A solar developer’s argument that an investigation into its project off Cold River Road isn’t warranted is being met with rebuttal from the Department of Public Service.

On Wednesday, Daniel Burke, special counsel for the Department of Public Service, filed a response to a May 1 objection made by Otter Creek Solar LLC. Otter Creek had objected to the department’s motion that the Public Utility Commission open an investigation into allegations that Otter Creek violated its state permit in how it’s going about clearing the site off Cold River Road ahead of the construction of two solar projects.

Otter Creek Solar LLC is a company owned by Allco Renewable Energy Ltd. The Department of Public Service (DPS) represents the public interest in matters that go before the Public Utility Commission, which regulates public utilities such as solar projects.

The PUC has granted Otter Creek Solar a “certificate of public good” (CPG) for two arrays, Otter Creek 1 and Otter Creek 2, to be built off Cold River Road.

Late last year, Vermonters for a Clean Environment, an environmental watchdog group, filed comments with the PUC accusing Otter Creek Solar of violating the terms of its CPG by using Cold River Road to access the site for clearing purposes. It also accused the company of being in violation because wood was being burned on the site, with some sold as firewood.

After several weeks of investigation, DPS opted to recommend the PUC open its own investigation, since DPS has limited enforcement power, and no authority to alter a CPG.

The department focused on the road access issue, leaving the question of wood burning up to other agencies.

Vermonters for a Clean Environment says that according to the terms of the CPG, work done on the site was to be done from Windcrest Road, while maintenance would come from Cold River Road.

In filings made with the PUC, Thomas Melone, president and senior counsel for Allco Renewable Energy Ltd., says the only activity that’s been happening on the site has been for site clearing, and that the projects’ CPG doesn’t specify which road that sort of work can be done from.

In a letter to the DPS, Melone said that it was once believed the town owned all of Windcrest Road, but further research cast doubt on this. He said his company spoke to IsoVolta, the neighboring businesses that may own part of Windcrest Road, but communications ceased. Melone blamed Vermonters for a Clean Environment for this.

“Otter Creek’s reliance on drawing a distinction between site preparation and construction activities overlooks the primary basis of the Department’s request for an investigation,” reads Burke’s response. He adds that the legal language Melone is citing applies to the PUC’s jurisdiction.

Burke said when the PUC issued the certificate of public good, it did so based on claims and plans made by Otter Creek Solar, and that it was Otter Creek Solar’s obligation to formally adjust those claims before doing anything that ran contrary to them.

“The Department’s primary concern in this matter is not necessarily the scope of the violation, but rather Otter Creek’s failure to correct or revise its testimony or seek a timely determination from the Commission as to whether the altered site access for site preparation and clearing activities necessitated a CPG amendment,” wrote Burke.

“Attempting to parse a nuanced distinction between site preparation and construction activities does not relieve Otter Creek of its obligation to correct testimony that was relevant to the Commission’s determination as to whether the project promotes the public good, especially after a CPG has been issued and the Commission’s jurisdiction over the site is firmly established.”



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