Docket Nos. ER24-994-001, et al.
To borrow the famous line from the movie Cool Hand Luke,[1] “What we’ve got here is failure to communicate.” The developer, Welcome Solar LLC, and the transmission provider, PJM, make factual allegations that are in conflict. Many of the material allegations of fact are not self-proving, and on the written record—which is all we have—none are persuasive. In a civil court this would necessitate a hearing to determine the facts. I would prefer giving this matter to an administrative law judge to make findings of fact, but there exists a concern of continuing delay in the queue. So I reluctantly concur with today’s order because it basically preserves a status quo of sorts. Because the order is explicitly “without prejudice,”[2] it does not prevent PJM from making a subsequent filing that better supports and explains the factual assertions it relies upon, and, of course, Welcome Solar may respond to any such PJM filing.
Among the contradictory allegations of fact, PJM claims that, with the exception of the milestone related to the permit issue, Welcome Solar never cured the breach items that were subject of the March 7, 2023 Cure Letters. Welcome Solar states, however, that PJM acknowledged that the breaches had been cured on March 10, 2023 (PJM’s Cure Response). But, as PJM alleges and Welcome Solar acknowledges, PJM said more than that:
With reliance on the information you provided on March 7, 2023, PJM confirms that Welcome Solar, LLC, Welcome Solar II, LLC, and Welcome Solar III, LLC (the “Welcome Projects”) have cured their respective Breaches as set forth in the PJM Breach notices dated February 8, 2023. The Welcome Projects should continue to diligently pursue ongoing cure actions to completion, as applicable. Please continue to coordinate with the PJM and [ATSI] project managers on the project schedule and the remaining milestones.[3]
PJM’s statement about continuing “to diligently pursue ongoing cure actions to completion, as applicable” sounds similar to the Section 15.4.1 of Appendix 2 of the Welcome Solar ISAs, which the parties recognize states:
[T]he Breaching Interconnection Party (a) may cure the Breach within thirty days from the receipt of such notice; or (b) if the Breach cannot be cured within thirty (30) days, may commence in good faith all steps that are reasonable and appropriate to cure the Breach within such thirty day time period and thereafter diligently pursue such action to completion.[4]
PJM’s affiant states that he discussed with Welcome Solar’s counsel its “eligibility for suspension when the cure activities were completed.”[5] There is agreement in this record that Welcome Solar did enter into suspension. Among numerous arguments Welcome Solar raises related to this issue is that if PJM believed there were cure actions that remained incomplete—which Welcome Solar disputes—it should not have remained silent as long as it did.[6]
PJM alleges here that Welcome Solar did not cure—and should have done so before entering into suspension—the remaining milestone breaches raised in February and March 2023, and I am concerned about the impact those allegations may have on a well-running queue and on others in that queue. For example, I am concerned that PJM alleges that the “Substantial Sitework Completed” milestone was not completed to satisfy the threshold of 20% site completion. Today’s order states that PJM’s position “would appear to contradict” PJM’s Cure Response.[7] However, as today’s order also recognizes, those Cure Letters stated that ‘“civil construction activities, as allowed under current project permits, [are] expected to occur within the next few weeks.’”[8] And it appears that those civil construction activities may not have occurred as promised.
Again, today’s order makes clear that it is without prejudice to PJM’s refiling its Notice of Cancellation. If PJM continues to believe cancellation of the ISAs is called for, in addition to responding to the issues raised in today’s order, I encourage PJM to clearly outline any and all alleged failures by Welcome Solar to meet milestones, how those alleged failures relate to and can coexist with PJM’s Cure Response, and how those alleged failures and PJM’s Cure Response relate, if at all, to Welcome Solar’s suspension.[9] Detailed responses to these issues and those raised in today’s order will not only create clarity in the record, but such clarity will permit Welcome Solar to respond fully to any allegation.[10]
For these reasons, I respectfully concur.
[1] Cool Hand Luke (Warner Bros.-Seven Arts 1967).
[2] See, e.g., Order at PP 3, 68.
[3] See, e.g., Welcome Solar February 14, 2024 Protest (Welcome Solar February Protest) at 13 (emphasis in original and added) (quoting Ex. K, March 10, 2023 Email from Jeffrey Gray, Counsel, PJM, to Alexander Smorczewski, Counsel, Welcome Solar).
[4] See, e.g., id. at 6 (emphasis in original and added) (quoting Welcome Solar I ISA, Appendix 2, Section 15.4.1).
[5] PJM Answer to Complaint, Att. A, Gray Aff. ¶ 13.
[6] See, e.g., Welcome Solar Answer to PJM Answer at 19-21.
[7] Order at P 79.
[8] Id. P 27; see, e.g., Welcome Solar February Protest at Ex. J (March 2023 Cure Letters).
[9] Alternatively, PJM may request rehearing and point out exactly where in the record the responses to the questions raised are presented clearly in the record before us.
[10] While I concur to this order, I take issue with the last sentence in paragraph 82 which appears not only to be inconsistent with this order’s agreement—in that same paragraph—that it is within PJM’s discretion to determine whether a milestone extension will be granted, but it also appears to be a gratuitous and inappropriate shot at PJM’s very discretion.