Falmouth Wind II - MassDEP "Project Completion Certificate"

Most construction wind turbine projects set a date by which the works described in the contract must be completed. This is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is the date by which the works have been completed and the town can take possession of the wind turbine. Under the Project Regulatory Agreement signed between MassDEP and the Town of Falmouth the MassDEP had control of Falmouth Wind II and MassDEP was the state agency that issues the "Project Completion Certificate."

A. The Town of Falmouth has determined the residents living around Falmouth Wind Turbine # 2 waited too long to file litigation against the town. The Town of Falmouth asserts the Doctrine of Latches. The neighbors filed litigation in 2015. The Project Completion Certificate may have been issued after 2017.

B. The Town of Falmouth has never in the past been able to say if the money associated with Falmouth Wind Turbine # 2 was a loan or a grant. The Town of Falmouth in order to obtain an ARRA grant/ loan had signed a "Project Regulatory Agreement" ( a power production agreement) brokered with the Massachusetts Department of Environmental Protection and the Massachusetts Clean Water Trust.

This Project Regulatory Agreement ( a power production agreement) denied the Town of Falmouth a "Project Completion Certificate" from MassDEP as long as there was a chance Falmouth Wind II could stop producing power as a result of litigation. MassDEP had control of Falmouth Wind II.

There are very few Falmouth residents aware the Town of Falmouth signed a Project Regulatory Agreement ( a power production agreement) brokered by the Massachusetts Department of Environmental Protection for Falmouth Wind II. Even during the one year of Falmouth Wind Turbine Option Analysis Process (WTOP) meetings the town never disclosed the Project Regulatory Agreement.

C. As of April of 2013 the Massachusetts Department of Environmental Protection the state agency that brokered the ARRA stimulus grant/loan refused to issue a "Project Completion Certificate" for Falmouth Wind II.

D. The Project Completion Certificate required a determination of whether the money was a loan or a grant. The Project Completion Certificate may have very well been issued after July of 2017. July 2017 was the date the Massachusetts Water Trust converted the Falmouth loan to a zero percent loan in which case a "Project Completion Certificate" could be issued to the Town of Falmouth.

In other words, Falmouth Wind II was not considered complete until after July of 2017.

E. In retrospect the purpose of the 26 Falmouth Wind Turbine Option Analysis Process (WTOP) meetings which included videos at a cost of $136,000.00 was to engage in an open, transparent, and collaborative exploration of the range of options for the long-term future of the Town's two Wind Turbines – Wind I and Wind II. All the videos were shown on local Falmouth Community Television so the public could see the meetings.

The September 12, 2012, video which asked the question about the ARRA stimulus funds loan/grant remains missing and never shown on Falmouth Community Television.

In order to answer the ARRA stimulus funds, loan/grant question was it a loan or a grant would have required explaining to the citizens of Falmouth the Project Regulatory Agreement ( power production agreement) made with the Massachusetts Clean Water Trust brokered by the Massachusetts Department of Environmental Protection which included the "Project Completion Certificate."

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Excerpt :
April 2, 2013- Julian M. Suso, Town Manager

Town Hall 59 Town Hall Square

Falmouth, MA 02540

Dear Mr. Suso,

"This letter follows up on the telephone call by Commissioner Kenneth Kimmell, of the Department of Environmental Protection ("DEP" , to Julian Suso, the Town Manager of Falmouth, Massachusetts (the "Town") on Friday, March 29, 2013 concerning the Wind Turbine project at the Town's waste water treatment facility ("Wind II") that was funded with moneys provided through the American Recovery and Reinvestment Act of 2009 ("ARRA"). As the Commissioner indicated in that call, DEP and the Water Pollution Abatement Trust (the "T1ust") cannot unconditionally approve the Project Completion Certificate submitted by the Town to DEP on March 14, 2013 for Wind 11 if it has reason to believe that Wind 11 may cease operations."

Susan E. Perez Executive Director MWPAT and

Kenneth Kimmell, Commissioner MassDEP

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Excerpt:
Minutes Executive Committee Meeting Massachusetts Clean Water Trust DATE: July 26, 2017

START TIME: 1:35 PLACE: State House, Room 327 NOTICE: Due public notice given

MEMBERS OF THE EXECUTIVE COMMITTEE – PRESENT: Sue Perez, Executive Director of the Trust
Rachel Madden, Director of Finance & Administration of the Trust Steve McCurdy, Director of Program Development of the Trust ALSO PRESENT: Bernard Greene, Senior Legal Counsel of the Trust Nate Keenan, Deputy Director of the Trust Kristin LaCroix, Budget Director, DEP

3. Falmouth Wind Turbine. Ms. Perez commenced a discussion on one of the options to assist Falmouth that was discussed at the Board meeting. That option would convert the Falmouth loan to a zero percent loan and give the Town a credit for the principal that accrued during the period that Wind 2, which was funded by the Trust, was operating.

This would give the Town principal forgiveness during the period from the loan approval date through July 2017 and total forgiveness of interest. Ms. Perez circulated a spreadsheet showing this conversion. The original principal amount borrowed was $4.86 million, which at a 2% rate of interest would have resulted in total debt service of $5.9 million.

If the Board approves this option, the Town would have to pay $2.9 million in total debt service, comprised of principal only, beginning July 2018. $1 million of interest and $1.9 million of principal, related to the period that Wind 2 was operating, would be forgiven. Program counsel has reviewed this option and agrees that the Board has authority to offer zero percent interest. After the Board votes on August 2, the Trust will inform the Town by letter.

8. Principal Forgiveness. Ms. Perez circulated to the Committee a list of all principal forgiveness loans for projects that are completed but are not yet closed out with a project completion certificate. Receipt of DEP’s project completion certificate is required for the Trust to forgive the loan. The Trust will monitor these borrowers to help get their project completion certificates finalized.

https://www.mass.gov/files/documents/2017/11/06/07%2026%202017%20ExecCmte%20Minutes.pdf