Commissioners, OPSB representatives discuss status of New Market Solar following setback violation ruling

Three weeks after the Ohio Power Siting Board ruled that New Market Solar violated minimum setback requirements, Highland County commissioners David Daniels, Brad Roades and Terry Britton held a virtual conference with OPSB representatives during their Wednesday, July 10 meeting.

Commissioners primarily spoke with Ohio Power Siting Board executive director Michael Williams. Joining on the Microsoft Teams call from the Ohio Power Siting Board were public information officer Matt Butler, community liaison Juliana Graham-Price, deputy director Jon Pawley and ecological supervisor Grant Zeto. Also on the call were Adam Cummins, Steven Fearnow and Eric Lindner of the Ohio Department of Development.

As previously reported, an administrative hearing was held in November regarding the alleged noncompliance with the two projects (New Market Solar I and New Market II) in Clay and Whiteoak townships that have been partially operational (24 of the 100 megawatts) since March 2022.

The OPSB ruled June 20 that New Market is “in violation of the conditions of the certificate” for their project and in violation of the Ohio Revised Code, which requires ‘No person shall construct, operate, or maintain a major utility facility or economically significant wind farm other than in compliance with the certificate the person has obtained.’”

For violation of the ORC, the opinion says that the OPSB “may order an appropriate remedy.” The opinion says they are requesting “that New Market be directed to come into full compliance with the certificate. According to [OPSB] Staff, this would entail moving or removing panels such that the entirety of the Facility is [set back] at least 100 feet from public roads.”

In response to that ruling, Daniels said that the county was seeking information on “the delays that the project might see as a result of it,” any impact on “their startup date” and whether it will delay “the calendar for final approval and the beginning of the PILOT payments.”

Williams told commissioners that the answers to their questions are mostly unknown, pending a call between New Market Solar and the OPSB scheduled later on July 10 as well as any potential filings by the solar developers.

According to Williams, the OPSB “took a pragmatic approach” in the remedy ordered, that “not every setback encroachment should be treated the same.” The OPSB wrote in their order that they would “adopt a version of” a $4 million proposal by New Market Solar “that requires those panels within 100 feet of Stringtown Road, Edwards Road and W. New Market Road to be brought into compliance, consistent with the established setbacks.” However, OPSB said that “certain panels” — including “those along Hollowtown Road” and those “confirmed by New Market to be within 100 feet of neighboring property lines” will “not be required to be relocated.
 
Williams said the call between the OPSB and the solar developers later on July 10 was intended to address “some specific questions of interpretation as to what the board ordered, and frankly, what the board didn't order.

“That call will probably go a long way in confirming or determining where this litigation goes,” Williams said. “The board's order from June the 20th is subject to a 30-day window for an application for rehearing. If the project feels as though, frankly, you know that they lost some issues that they feel they should have won and they need to continue to litigate those, or they feel some of the board's decisions are impactful to the point where they needed to maintain further litigation, then they’ll file for rehearing.

“The rehearing calendar is pretty open-ended — in fact, it's extremely open-ended — so a rehearing would potentially create another round of briefs, and then ultimately an administrative judge would make a further recommendation to the board and the board would then vote on that.”

Without knowing whether the developers will file for a rehearing — and if so, “how many issues might be subject to rehearing” — Williams said it would be difficult to gauge how that would affect the project timeline.

“I think it's safe to assume we'd be looking at somewhere in the range of three to six months for the board to determine whatever issues are raised and come back in on an issue of rehearing,” Williams said. “Ultimately, the project would have the ability to appeal this matter to the Supreme Court, in which case, we're going to measure that in many months, or potentially years, before the court would give some direction there.”

As previously reported, in addition to the relocation of panels, the OPSB ordered New Market to: install “agricultural-style fencing and planted vegetation”where it “has not” done so already, for the entire facility, while “[confirming] with Staff that such fencing and vegetative screening is appropriate and sufficient to serve as effective screening, particularly for nearby residences;” ensure the fence line for relocated panels is “consistent with the setbacks and shall be at least 100 feet from the roads;” and “update its Road Use and Maintenance Agreement,” or RUMA, for the panel relocations “with the appropriate government entities as necessary.”

“To the extent the project might save $2 [million], $3 [million], $4 million in remediation costs by not moving every panel, that could be incentive for them to drop their arms and otherwise pick up their shovels and start moving these things and get this this project back to full operations,” Williams said. “It’s a long, rambling way of saying we don't know, except to say, I'm encouraged that the project wanted to speak with us informally as to our interpretation of what the board had said.

“Unless and until the project stops wanting to discuss this matter or confirms that they're absolutely going to go through with litigation, I think there's reason for optimism that the case may be finally decided based on what we have here.”

In the event that developers “don’t file for rehearing and they begin the implementation of the board's order,” Williams said the timeline impact would depend on how far along the developers are in their re-engineering process.

“Presumably, they're as anxious to get this thing back to full operations as the county and everybody else is,” Williams said. “We can't necessarily detail what that would look like from a time standpoint, but I would assume the modifications that are described, once fully engineered, could probably be implemented in a period of roughly six months, depending on staffing, availability, etc.

“If they don't file for rehearing and they begin implementing the board's order, we’d be optimistic they could get to full production sometime hopefully in the first quarter of next year.”

Daniels asked if New Market Solar’s “reconfiguration” will have to “shut down the production they’ve got now.

“Even though they may not be considered complete, they're still operational to some level,” Daniels said.

Williams said the answer “is heavily dependent on the engineering phase.

“The test injection phase of a project is really technical and takes, frankly, two to four months,” Williams said. “To the extent they’re at some point going to have to assemble the further buildout of this, and then it's got to interface with what's currently operational — it wouldn't be surprising to see them have to, you know, for lack of a better term, unplug for a period of time.

“We wouldn't expect them to unplug for a period of, you know, three to six months. I think it would just be that test phase, they might have to, frankly, come offline for a period of a couple of months to tweak how they inject the power back into the market. Beyond our control, hard for us to predict, but I would not expect to see them pull the plug on that day after tomorrow and not put power on the grid for several months.”

As previously reported, commissioners voted to issue a Payment in Lieu of Taxes, or PILOT, invoice for the New Market Solar project March 22, 2023. The first half-year payment of $450,000 was due April 20, 2023, according to the invoice. The county was later informed that they would not be able to collect payment until “a certificate of verification” was issued by the state for the project.

Graham-Price also sent an email to commissioners May 23, as listed on the May 29 agenda, with a “PILOT Project Status Update” for 13 projects across the state that “have begun commercial operation or were close to being operational.” The May 23 email lists New Market Solar’s two projects as having begun commercial operations.

Daniels told the state Wednesday he still had “questions toward the certification of the Qualified Energy Project and the beginning of the PILOT, if they're not unplugging.

“If they're not going to shut down, this would appear to be a mistake that they've made, so why shouldn't we continue to go ahead?” Daniels asked. “We know they're going to go for approval, so why wouldn't we go ahead and and begin the period of time when the PILOT’s available to us?

“They can shut down what they want and work what they want, but this is still on them, and they're still producing and putting in [to the grid].”

Williams confirmed that New Market “has been commercially operational on portions of the project up to today.

“I know they've been interfacing with Steve Fearnow and [Departments of] Developments and Tax regarding confirming that and confirming paying PILOT obligations,” Williams said. “Nothing about this litigation or the board’s most recent decision impacts the pursuit of PILOT that is ongoing for the part of project that has been operational.”

Williams concluded that “there's every reason to believe whatever is in motion now will stay in motion” with New Market and said they would keep in touch with commissioners with any updates.

As of this article’s posting, there have been no new filings on the New Market Solar docket since the OPSB issued their order. The docket can be followed at https://dis.puc.state.oh.us/CaseRecord.aspx?CaseNo=20-1288-EL-BGN.

To read more about the OPSB’s ruling, see the story at: https://highlandcountypress.com/news/ohio-power-siting-board-finds-new-….

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