According to Trireme Energy, construction on the Cassadaga Wind project is too little, too late.
A recent complaint filed with the U.S. District Court Southern District of New York by Trireme Energy Holdings alleges that Innogy, former parent company of Cassadaga Wind, LLC, intentionally delayed construction on the project, which was scheduled to be operational by Dec. 31, 2020, in order to avoid making a milestone payment in the amount of $69.7 million.
The complaint states that Trireme Energy Holdings is the former owner of EverPower Wind, a renewable energy company that was founded in 2002. In December 2017, EverPower’s wind energy development pipeline was sold to Germany-based Innogy, and as a result of the merger, Innogy acquired the rights to develop several EverPower wind energy facilities, including Cassadaga Wind.
According to the merger agreement, Innogy agreed to use “commercially reasonable efforts” to develop Cassadaga Wind and pay Trireme Energy a “payment milestone amount” of $69.7 million. The complaint argues that “Innogy intentionally and unreasonably delayed development of the Cassadaga Project in order to avoid meeting certain development milestones by Oct. 1, 2019” to avoid paying the milestone amount. In particular, the complaint alleges that Innogy delayed the process of securing a required permit from the U.S. Army Corps of Engineers related to the mitigation of development projects on streams and wetlands.
In addition to the breach of agreement created by the delay, a separate provision was breached when Innogy allegedly failed to “reasonably cooperate with multiple requests from James Spencer, CEO of Trireme Energy Development, LLC, concerning the progress of the Cassadaga Project.” Now, Trireme Energy is demanding immediate payment of the milestone amount and other “remedies,” including monetary damages exceeding $75,000.
According to the complaint, Innogy’s violation of the merger began shortly after the project was given the green light by the state siting board on Jan. 17, 2018. On this date, Cassadaga Wind received its conditional Certificate of Environmental Compatibility and Public Need, which authorized construction and operation of the wind project. However, the certificate required that several conditions be met, including submission of two filings related to the impact of the wind project on any streams and wetlands on the proposed project site. The complaint states, “The Certificate Order setting forth these conditions was issued to Cassadaga Wind LLC on January 17, 2018. Yet Innogy did not file its first Wetlands Mitigation Plan with the Siting Board … until June 21, 2019.”
In fact, the complaint alleges that not only did Innogy file this plan 18 months after the certificate was issued, but that the filing did not actually contain a final wetlands mitigation plan but instead “contained a 25-page document titled ‘Conceptual Compensatory Wetland Mitigation Plan…’ Innogy knew that this ‘Conceptual’ plan did not meet the Siting Board’s requirements.”
The complaint alleges that “Innogy delayed in filing the Final Wetlands Mitigation Plan through Cassadaga Wind LLC until Sept. 20, 2019, over two months after the ‘mid-July 2019’ date stated in the Conceptual Mitigation Plan and a mere 11 days prior to (the payment milestone date of) Oct. 1, 2019.”
Additionally, the complaint alleges that Innogy knew such a late filing would trigger a 21-day notice and comment period under the Article 10 process, effectively ensuring that “the Siting Board would not be able to approve the compliance filings prior to Oct. 1, 2019” thereby by demonstrating that the project had not yet secured the approvals “reasonably required to finance, develop, construct, own, and operate the Cassadaga Project.”
According to a recent status report from Site Construction Manager Randy Buntjer, all trees are cut and the project is receiving deliveries of cabling equipment. Turbine receiving and erection activities will begin this month, and the point of interconnection substation structure at Moon Road is mostly completed. Additionally, turbine access roads are being completed, along with stump removal, to prepare for turbine foundation work in the next few weeks. The report did not mention a commercial operational date for the project.
Innogy appears to have divested itself of Cassadaga Wind, as Innogy’s website states that “since July 1, 2020, the Cassadaga project is part of RWE Renewables” and has already transferred its content on the project to RWE’s website. In his report, Buntjer, too, referenced the change: “Innogy is now officially RWE Renewables (Germany.) The merger has been in process for some time now, it’s now official as of July 1…”
The OBSERVER contacted Innogy for comment on the complaint; however, no response was received. An initial pretrial teleconference before Judge Valerie E. Caproni is set for Aug. 21.
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