Petition of St J Old Center Solar LLC, 012021 VTPSBD, 20-2481-NMP

Docket Nº20-2481-NMP
Opinion JudgeELIZABETH SCHILLING, ESQ. HEARING OFFICER
Party NamePetition of St J Old Center Solar LLC for a certificate of public good, pursuant to 30 V.S.A.§§ 248 and 8010, authorizing the installation and operation of a 500 kW (AC) group net-metered solar electric generation system in St. Johnsbury, Vermont
AttorneyErin C. Brennan, Esq. Vermont Department of Public Service (for Vermont Department of Public Service) Kevin Brown Langrock Sperry & Wool (for Nancy Cohen) (for Elwood Cohen) *Matt Chapman, General Counsel Vermont Agency of Natural Resources (for Vermont Agency of Natural Resources) Kimberly K. Ha...
Case DateJanuary 20, 2021

Petition of St J Old Center Solar LLC for a certificate of public good, pursuant to 30 V.S.A.§§ 248 and 8010, authorizing the installation and operation of a 500 kW (AC) group net-metered solar electric generation system in St. Johnsbury, Vermont

No. 20-2481-NMP

State of Vermont, Public Service Board

January 20, 2021

Erin C. Brennan, Esq. Vermont Department of Public Service (for Vermont Department of Public Service)

Kevin Brown Langrock Sperry & Wool (for Nancy Cohen) (for Elwood Cohen)

*Matt Chapman, General Counsel Vermont Agency of Natural Resources (for Vermont Agency of Natural Resources)

Kimberly K. Hayden, Esq. Paul Frank + Collins PC (for St J Old Center Solar LLC)

Maxwell I Krieger, Esq. Vermont Division for Historic Preservation (for Division for Historic Preservation)

ORDER LIFTING STAY, AFFIRMING GRANT OF PARTY STATUS, AND REQUESTING CLARIFICATION REGARDING EVIDENTIARY HEARING

ELIZABETH SCHILLING, ESQ. HEARING OFFICER

This case involves an application filed with the Vermont Public Utility Commission ("Commission") by St J Old Center Solar LLC ("Applicant") for a certificate of public good ("CPG"), pursuant to 30 V.S.A. §§ 248 and 8010, for a 500 kW (AC) group net-metered solar electric generation system (the "Project") in St. Johnsbury, Vermont.

In this Order, I lift the stay previously imposed in this proceeding in an order issued on December 8, 2020; affirm the party status of Elwood and Nancy Cohen (the "Cohens"); and request that the Cohens clarify whether they are requesting an evidentiary hearing in this matter.

I.

Procedural History

On December 2, 2020, the Cohens filed a notice of intervention form and an accompanying motion to intervene.

On December 8, 2020, I issued an order granting the Cohens party status and staying the proceeding. In the order, I granted the Cohens, who are adjoining landowners, party status based on their submittal of a notice of intervention form.1 Additionally, I stayed the proceeding because of concerns regarding conditions in the memorandum of understanding ("MOU") between the Applicant and the Vermont Division of Historic Preservation ("DHP").2 The MOU would require the Applicant to complete an archeological investigation of the Project site and to complete any mitigation found necessary by the investigation before construction of the Project. Any required mitigation would be subject to DHP approval. The MOU stated that "[m]itigation may include but is not limited to further site evaluation, data recovery, redesign of one or more proposed Project components, or modification of the buffer zone boundaries or the specific conditions that refer to the same."3 I stayed the proceeding because of my concern that the MOU's provisions could result in adverse findings under 30 V.S.A. § 248(b)(5) or significant changes to the Project which would require Commission review and approval.

On December 10, 2020, the Applicant filed a motion asking the Commission to lift the stay. The Applicant explained that the archeological studies required by the DHP Conditions rarely require a change in the Project footprint. Instead, mitigation typically involves recovery and recording of archeological deposits or minor design changes or modifications of construction methods, requiring at most a minor amendment under the Commission's rules. The Applicant also noted that the Commission has previously issued CPGs containing the same conditions proposed by DHP.

On December 14, 2020, DHP filed a response supporting the Applicant's motion. DHP explained that the DHP Conditions protect against any potential adverse effects of projects on historic sites and are necessary to provide DHP and CPG applicants with the flexibility to adequately review projects despite seasonal constraints on archeological work. DHP also stated that it was not aware of any case where the DHP Conditions resulted in a project being moved, materially altered, or abandoned due to required mitigation.

On December 16, 2020, the Applicant filed a response to the Cohens' motion to intervene requesting that the Cohens' intervention be limited to the orderly development and aesthetics impacts to their property.

On December 22, 2020, the Vermont Department of Public Service filed comments supporting the Applicant's request to lift the stay. The Department did not comment on the Cohen's intervention.

II. Discussion

Stay

Based on the representations from DHP and the Applicant that the MOU will avoid undue adverse effects on archeological resources and is not likely to result in significant changes to the Project after the CPG has issued, I agree that the stay should be lifted.

However, I remain concerned that the language in the MOU could be misinterpreted as allowing modifications to the Project without Commission approval. Such an interpretation would conflict with the Commission's standard CPG condition number 1, which requires advance approval from the Commission for material deviations or substantial changes from the approved plans, as well as the amendment and...

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