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February 8, 2024

ORES Executive Director Issues First Denial of Section 94-C Permit Application Following Applicant's Partial Loss of Site Control

On February 6, 2024, the New York State Office of Renewable Energy Siting (ORES) Executive Director issued a decision dismissing without prejudice Hecate Energy Columbia County 1 LLC’s (Hecate) application for a Section 94-c siting permit for its Shepherd’s Run Solar project. This decision marks the first 94-c siting permit application to be dismissed since ORES’s creation in 2020.

Hecate filed its application with ORES in March 2022 for the 60 megawatt (MW) solar project to be located in the Town of Copake, Columbia County, New York, and its application was determined complete in August of 2023. Subsequently, ORES issued a draft siting permit for the project in October 2023. 

The Town of Copake filed a motion to dismiss the application on January 2, 2024, asserting that, on that same day, almost 60 acres of the project site and roughly 20 percent of the project footprint was sold to a third party following the expiration of Hecate’s option agreement for the property on September 17, 2023. The town requested that the application be denied with prejudice, or alternatively, that the project’s notice of complete application be withdrawn and a notice of incomplete application be issued requiring Hecate to submit major revisions to its application. During a procedural conference, the Administrative Law Judge assigned to the proceeding orally denied the motion to dismiss and directed the town to refile its motion as part of its issues statement due two weeks later. Instead, the town sought permission to file an appeal with the ORES Executive Director, arguing the ruling would be unduly prejudicial and result in significant inefficiencies in the hearing process. That appeal was allowed.

In its responsive filings to the town’s appeal, Hecate argued that in lieu of dismissal, the Executive Director should use his discretionary authority to either vacate the application’s notice of completion, or alternatively, hold the proceedings in abeyance pending future submissions from Hecate. Hecate further explained that, within 60 days, it intended to submit its plans to reduce the project’s capacity from 60 MW to 42 MW and its footprint from 267 acres to 215 acres as a result of the loss of the option property, which would only result in decreased identified adverse environmental impacts and require no new studies. Hecate also indicated by affidavit that it had been negotiating in good faith with the property owner and was unaware that the property had been sold to another party. Hecate argued that a strict reading of the 94-c regulations that would not allow for a new notice of incomplete or supplemental submissions would be “wholly inconsistent with both the efficient administration of this proceeding and the spirit of both Executive Law § 94-c and the ORES regulations, i.e., to appropriately facilitate renewable energy projects’ contribution to the State’s important climate and energy mandates.”

ORES staff also filed responsive filings taking the position that the ORES regulations are intentionally strict in not allowing for an application to be amended after it has been determined complete and after a draft permit has been issued, stating they reflect “an important legislative and regulatory policy choice that favors stringent and expedited regulatory timelines over more permissive amendment procedure, as reflected in other statutory and regulatory schemes such as the PSL article 10 siting process.” ORES staff further asserted that if changes need to be made to the application, the applicant can either withdraw the application and resubmit a new application or proceed with the issues determination process, in which ORES may consider the scope of the proposed changes and either incorporate any required changes into the final siting permit or deny the permit application. ORES staff asserted that Hecate would not be prejudiced by application withdrawal and resubmittal, given that in either case, there would be a 60-day delay.

In his decision, the ORES Executive Director treated the town’s motion to dismiss as a motion for summary judgment in accordance with Section 900-8.3(b) of the ORES regulations. The Executive Director determined that the town had made a prima facie case for dismissal based on Hecate’s inability to obtain the necessary property rights for the project and the fact that the application would need to be amended for the project to proceed. The decision concluded that the ORES regulations expressly prohibit amendment to a siting application following the issuance of the notice of complete application and distinguished the process set forth under the ORES regulations from the process under PSL Article 10 and former PSL Article X, where post-completeness amendments are permissible. The Executive Director also concluded an abeyance of the proceeding would be inappropriate in light of the one-year statutory timeframe for ORES to issue a decision on the project and the inability to extend that deadline by more than 30 days. 

However, the decision did stop short of granting the town’s request to deny the application “with prejudice,” concluding that the town had failed to make a sufficient offer of proof that the project could not be approved if modified to exclude the option property or that there was sufficient intentional conduct to justify such a decision. The fact that the denial is “without prejudice” means that Hecate may submit a new 94-c application for the project, which may propose a similar but modified facility. The Executive Director concluded that requiring Hecate to file a new application, notwithstanding the requirement to provide a new application fee and local agency account funding, is not “unduly prejudicial to applicant, particularly in light of the responsibility it bears for the loss of the Main parcel option.”

Barclay Damon will continue to monitor the ongoing proceedings. 

If you have any questions regarding the content of this alert, please contact Brenda Colella, Regulatory Practice Group leader and Regulatory Practice Area co-chair, at bcolella@barclaydamon.com; David Solimeno, associate, at dsolimeno@barclaydamon.com; or another member of the firm’s Regulatory Practice Area or Energy Team.
 

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