RUTLAND TOWN — The company behind the planned-for solar projects off Cold River Road has filed a motion with state regulators that would resolve the projects’ legal matters and see the company paying a $5,000 fine.

The motion was filed in early June with the Public Utility Commission by Michael Melone, of Allco Renewable Energy Limited, the parent company of Otter Creek Solar LLC. It seeks to resolve its pending issues with the Public Utility Commission, including the PUC decisions it has appealed to the Vermont Supreme Court.

In 2018, the PUC approved two certificates of public good for solar projects on the same parcel of land off Cold River Road. One project would have produced 4.99 megawatts, the other was a 2.2 megawatt facility. That winter, Vermonters for a Clean Environment, an environmental watchdog group, raised concerns with the PUC that Otter Creek Solar was in violation of its permit because of how it was accessing the site. That ultimately led to an investigation by the Department of Public Service, which questioned whether the two projects were legally distinct.

In recent weeks, Otter Creek Solar has reconfigured its plans for the site, which called for splitting one of them into two projects, creating Otter Creek 3.

According to Melone’s recent motion, should the PUC accept it, then the standard-offer contract for Otter Creek 2 would be terminated, the standard-offer contract for Otter Creek 1 — which has been renamed the MacKinnon Project — would be extended to Aug. 27, 2021, as would the contract for Otter Creek Solar 3, now called Grey Solar. The MacKinnon project would shrink, and Otter Creek Solar would pay a $5,000 penalty to resolve the matter of it allegedly not seeking the needed permit amendments with regards to site access.

The end result, according to Melone, would be the construction of two 2.2 megawatt facilities with standard offer contracts, both built within the same footprint as the projects the PUC approved in 2018. Melone wrote that should the PUC be agreeable to this, then Otter Creek Solar will file a motion with the Vermont Supreme Court asking for the matters in question to be remanded to the PUC so it can make those determinations.

The DPS responded to the motion on June 25 with a filing by Daniel Burke, special counsel for the department, who stated the DPS doesn’t object to Otter Creek Solar’s proposal, but that some additional legal steps would have to be taken first. The filing was also critical of Otter Creek’s behavior during the process.

“The net result of (Otter Creek Solar’s) proposal is essentially a return to the projects that were determined by the Commission to promote the public good in Dockets 8797 and 8798,” wrote Burke. “This back to the future proposal would resolve the Department’s principle concerns with these projects — (Otter Creek Solar’s) attempt to exploit the standard-offer program to shoehorn an additional 2.2 MW facility onto this project parcel. The Department remains deeply concerned by (Otter Creek Solar’s) attempts to take advantage of non-existent gaps within the standard-offer program to manipulate the regulatory review process for electric generation facilities. However, (Otter Creek Solar’s) proposal wholly eliminates the (Otter Creek 3) project, restores the (Otter Creek 1) facility to the site boundaries originally approved by the Commission, and would resolve (Otter Creek Solar’s) rule violation.”

He wrote that so long as the footprint of the projects aren’t changing, Otter Creek Solar won’t have to file for a new CPG, but parties involved will need the opportunity to comment.

“To be clear, the Department’s decision to not oppose (Otter Creek Solar’s) motion should not in any way be interpreted as a tacit approval of (Otter Creek Solar’s) conduct or litigation tactics in these various proceedings,” wrote Burke, noting a recent PUC order where the PUC itself acknowledged the company had, “pushed the limits of ethical norms and has been borderline sanctionable.”

Burke wrote that DPS is troubled by Otter Creek Solar accusing the PUC of bias during these proceedings.

“The Department is also frustrated that it has had to expend substantial time and resources (during a broader economic crisis) responding to categorically baseless legal requests and arguments from OCS, such as motions to serve discovery on the Commission and its staff,” Burke wrote.

Melone said in an email Wednesday that Otter Creek Solar has not violated any ethical norms or rules.

“I believe the document in which that DPS statement appears is their comments on our proposed resolution to move forward and resolve the various pending issues surrounding the Rutland solar projects so the projects can be built sooner rather than later and displace electricity that is generated by fossil fuels,” he stated. “DPS has also referred to us as the most litigious people they have encountered. While I have no way to verify that, it is unfortunately the sad commentary of our divided times that the amount of litigation that we have suffered is part of the process, at least in Vermont, to reduce fossil fuel use.”

Melone said the COVID-19 pandemic has “shined a spotlight on the ignored human health toll of the fossil fuel generation that Vermont chooses to consume from out-of-state generators, rather than building the necessary solar energy facilities within its borders.”

Burke said in an email Wednesday he was not authorized to comment on this matter.


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