The state is formally asking the Public Utility Commission to open an investigation into Otter Creek Solar over allegations that site-clearing work for a solar project is in violation of the company’s permit.
Otter Creek Solar 1 and Otter Creek Solar 2 are two solar arrays being built by Otter Creek Solar LLC off Cold River Road. The projects were awarded a “certificate of public good” by the Public Utility Commission in February 2018. In January, Vermonters for a Clean Environment, an environmental watchdog group, filed a complaint with the Public Utility Commission accusing Otter Creek Solar of violating the certificate by selling wood from the site as firewood, burning wood on site and using Cold River Road to access the site instead of Windcrest Road, as it said it would do.
The Public Utility Commission ordered the Department of Public Service to investigate and file the results.
Daniel C. Burke, special counsel for the Department of Public Service, said in an interview Wednesday that the department conducted said investigation over the past few months and determined that the issues around wood should be addressed by the Agency of Natural Resources, not the Public Utility Commission.
The access road issue is, however, something the Public Utility Commission should look into, he said.
“The Department has concluded that there is good cause for the Commission to open an investigation and take evidence on whether Otter Creek violated its CPG by accessing the project location from Cold River Road for clearing, and if so, to impose an appropriate penalty pursuant to 30 V.S.A. §§ 30(a) and 247. The Department, accordingly, respectfully moves for the Commission to open such investigation,” reads part of a filing Burke made Wednesday. The filing also asks the commission, “... to require that Otter Creek file an affidavit under oath that it is in compliance with the terms and conditions of the CPG, and if warranted, to show cause for why it should not be penalized for acting in violation of its sworn testimony, and for doing so without first seeking either a CPG amendment or a non-substantial change determination from the Commission.”
Burke said the word “investigation” is a term of art in this circumstance. The Department of Public Service and the Public Utility Commission are two separate entities. The commission, he said, has authority to grant certificates of public good and issue penalties, whereas the department, outside limited ability to impose small fines, does not. He said a rough analogy would be that the Department of Public Service functions as a prosecutor, while the Public Utility Commission is akin to a judge in a courtroom proceeding.
If the Public Utility Commission chooses to open an “investigation,” Burke said, it would likely mean asking the parties involved to file affidavits and exhibits of evidence, and possibly take testimony.
Burke said the department opted not to impose a fine here on its own, as it thinks the overall remedy will require a change to Otter Creek Solar’s certificate of public good, which the department doesn’t have the authority to order.
Filed along with Burke’s motion was a letter from Thomas Melone, president and senior counsel for Allco Renewable Energy Limited, the parent company for Otter Creek Solar. It was sent on Feb. 27 to Megan Ludwig, special counsel for the Department of Public Service, who investigated the complaint.
Melone directed requests for comment on Wednesday to the letter.
In the letter, Melone explains that the solar project’s neighbor is IsoVolta, and that both Otter Creek Solar and IsoVolta believed Windcrest Road to be a public road, even beyond the railroad tracks that cross it.
According to its website, the local IsoVolta plant makes mica paper. The company itself is based in Austria and has facilities in several other countries.
Melone, in his letter, said questions then arose as to who owned Windcrest Road beyond the railroad tracks. There was discussion between the parties, then, according to Melone, IsoVolta stopped communicating with Otter Creek Solar.
“Finally, after ignoring (Otter Creek Solar) communications for an extended period of time, we were told by Isovolta that opponents of our Bennington projects contacted Isovolta and scuttled the final documentation of the access,” Melone wrote in the letter. Of course, such action crosses the free-speech line to the tortious interference line.”
Allco Renewable Energy Limited is behind multiple solar projects in Bennington that have generated controversy and opposition from that community. In the letter, Melone accuses Vermonters for a Clean Environment and its “cohorts” of making misleading and slanderous statements about Allco-backed projects.
Annette Smith, the leader of Vermonters for a Clean Environment, declined to comment on Wednesday.
“We do not believe that access from Cold River Road is a material variation or a substantial change,” Melone writes in the Feb. 27 letter. “Access from Cold River Road does, however, increase costs, and (Otter Creek Solar) may look to those Bennington individuals and their associates for those increased costs as the result of their direct tortious conduct. That said, (Otter Creek Solar) intends to continue to work towards finalizing the access from Windcrest Road, which until the interference from (Vermonters for a Clean Environment’s) Bennington cohorts, (Otter Creek Solar) was led to believe would not be a problem, and incurred costs in reliance thereon.”