower is a vertically-integrated solar products and services company that designs, manufactures, and delivers high-efficiency and high-reliability solar photovoltaic panels and electricity generating systems to residential, business, government, and utility customers. SunPower is headquartered in San Jose, California, and has offices in North America, Europe, Australia, Africa, and Asia. As of the date of this Application, Total Energies Nouvelles Activités USA, SAS (f/k/a Total Gas & Power USA, SAS), which is a wholly-owned subsidiary of Total S.A. (“Total”),10 owns approximately 60% of the issued and outstanding shares of SunPower’s common stock. No other person directly or indirectly owns, controls, or holds, with power to vote, 10% or more of SunPower’s outstanding voting securities. An organizational chart illustrating Applicant’s upstream ownership is provided in Attachment C. Pursuant to a Shared Facilities Agreement to be filed with the Commission, Applicant will share with two affiliates, Boulder Solar II, LLC (“Boulder II”) and Boulder Solar III, LLC (“Boulder III,” and together with Boulder II, the “Co-Tenants”),11 certain common premises and 10 Total is a global, integrated energy producer and provider, a leading international oil and gas company, and, through its interest in SunPower, the world’s second-ranked solar energy operator. Total has approximately 100,000 employees and operates in more than 130 countries. See, e.g., Press Release, SunPower, Colbún Awards 15-Year Contract to Total and SunPower (May 26, 2016), http://newsroom.sunpower.com/2016-05-26- Colb-n-Awards-15-Year-Contract-to-Total-and-SunPower. 11 Co-Tenants are developing and will construct, own, and operate two photovoltaic electric power generating facilities, comprising approximately 100 MW (net) in the aggregate, and related interconnection facilities to be located in Clark County, Nevada.