Apex Mills Branch Solar Denied Permit: DECISION

Public Utility Law Judge Dennis H. Sober of the Maryland Public Service Commission, has denied a permit for Apex Clean Energy, Inc to construct the Mills Branch Solar project proposed for Kent County Maryland. The project was expected to have a nameplate capacity of 60 MW spread across 330 acres of Maryland farmland. The project was opposed by the Kent County board of Commissioners and residents in the area. Apex previously tried to site a wind energy facility in the same area on 5,000 acres but opposition to the turbines forced the company to change from wind to solar. A portion of Judge Sober's decision is provided below. The full decision can be accessed by clicking the document icon on this page.


I find not all the factors which must be considered pursuant to PUA § 7-207 are in dispute. I find if the Project were operated subject to the proposed Licensing Conditions of PPRP and Staff, it may operate with no impact upon the reliability and stability of the electric system. This finding is undisputed by any Party. 

I further find no evidence in the record indicating the Project will have any negative effect upon aviation safety, air and water pollution, or upon timely disposal of wastes produced.

I further find the recommendation of KC (the governing body)74 is that the application should be denied. The County's opposition is based upon several positions it holds: The Project is contrary to the zoning requirements in its LUO, the loss of prime farm soil from crop production, the negative impact upon the viewscape, the harm to the tourist industry, the negative effect on historic sites and the Heritage Area, as well as the loss of local control over the type and location of industrial sized solar farm development in the County. 

The remaining factors: economics, esthetics and historic sites,75 are hotly disputed as to whether or not the evidence supports a finding that the Project is in the Public Convenience and Necessity. 

I find the evidence in support of the granting of a CPCN falls short of proving that the Project meets the standard of Public Convenience and Necessity. I find that the weight of the evidence pertaining to the location of the Project is more negative than positive in its persuasive value of creating benefits to KC and Maryland. The testimony of the KC-KKS witnesses on the issue of the location of the Project and the effects caused by this location is more persuasive than those of MBS. I further find the Proposed Licensing Conditions of PPRP and of Staff are inadequate to mitigate the negatives created by the location selected by MBS for the Project.

Both the Staff and PPRP made appropriate evaluations of the factors they are required to undertake, but both failed to give adequate weight to the position of KC in its opposition to the Project. I find that Staff and PPRP over-valued the evidence of need and the value of adding solar generation in their support of granting a CPCN, but under-valued the importance of the opposition of the local government. Local opposition was based upon a reasonable application of land use policies that are based upon the local knowledge of what is the best policy for the citizens of KC. Local control over the amount, location, and type of development must be respected by the Commission when there is no weight of evidence of need or benefit to outweigh the local opposition. The weight of the evidence of harm being caused, if the Project is built, was significant and was a major factor in my decision to deny the Application. 

I find the request of OPC for a denial of the CPCN without prejudice has no practical value. If MBS proposes another location for the Project, MBS would still have to undertake all of the same groundwork for the new site. In the alternative, if MBS were to determine that no better location is available; I find that the current location is still unacceptable. A discussion of the Proposed Licensing Conditions, offered by both the Staff and of PPRP, will not be undertaken herein. The need for Licensing Conditions only exists if a CPCN, to which the Conditions would apply, were granted. The CPCN is denied which makes the Proposed Licensing Conditions a moot issue. 

I therefore find that the Application for the CPCN requested by Mills Branch Solar, LLC. is denied as it fails to satisfy the Public Convenience and Necessity requirement of PUA § 7-207.

IT IS, THEREFORE, this 10th day of January, in the year Two Thousand Seventeen, ORDERED:

(1) That the Application filed by Mills Branch Solar, LLC. for a Certificate of Public Convenience and Necessity to construct a 60.0 MW solar photovoltaic generating facility in Kent County, Maryland is hereby denied in accordance with the findings and decisions rendered herein.

(2) That all motions not granted herein are denied.

(3) That this Proposed Order will become a final order of the Commission on February 10, 2017, unless before that date an appeal is noted with the Commission by any party to this proceeding as provided in Section 3-113(d)(2) of the Public Utilities Article, or the Commission modifies or reverses the Proposed Order or initiates further proceedings in this matter as provided in Section 3-114(c)(2) of the Public Utilities Article.

Kent County Apex Solar Denied Decision

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JAN 11 2017
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