Fortistar Lawsuit Facts

The Board of Ada County Commissioners made another bad and costly decision: they settled a lawsuit with Fortistar Energy (aka Hidden Hollow Energy) by paying the company more than $2.6 million. Fortistar had no legal cause of action or legitimate claim against the county.

Fortistar operates two engines at the Ada County landfill that burn landfill gas and convert it into electricity. That resource is sold to Idaho Power. Ada County receives about 20 percent of the proceeds from the power sales. According to the county’s landfill reports, “In fiscal year 2011, Fortistar Energy paid Ada County $336,647.”

The Ada County landfill, established in 1972, is producing far more gas than is burned in Fortistar’s two engines so the county contracted with Fortistar in 2011 to install two more engines.

Fortistar was prevented from installing those engines because the gas coming from the landfill contained far more Hydrogen Sulfide (H2S) than anticipated.

Previously, in 2010, Ada County contracted with Dynamis Energy, LLC, to design a waste-to-energy facility. The county put out a news release publicizing the project.

In 2012, Fortistar approached the county with their concern that if trash was to be diverted from the landfill, they would not have adequate gas to run four engines for the duration of their 20-year contracts.

Fortistar brought a graph to the county, in which they tried to demonstrate this problem. At that meeting, I observed that their graph contained an error: the starting point they used for the known amount of landfill gas was incorrect. One of the Fortistar representatives present acknowledged the error.

Ada County contracted with CH2M Hill to study the issue and determine the amount of available landfill gas both with and without the Dynamis project in place. According to the attorney representing Ada County against Fortistar, CH2M Hill concluded that even with Dynamis running their project at full capacity, there would still have been enough landfill gas to supply all four of Fortistar’s engines for the duration of the contracts. *

In late 2013, Fortistar filed suit against Ada County, claiming the potential diversion of waste to the Dynamis project prevented the company from obtaining financing for the second set of engines at the landfill.

Yet, according to Fortistar’s own website, “Fortistar’s projects extend from one coast to another in the US and Canada…. Fortistar projects deliver clean energy from 58 projects to 40 communities in 15 states and 2 countries.”

I am not a loan officer, but perhaps if the county did make an error in 2011 with regard to Fortistar, it was signing a contract with a company whose resources were inadequate to install the two additional engines. Or were they?

On July 8, 2010, the “Waste Business Journal News” reported, “Fortistar closes $105 million financing for renewable landfill gas power projects”. On October 15, 2015, “Business Wire” reported, “Fortistar Expands Landfill Gas to Energy Portfolio… Firm Also Closes $150 Million in Financing for its Landfill Gas to Energy Portfolio”.

Again, even Fortistar’s own graph, when corrected for their admitted starting point error, showed there was enough landfill gas to fulfill the county’s contracts with the company even if the Dynamis project had been up and running at full capacity during the entire life of all contracts involved.

I was deposed by Fortistar’s attorney in this lawsuit. One of the county’s attorneys made reference to me as their “star witness.” I do know the facts in this case, and they do not support Fortistar’s claims.

The county just paid out more than $2.6 million to settle a lawsuit they would have won in court.

* I submitted a public records request to Ada County on April 1 for the CH2M Hill landfill gas report and graphs but thus far have only received the county’s automated reply at the time of my request submission. EDIT on 4/10/2022: Due to the ongoing interest surrounding this issue, I have provided a copy of the referenced graph here. The pen marks on the graph itself (which had been brought to the meeting by Fortistar) were made by me, during our meeting with representatives of the company. In that meeting, when I brought the error to their attention, the Fortistar representatives acknowledged their graph was incorrect with regard to the amount of gas already being produced at the county’s landfill. The handwriting on the right-hand side was added later, by a county attorney, who was preparing exhibits to defend the county against Fortistar’s frivolous lawsuit.

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