20051213Reply comments.pdf

Peter J. Richardson
ISB No. 3195
Richardson & O'Leary
515 N. 2ih Street
O. Box 7218
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
peter~ri chardsonando I eary. com
CE "
, 1'). fl. ~
,.
"J
(;! ,
1 0- : J
;iL i:-,
~//,
r':~I ~SiO;,!
Attorneys for Exergy Development Group of Idaho, Inc.
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF)
IDAHO POWER COMPANY FOR
APPROVAL OF A FIRM ENERGY SALES
AGREEMENT FOR THE SALE AND
PURCHASE OF ELECTRIC ENERGY
BETWEEN IDAHO POWER COMPANY AND)
NOTCH BUTTE WIND PARK LLC
CASE NO. IPC-05-
REPLY COMMENTS OF EXERGY
DEVELOPMENT GROUP OF IDAHO
INC.
COMES NOW, Exergy Development Group of Idaho, Inc. ("Exergy ) hereby lodges its
reply comments to the comments filed by Windland Incorporated in the above captioned matter.
Windland raises issues of generic applicability to PURP A contracts relative to penalties
or damage calculations for delay in achieving the first operation date for QF projects. However
such considerations are beyond the scope ofthe instant proceeding. The question before the
Commission is clearly stated in the Notice of Comment/Protest Deadline issued by the
Commission on November 7 2005. In that Notice the Commission identified the two issues that
are presented by Idaho Power s application for approval of the four agreements. The first issue
is whether the projects are, indeed, qualified small power production facilities (QFs) under the
applicable provisions of the Public Utility Regulatory Policy Act of 1978 (PURP A) and whether
the terms and conditions of the agreements comport with the Commission s implementing orders
including Us. Geothermal et al v. Idaho Power and avoided cost Order Nos. 29646, 29839
29851 , 29872 and 29646. The second issue is whether the projects are grandfathered under the
terms of interlocutory Order No. 29839 and Order No. 29872 in Case No. IPC-05-22.
Windland's comments fail to address either question at issue in this docket. Staff of the
PUC, on the other hand, filed comments that do address both of the questions at issue in this
docket. Staff concluded that the projects should be grandfathered pursuant to the terms of Case
No. IPC-05-22. Staff also concluded that the projects are QFs and the contracts comport with
this Commission s precedent and rulings implementing PURP
Windland is asking this Commission to retroactively change its orders implementing
PURP A which would be an unjust and unwarranted denial of Exergy' s due process rights. It is
black letter law in Idaho that when the Commission makes changes in a utility s rates or the
terms and conditions of service, that such changes may only be made on a prospective basis.
Utah Power Light v. Idaho Public Utilities Comm '107 Idaho 47 685 P.2d 276 (1984).
Exergy was, and is, entitled to rely upon the Commission s orders and PURP A in spending the
time and effort to bring this project to a stage at which it is entitled to the published avoided cost
rates, and terms and conditions, set by the Commission.
Exergy respectfully requests this Commission accept Staffs recommendation and
expeditiously approve this agreement. Windland's concerns are not properly before this
Commission in this docket and should not be considered in the Commission s final decision
making process.
REPLY COMMENTS BY EXERGY
Respectfully submitted this 12th day of December, 2005.
Richardson & O'Leary, LLP
By AB.
Peter J. Richardson
Attorneys Exergy Development Group of Idaho, LLC
CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of December I caused the foregoing REPLY COMMENTS
OF EXERGY DEVELOPMENT GROUP OF IDAHO in the above referenced docket to be
mailed, postage prepaid, to the following:
Monica Moen
Bart Kline
Idaho Power Company
PO Box 70
Boise, Idaho 83707-0070
Randy Alphin
Idaho Power Company
PO Box 70
Boise, Idaho 83707-0070
Cw\~
Nina Curtis
Administrative Assistant
Richardson & O'Leary
REPLY COMMENTS BY EXERGY