20211130Reply Comments.pdf

Peter J. Richardson
ISB No. 3195
Richardson Adams, PLLC
515 N. 27th Street
P.O. Box 7218
Boise,ldaho 83702
Telephone: [phone] I
Fax: [phone]
peter@richardsonadams. com
Attomeys for the Industrial Customers of Idaho Power
i,;;,ii;ii,! ;ii Ptr 2:36
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF IDAHO POWER
COMPANY'S APPLICATION FOR
APPROVAL OR REJECTION OF AN
ENERGY SALES AGREEMENT WITH
IDAHO POWER COMPANY AND J.R.
SIMPLOT COMPANY FOR THE SALE AND
CASE NO. IPC-E-21-33
PURCHASE OF ELECTRIC ENERGY FROM )THE SIMPLOT-POCATELLO CSPP PROJECT )
COMES NOW, The J. R. Simplot Company, hereinafter refened to as "Simplot" and
pursuant to Order No. 35212 of the Idaho Public Utilities Commission ("Commission"), and
hereby files its Reply Comments in response to the Comments lodged by the Commission's Staff
on November23,2A2l.
The PUC Stafffiled comments generally supportive of approval of the proposed energy
sales agreement (ESA) between Simplot and the ldaho Power Company (Idaho Power)
However, the Staffalso recommended the inclusion of the following paragraph in the ESA,
which would upset the duly negotiated and executed ESA by both ldaho Power and Simplot:
Any modifications to the Facility, including but not limited to the generator or turbine,
that ( I ) increases or decreases the Facility Nameplate Capacity, or (2) changes the
Qualifuing Facility Category, or (3) changes the Primary Energy Source or (4) changes to
the generator fuel and subsequently the Fueled Rate or Non-Fueled Rate, will require a
review of the Agreement terms, conditions and pricing and Idaho Power, at its sole
REPLY COMMENTS OF THE J. R.
SIMPLOT COMPANY
determination, may adjust the pricing or terminate the Agreement. If the Agreement is
terminated because of said modifications, the Seller will be responsible for any
Termination Damages.
Staffoffered no legal or practical justification for its recommendation other than a representation
that such clause has been included in some other PURPA contracts filed by [daho Power. Staff s
argument fails because it rests on no legal or contractual principal and it upsets the arrangement
that has been negotiated and agreed to by the parties.
Staffasserts that that agreement "does not contain any provision to address modifrcations
to the Facility." However, Article 23 of the Agreement contains a provision for approval by both
parties (and subsequent Commission approval) for any modifications to the ESA. In addition,
the ESA at Appendix B contains the following detailed description of the project:
The facility generates elechic energy with the waste heat from an exothermic reaction
that occurs in the production of sulfuric acid in the J.R. Simplot Company's Don Plant
fertilizer production facility. The turbo generator is a General Electric synchronous
generator with a three-phase nameplate rating of 18.87 MVA at 13.2 kV three phase, 60
hertz, driven by steam turbine. The nameplate capacity rating of the generator is 15.9
MW. The waste heat steam captured from the exothermic reaction moves through a 625
PSIG headcr leading to the turbo generator described above. After production of
electricity in the generator, the steam is then used for processes in the fertilizer
production facility in topping cycle cogeneration process. Facility Nameplate Capacity:
15.9 MW Var Capability (Both leading and lagging) Leading is 0.9 Lagging is 0.9
Qualifoing Facility Category (Small Power Production or Cogeneration): Cogeneration
Primary Energy Source (Hydro, Wind, Solar, Biomass, Waste, Geothermal): Waste
Fueled or Non-Fueled Rate (Generator primarily fueled with fossil or non-fossil fuel):
Non-Fueled
Any changes to the project that are contemplated in Staffs proposed language would already be
adequately addressed as a required amendment to Appendix B to the ESA. [n addition, any such
changes would have to be approved by the Commission pursuant to ESA Article 23. Thus,
Staffs recommendation, in addition to unreasonably authorizing the agreementos unilateral
termination by Idaho Power, is unnecessarily redundant as the contact does already address
modifications.
J.R. Simplot Reply Comments
- IPC-E-21-2r
2
Simplot also substantively objects to the inclusion of this proffered clause due to the fact
that it provides ldaho Power with the unilateral ("at its sole determination") right to terminate the
contract and impose termination damages on Simplot. Granting the counterparty to a contract
the unilateral and unfettered right to terminate is contrary to the spirit and intent of the agreement
negotiated between ldatro Power and Simplot. The agreement is already enforceable by its terms
and the consequences for any breach by Simplot (and related remedies for ldaho Power for such
a breach) are already adequately addressed by the contract's terms.
DATED this day of November 2021
Peter J. Richardson
RICHARDSON ADAMS, PLLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 30th day ofNovember 202l,atme and correct copy ofthe
within and foregoing REPLY COMMENTS OF THE J.R. SIMPLOT COMPANY in Docket No.
IPC-E-21-33 was served electronically to:
IDAHO POWER COMPAI\Y
Donovan Walker [e-mail]
dockets@idahopower. com
enereycontracts@ idahopowcr.com
COMMISSION STAFF
Riley Newton ri ley.netwon@puc. idaho. gov
COMMISSION SECRETARY
Jan Noriyuki [e-mail]. gov
sec retary(@ puc. idaho. sov
J.R. Simplot Reply Comments
- IPC-E-2t-21
3
Peter
RICHARDSON ADAMS, PLLC
J.R. Simplot Reply Comments
- trc-E-21-21
4