The Vermont Public Service Board rejected yesterday the application of David Blittersdorf of AllEarth Renewables (and related NRG companies) to develop in Hinesburg what would be one of the state's largest solar energy facilities. The board concluded that together with an adjacent facility of the essentially the same size, also owned and operated by companies Blittersdorf is affiliated with, that the two would exceed the statutory limits for net metering. The two solar arrays are rated for 143.6 kW and 147.6 kW. The net metering limit is 250 kilowatts.
Blittersdorf is a long-time advocate of renewable energy NRG systems in Hinesburg was an early leader in wind energy technology. AllEarth is headquartered in Williston, which develops and builds both wind turbines and solar products. It employs 23.
The PSB ruling does not affect Blittersdorfs solar development in South Burlington. That $12 million project would be larger and able to power about 500 homes.
Net metering refers to renewable energy generating facilities that sell their power directly back into the grid, in this case to Green Mountain Power. Blittersdorf would have to set up a parallel connection grid for the second facility to meet the board's standards, according to the PSB order filed October 21. Blittersdorf had argued that this was an unnecessary expense.
The board wrote: "We conclude that because the net metering application for the proposed project exceeds the statutory capacity limit, it does not qualify for net metering and is, accordingly, denied."
The PSB Order is below (the entire decision is attached):
BOARD DISCUSSION
Summary
On September 15, 2010, the Applicant filed comments in response to the Hearing
Officer's Proposal for Decision ("PFD"). The comments urge the Board to reject the
recommendation of the Hearing Officer in the PFD and approve the application for a CPG (certificate of public good).
On September 16, 2010, the Department filed comments in support of the Hearing
Officer’s recommendation in the PFD.
After considering the written comments, and based on our review of the evidence, we
accept the recommendation of the Hearing Officer in the PFD and deny the Applicant's request
for a CPG for the net metering project, pursuant to 30 V.S.A §§ 219a and 248.
Discussion
The Applicant argues that it would be "arbitrary and capricious" for the Board to accept
the Hearing Officers' recommendation "because that recommendation has no basis in the
governing statute and Board rules."7 The Applicant contends that the Board should be "mindful
that the Legislature has recently directed the Board to expand the scope of the net metering
program" pursuant to 30 V. S.A. 219b. The Applicant acknowledges that the proposed project
will be constructed adjacent to an existing net metering system on the Applicant's property.
However, the Applicant asserts that the Board should consider the proposed project as separate
from the existing facility because the two facilities "will have separate meters and accounts for
group net metering, and the group members are different."8 The Applicant argues that neither the
statutes nor Board Rules prohibit separate facilities from being sited on the same property or
require that group net metered projects with group members in common should be viewed
collectively with regard to capacity limits. The Applicant also contends that there is no reason to
believe that "the proposed project might raise an issue under one or more of the conditionally
waived § 248 criteria due to its proximity to the existing facility." Finally, the Applicant asserts
that the Board "has no statutory authority" to apply the definition of what constitutes a single
facility with regard to SPEED projects, under 30 V.S.A. § 8002(12), to a net metered facility
7. Applicant's comments on the PFD at 1.
8. Applicant's comments at 2-3
CPG #NM-991 Page 8
"where it would serve only to squelch the development of net metering systems for no good
reason and contrary to legislative intent."9
The Department agrees with the Hearing Officer's recommendation to deny the CPG
application. The Department argues that the "decision is well reasoned and complies with the
law and Board Rules."10 The Department contends that while the Legislature has expanded the
scope of the net metering program over time there remain "parameters in place as to what kind of
systems will qualify as a net metered system." The proposed facility, the Department contends,
"will share infrastructure, connection to the grid, property, ownership and customers with another
project on the same tract of land." Because the combined total of the two facilities exceeds the
statutory capacity limit, the Department contends, there is no need to "look to a public policy
rationale, the Legislature has provided the rule and it should be followed." Finally, the
Department states:
To allow serial projects by one owner, sharing common infrastructure, connection
to the grid, customers and land, to exceed the statutory limit would be twisting the
plain meaning of the law and make the law as it stands today totally meaningless.
We agree with the Hearing Officer and the Department that the proposed facility is
properly viewed as an expansion of the existing facility and not as a separate net metering
project. The proposed project does not qualify for net metering for the fundamental reason that it
would exceed the 250 kW size limitation established in the net metering statute. As the
Department correctly observes, to allow multiple net metering projects on the same premises
with common infrastructure and a common interconnection would negate the statutory cap on the
size of net metering projects. To accept the Applicant's reasoning would allow any net metering
customer to construct a net metering system ‘ whether a group or individual system11 ‘
9. Applicant's comments at 4.
10. Department comments on the PFD at 1.
11. The Applicant's reliance on the differences in membership between the proposed and the preexisting
net metering groups is unavailing. The statutory definition of "net metering system" is the same for individual
and group systems, and includes the requirement that the system "is located on the customer's premises."
30 V.S.A. § 219a(a)(3)(D). Here, the applications for both the existing and the new projects were submitted
by the same Applicant, and the new and the preexisting projects would both be located, adjacently, on the
Applicant's premises. Furthermore, it is not unusual for the output of electric generation projects to be
divided among different purchasers (for example, as with the McNeil generation facility in Burlington). In
our review of generation facilities under 30 V.S.A. § 248, allocation of output of a generation facility among a
number of purchasers would not result in a segmented review of the facility. Thus, the differences in
membership between the two net metering groups involved here are not controlling for purposes of
(continued...)
CPG #NM-991 Page 9
unconstrained by the statutory size limitation; the customer could simply claim that the system is a
number of separate systems notwithstanding common infrastructure and interconnection facilities.
Allowing such piecemeal development of a net metering system greater than 250 kW would violate
the clear statutory limitation on the size of net metering systems.
We also disagree with the Applicant's contention that denying this application will somehow
"squelch" renewable energy development contrary to legislative intent. The Board has simplified the
application process for net metered generation projects pursuant to § 219a(c). The Board has also
waived many of the § 248 criteria that would normally apply to generation projects for net metered
generation facilities. The simplified review and waiver of criteria for these projects is, in large part,
predicated upon the relatively small size and commensurately smaller impacts of net metered
projects which are subject to a statutory capacity limit set by the Legislature. Allowing serial
projects that in aggregate exceed the statutory 250 kW limit to be considered as separate facilities
would be contrary to legislative intent of § 219a. The Applicant correctly notes that no party has
shown that the project raises an issue under § 248. However, our decision is not based on the
potential adverse impacts of the project. Our decision to deny the net metering application is based
on the fact that the expanded net metering system exceeds the statutory capacity limit applicable to
net metering systems and is, therefore, not eligible to take advantage of this simplified review
process. We conclude, along with the Hearing Officer, that projects that exceed the statutory
capacity limit for net metering should be reviewed under the requirements applicable to those
projects. If the Applicant believes that this result hinders the development of renewable energy
facilities in Vermont, the proper avenue for relief is to seek legislative amendment to the statutory
limitation.
As for the Applicant's contention that the Hearing Officer has inappropriately applied to this
net metering project a definition from the SPEED statute, the Applicant misreads the PFD. The PFD
explicitly acknowledges that the SPEED statute does not directly apply, but notes that the
recommended decision is consistent with the statutory definitions contained in § 8002(12) that
govern essentially the same types of renewable energy facilities as those encompassed within net
metering projects under § 219a(a)(3). Consistency between statutory provisions that address similar
regulatory programs is a desirable and not inappropriate outcome, and thus we see no error by the
Hearing Officer.
11. (...continued)
determining whether the proposed project is a separate net metering system.
CPG #NM-991 Page 10
Finally, contrary to the Applicant's claim, we have in fact implemented the legislative
directive of 30 V.S.A. § 219b. In 2007, pursuant to § 219b, the Board revised Rule 5.100 to expand
the scope of the net metering program. The Rule was subsequently amended 12 in 2009 to further
expand the scope of the program consistent with statutory revisions. While Board Rule 5.100 has
been revised to expand the scope of the net metering program, it has not been modified (nor could it
have been) to allow net metering projects that exceed the statutory 250 kW limitation.
Based on all of the above, we conclude that because the net metering application for the
proposed project exceeds the statutory capacity limit, it does not qualify for net metering and is,
accordingly, denied.
V. ORDER
IT IS HEREBY ORDERED, ADJUDGED AND DECREED by the Public Service Board of the State
of Vermont that:
1. The Findings, Conclusion and recommendation of the Hearing Officer are adopted.
2. The net metering application submitted by David Blittersdorf, on May 6, 2010, is denied.
12.
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