MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 98
Docket: PUC-25-51
Argued: January 7, 2026
Decided: September 17, 2026
Panel: STANFILL, C.J., and MEAD, LAWRENCE, and DOUGLAS, JJ., and HORTON, A.R.J.
BERWICK SOLAR, LLC
v.
PUBLIC UTILITIES COMMISSION et al.
LAWRENCE, J.
[¶1] Berwick Solar, LLC, appeals from an order of the Public Utilities
Commission dismissing its complaint against Central Maine Power Company
(CMP) alleging that CMP issued final reconciliation statements outside the time
periods established in both 65-407 C.M.R. ch. 324, § 15(J) (effective Nov. 20,
2023)1 and the standard-form Interconnection Agreement (IA) that Berwick
Solar and CMP entered into under Chapter 324. See 65-407 C.M.R. ch. 324,
§ 4(A). We affirm.
1 As noted by the Commission in its briefing, none of the parties argue that anything besides the current version of Chapter 324 (effective Nov. 2023) should apply despite Berwick Solar and CMP entering the IA on March 6, 2020. The Commission applied the current version in the order on appeal here. Although the version of Chapter 324 provided by Berwick Solar in the appendix in this case was effective January 9, 2022, we cite the current version of Chapter 324.
2
I. BACKGROUND
[¶2] The following facts and procedural background are drawn from the
administrative record and the Commission’s order dated January 15, 2025.
See, e.g., Off. of the Pub. Advoc. v. Pub. Utils. Comm’n, 2023 ME 77, ¶ 2, 306 A.3d
633.
[¶3] On March 6, 2020, Berwick Solar and CMP entered into the IA
pursuant to 65-407 C.M.R. ch. 324, § 4(A), which provides the method by which
small electric power generators may interconnect with electrical transmission
and distribution systems. See 65-407 C.M.R. ch. 324, §§ 1-18. The IA was for
Berwick Solar’s photovoltaic generation facility. It estimated total
interconnection costs of $65,522 plus SCADA2 costs. Those amounts were
based on a feasibility/impact final report dated January 29, 2020. Berwick
Solar chose not to obtain a facilities study, which would have provided more
detail of the cost of system modifications necessary to connect Berwick Solar’s
project to CMP’s electric distribution system. Berwick Solar paid to CMP the
estimated cost in the IA in advance of CMP completing the connection to CMP’s
2 Although not defined in the record for this matter, we understand that in the utilities field “SCADA” is an acronym that stands for Supervisory Control and Data Acquisition. See Portland Cellular P’ship v. Town of Cape Elizabeth, 139 F. Supp. 3d. 479, 482 (D. Me. 2015).
3
electric distribution system. The project was operational in May 2021, and CMP
sent Berwick Solar a certification of completion on May 5, 2021.
[¶4] On February 24, 2022, CMP sent Berwick Solar a reconciliation
statement pursuant to 65-407 C.M.R. ch. 324, § 15(J) and article 5.1.2 of the IA,
seeking $45,502.73 in additional interconnection costs. Upon receiving the
statement, Berwick Solar asserted that the statement was time-barred under
article 5.1.2 of the IA because CMP failed to issue the statement within ninety
days of completing the construction and installation of the interconnection
facilities and upgrades.3 In response, CMP pointed Berwick Solar to the default
provision found in article 6.6 of the IA4 and stated that Berwick Solar had the
3 Chapter 324 § 15(J) provides for a sixty-day period for a transmission and distribution utility to
issue a final reconciliation statement of actual costs, but article 5.1.2 of the IA contains a ninety-day period. There is no dispute between the parties that CMP did not issue the final reconciliation statement within either of the time periods and, as discussed infra ¶¶ 13-16, we reach the same conclusion under both Chapter 324 and the IA.
4 Article 6.6 of the IA, “Default” provides,
6.61 No Default shall exist where such failure to discharge an obligation (other than
the payment of money) is the result of a Force Majeure Event as defined in this
Agreement, or the result of an act or omission of the other Party. Upon a Default, the
non-defaulting Party shall give written notice of such Default to the defaulting Party.
Except as provided in Article 6.6.2, the defaulting Party shall have sixty calendar days
from receipt of the Default notice within which to cure such Default; provided
however, if such Default is not capable of cure within sixty calendar days, the
defaulting Party shall commence such cure within twenty calendar days after notice
and continuously and diligently complete such cure within six months from receipt of
the Default notice; and, if cured within such time, the Default specified in such notice
shall cease to exist.
6.6.2 If a Default is not cured as provided for in this Article, or if a Default is not
capable of being cured within the period provided for herein, the non-defaulting Party 4
right to notify CMP of a default, including a failure to timely provide the final
cost reconciliation statements. CMP also asserted that because CMP had
already provided the reconciliation statement, there was no longer any default
to cure, and Berwick Solar was required to pay the costs within thirty calendar
days of receiving the statement.
[¶5] On January 16, 2023, CMP issued a second cost reconciliation
statement, this time seeking $27,655.83—a reduction from the February 2022
reconciliation statement. Finally, on May 19, 2023, CMP issued a third, lower
cost reconciliation statement, this time seeking $23,655.83. Berwick Solar
maintained its position that the statements were time-barred. It also asserted
that the reconciliation statements lacked the necessary written explanation of
the significant variation between the statements. Berwick Solar made specific
requests in May 2023 for supporting information to explain the costs. CMP
responded in June 2023 that it was working on putting together responses to
the requests for information, but at the time of the hearing CMP had not
responded.
shall have the right to terminate this Agreement by written notice at any time until
cure occurs, and be relieved of any further obligation hereunder and, whether or not
that Party terminates this Agreement, to recover from the defaulting Party all
amounts due hereunder, plus all other damages and remedies to which it is entitled
at law or in equity. The provisions of this Article will survive termination of this
Agreement.
5
[¶6] CMP and Berwick Solar had no further contact until April 2024
when CMP sent Berwick Solar a notice of default for nonpayment of $27,655.93.
CMP stated that it would regard the claim of default as “on pause” until the
impending dispute-resolution process concluded. Berwick Solar and CMP
followed the informal dispute-resolution procedure in July 2024, see 65-407
C.M.R. ch. 324, § 17(A)-(B), but could not resolve the dispute. Berwick Solar
requested that the dispute proceed to the formal adjudication process
established by 65-407 C.M.R. ch. 324, § 17(C).5
[¶7] Following the submission of pre-filed testimony from Berwick Solar
and briefs from Berwick Solar and CMP, the Commission held a contested
hearing in August 2024. On November 8, 2024, the hearing examiners issued a
report recommending that the Commission dismiss Berwick Solar’s complaint.
On November 22, 2024, CMP filed comments in support of the hearing
examiners’ report, and Berwick Solar filed exceptions to the report.
[¶8] The Commission dismissed Berwick Solar’s complaint in an order
dated January 15, 2025. In its order, the Commission concluded that nothing in
Chapter 324 or the IA allows it to release Berwick Solar from its obligation to
5 Section 17(C) provides that if the parties cannot resolve a dispute under the informal process,
“then either Party may send written notice to Commission Staff requesting an adjudicatory proceeding.” Article 8 of the IA incorporates the dispute-resolution process contained in Chapter 324.
6
pay the actual construction costs for the interconnection of its project. It
determined that section 3 of Chapter 324 is explicit that interconnection
customers, like Berwick Solar, are required to pay the actual interconnection
costs. See 65-407 C.M.R. ch. 324, § 3(A). The Commission explained that
Berwick Solar’s project had been operating for more than three years without
paying the actual costs and that CMP’s invoices for Berwick Solar’s actual costs
have decreased over time, leading the Commission to believe that Berwick Solar
may have been charged a higher amount if the invoice had been issued within
the ninety-day period. Despite concluding that Berwick Solar was not relieved
of its obligation, the Commission noted that it was concerned that CMP did not
notify Berwick Solar of the delay in sending a reconciliation statement and that
CMP did not provide an explanation of why it did not communicate with
Berwick Solar before the expiration of the ninety-day period. Nevertheless, the
Commission found that the delay in issuing the reconciliation statement was
based on CMP’s good-faith effort to reduce costs for developers. The
Commission also found that Berwick Solar was not prejudiced by the delay in
receiving the reconciliation statement because it had the option to notify CMP
that it was in default of the IA and to require CMP to cure the default, but, once
CMP provided the statements, there was no longer anything to cure. Further,
7
the Commission found that Berwick Solar did not have a reasonable expectation
that the estimated cost contained in the IA was the full and final cost identified
in Exhibit 6 of the IA.6
[¶9] As to Berwick Solar’s challenge regarding the information CMP was
required to provide in support of the multiple reconciliation statements it
provided, the Commission concluded that no part of Chapter 324 required CMP
to provide Berwick Solar with actual purchase orders or invoices related to
contractor services. It did, however, find that CMP had not explained why the
notice of default for nonpayment indicated that $27,655.83 was the amount
owed by Berwick Solar instead of the $23,655.83 contained in the third
statement, and it advised that CMP should send Berwick Solar a statement for
the corrected, lower amount. In a footnote, the Commission declined to address
Berwick Solar’s argument with respect to the appropriateness of assessing a
share of CMP’s “pooled costs” incurred for all small generators because it was
not necessary to decide the current dispute, but it did note that the pooled-costs
approach resulted in reduced costs for Berwick Solar.
6 Exhibit 6 contained an estimate of $65,522 and further provided, “[T]he Customer shall be responsible for all costs of such electrical system modifications, even if they are in excess of [the estimate], plus twenty-five percent.”
8
[¶10] Neither party filed any further requests with the Commission after
the Commission issued its order.7 (See A. 3.) Berwick Solar timely filed a notice
of appeal. See 35-A M.R.S. § 1320 (2026); M.R. App. P. 2B(c)(1), 22.
II. DISCUSSION
[¶11] The issues here revolve around the interpretation of Chapter 324
and the standard-form IA that CMP and Berwick Solar were required to use
when contracting for the interconnection of Berwick Solar’s project to CMP’s
electric distribution system. 65-407 C.M.R. ch. 324, § 4(A) (“Standard forms
adopted by order of the Maine Public Utilities Commission shall be used for all
. . . Interconnection Agreements.”). The IA also provides that “[t]he validity,
interpretation and enforcement of this Agreement and each of its provisions
shall be governed by the laws of the State of Maine . . . . This Agreement is
subject to all Applicable Laws and Regulations.” Consistent with fundamental
principles of contract law, we interpret Chapter 324 to be part of the form
agreement at issue here because regulations “governing the subject matter of a
contract must under normal circumstances be read as a constituent part
thereof.” Wescott v. Allstate Ins., 397 A.2d 156, 166 (Me. 1979); see also Rehart
7Berwick Solar did not petition to change, modify, or reconsider any part of the Commission’s order despite its ability to do so within twenty days of the order being issued. See 65-407 C.M.R. ch. 110, § 11(D) (effective Nov. 26, 2012).
9
v. Clark, 448 F.2d 170, 173 (9th Cir. 1971) (stating that valid regulations have
the force and effect of laws of general application and “are read into contracts
in order to fix the rights and obligations of the parties”); 11 Richard A. Lord,
Williston on Contracts § 30:19 (4th ed. 2012) (stating that valid laws, including
regulations, “existing at the time of the making of a contract enter into and form
a part of the contract as fully as if expressly incorporated in the contract”).
Chapter 324, which both requires an IA and constitutes part of it, governs this
dispute.
A. Berwick Solar is not relieved of its obligation to pay CMP the actual
cost of construction for the interconnection of its project.
[¶12] “On appeal, the party challenging the [Commission’s] decision has
the burden of showing that the agency’s action was arbitrary or based on an
error of law.” Cent. Me. Power Co. v. Pub. Utils. Comm’n, 2014 ME 56, ¶ 19, 90
A.3d 451 (quotation marks omitted). When the challenge to the Commission’s
order involves its interpretation of a regulation, we employ a two-step inquiry.
Off. of the Pub. Advoc. v. Pub. Utils. Comm’n, 2024 ME 11, ¶ 12, 314 A.3d 116.
“First, we determine de novo whether the rule is reasonably susceptible of
different interpretations and therefore ambiguous. If the language is clear, we
apply the regulation’s plain language. If the language is ambiguous, we review
the Commission’s construction of the ambiguous rule for reasonableness and
10
defer to the Commission’s interpretation unless the rule plainly compels a
contrary result.”8 Id. (alterations, citations, and quotation marks omitted);
accord Cent. Me. Power Co., 2014 ME 56, ¶¶ 18-19, 90 A.3d 451.
[¶13] The crux of this dispute involves two sections of Chapter 324:
section 15(J) and section 3(A). Section 15(J) provides that
[w]ithin sixty (60) Business Days after issuance of the later of (i)
T & D Utility’s formal Notice of Approved Operation, or (ii)
submittal of final as-built drawings to the T & D Utility, the T & D
Utility shall prepare and submit to the Applicant a final
reconciliation statement of its actual costs less any Payment of
System Modifications made by the Applicant, with a detailed
breakdown of costs for review by the Applicant.
8Berwick Solar argues that a less deferential standard of review applies here, asserting that because the Commission changed its position as to the “deadline” set in Chapter 324 and the IA without a reasoned explanation, its decision is entitled to less deference, and the action is arbitrary and capricious. See Cassidy Holdings, LLC v. Aroostook Cnty. Commr’s, 2023 ME 69, ¶ 16 n.4, 304 A.3d 259 (“An agency is free to change its mind in its interpretation of a statute. But if it does so, the agency must acknowledge that it is making a change, explain why, and give due consideration to the serious reliance interests on the old policy.” (citation omitted)). We disagree. In none of the prior Commission orders cited by Berwick Solar did the Commission interpret the regulation to provide, as Berwick Solar suggests, that absent a grant of exemption, no further adjustments may be made beyond the “deadline” and that the interconnection customer is relieved of its obligation to pay any outstanding actual costs of project construction. See Cent. Me. Power Co., Request for Approval of Waiver Regarding Section 12(G) of Chapter 324, No. 2021-00082, Order (Me. P.U.C. May 6, 2021); Cent. Me. Power Co., Request for Waiver of Chapter 324 § 13(J), No. 2021-00306, Order (Me. P.U.C. Dec. 16, 2021); Cent. Me. Power Co., Request for Waiver of Section 12(J) of Chapter 324 of the Commission Rules, No. 2021-00306, Order (Me P.U.C. Sept. 30, 2022); Cent. Me. Power Co., Request for Waiver of Section 12(J) of Chapter 324 of the Commission Rules, No. 2021-00306, Order (Me. P.U.C. Nov. 29, 2022). The Commission was not required to provide a reasoned explanation because it did not change its position and thus did not act arbitrarily and capriciously. Moreover, because we conclude that the language of Chapter 324 is not ambiguous, we do not reach the second step of the inquiry, in which deference would be accorded.
11
The parties do not dispute that under section 15(J), CMP was required to send
Berwick Solar the final cost reconciliations for the project within sixty days.9
Berwick Solar argues that this “final accounting clause” contains a time limit of
sixty days and that when CMP missed the deadline, Berwick Solar was relieved
of its obligation to pay the actual cost of construction for interconnection of its
project to CMP’s electric distribution system. Given the language of section
15(J), Berwick Solar’s contention is incorrect. Although the plain language of
section 15(J) requires CMP to send the final reconciliation statement within the
sixty-day period, Berwick Solar’s obligation to pay the actual construction cost
of its project is not conditioned on CMP’s timely sending the statement. There
is nothing in the language of this clause that indicates that CMP’s failure to
timely send a final reconciliation statement would result in the discharge of
Berwick Solar’s obligation to pay the actual construction costs.
[¶14] Rather, Berwick Solar’s obligation to pay the actual cost of its
project is specified in section 3(A), which governs responsibilities for costs, and
which provides:
[a]n Interconnection Customer shall be responsible for (1) the
actual construction cost of its Interconnection Facilities, as may be
9 Berwick makes its arguments relying on the ninety-day deadline contained in article 5.1.2 of the
IA. As discussed above, see supra n.3, the number of days is inconsequential because CMP did not send the reconciliation statement within the sixty- or ninety-day period. For clarity, we refer to the period as the sixty-day period because that is the period contained in Chapter 324. 12
adjusted for Contingent Upgrades pursuant to § 14(F), and (2) all
expenses, including overheads, associated with owning, operating,
maintaining, repairing and replacing its Interconnection Facilities.
Thus, Berwick Solar’s obligation to pay is established in a section of the
regulation that is separate and apart from, and not at all linked to, the section
regarding CMP’s responsibility to send a reconciliation statement. In the
absence of any cross-reference, this regulatory structure makes clear that
neither of those responsibilities is conditioned upon the other. Moreover, the
consequence of CMP’s failing to adhere to the sixty-day period is made clear
elsewhere in Chapter 324. Under section 16, “[t]he Commission may assess
financial penalties on [CMP] . . . for failure to comply with the required timelines
listed in this Chapter.” 65-407 C.M.R. ch. 324, § 16. Therefore, the consequence
for CMP’s untimeliness in the furnishing of a reconciliation statement is a
financial penalty, not a discharge of Berwick Solar’s obligation to pay the actual
cost of its project’s connection to CMP’s electric distribution system. Based on
the unambiguous language of Chapter 324, Berwick Solar is not discharged
from its obligation to pay the actual cost of connection documented in the
belated reconciliation statements.10
10 Even if we were to conclude that Chapter 324 is ambiguous, we would “review the Commission’s
construction of the ambiguous rule for reasonableness and defer to the Commission’s interpretation unless the rule plainly compels a contrary result.” Off. of the Pub. Advoc., 2024 ME 11, ¶ 12, 314 A.3d 116 (alterations, citations, and quotation marks omitted). Reviewing the Commission’s
13
[¶15] The regulation required Berwick Solar and CMP to enter into the
IA, and because we have interpreted the regulation’s unambiguous language,
we conclude that the parallel provisions contained in the IA do not compel a
different result here. While the IA does not have an analogous article
permitting the Commission to impose financial penalties for untimeliness of a
reconciliation statement, it does contain a provision that the parties can use to
seek relief when one party is not abiding by the terms in the IA, giving force and
effect to the provisions of the IA regarding both the furnishing of reconciliation
statements and the payment of the actual cost of connecting Berwick Solar’s
project to CMP’s electric distribution system.11
[¶16] Regardless of whether Chapter 324 or the IA governs this dispute
about timing, they both unambiguously provide for the responsibilities of each
interpretation of Chapter 324 with considerable deference, we cannot conclude that the Commission’s interpretation was unreasonable. We discern no legal error or arbitrariness in its construction of its own rules because, when examining Chapter 324 as a whole, there is no language that would lead to the consequence that Berwick Solar is relieved of its obligations to pay actual costs.
11 Berwick Solar contends that by failing to follow Maine case law regarding contract interpretation, the Commission’s decision was arbitrary and capricious and an error of law. Berwick asserts that the Commission’s interpretation fails to give force and effect to the ninety-day period contained in article 5.1.2 of the IA. This argument is unpersuasive. Section 16 of Chapter 324 controls, and the default provision of the IA also provides mechanisms—that could have been but were not employed here—that would address the untimely delivery of a reconciliation statement, giving effect to the ninety-day period. See Am. Prot. Ins. Co. v. Acadia Ins. Co., 2003 ME 6, ¶ 12, 814 A.2d 989 (stating that we consider a contract as a whole when construing it to give force and effect to all its provisions to avoid rendering any provisions meaningless). Therefore, we reject Berwick Solar’s argument and conclude that the Commission’s decision did not fail to follow Maine case law on interpreting contracts.
14
party without making them conditional upon one another; provide mechanisms
to address untimeliness, which Berwick Solar did not pursue; and do not
discharge Berwick Solar from its obligation to pay the actual cost of the
interconnection.12
B. The Commission did not err or act arbitrarily and capriciously by
concluding that CMP is not required to provide purchase orders or
contractor invoices to support assessments of actual
interconnection costs.
[¶17] Berwick Solar argues that, even if the belated reconciliation
statements are not time-barred, the Commission acted arbitrarily and
capriciously and erred as a matter of law by concluding that CMP is not required
to provide purchase orders or invoices to support its claimed actual
interconnection costs. The Commission and CMP contend that Chapter 324
does not require a utility to provide supporting contractor invoices and
purchase orders.
12 Berwick Solar also argues that the Commission’s decision was arbitrary and capricious because
it failed to reference or discuss two federal circuit court cases. This argument is unpersuasive for two reasons. First, the Commission was not required to discuss or rely on nonbinding case law from other jurisdictions. See Me. Coal. to Stop Smart Meters v. Pub. Utils. Comm’n, 2023 ME 8, ¶ 10 n.7, 288 A.3d 1195. Second, the federal cases Berwick Solar cites to are inapposite because neither is interpreting language similar to that of Chapter 324 or the IA. See Okla. Gas & Elec. Co. v. FERC, 11 F.4th 821, 827 (D.C. Cir. 2021); Bos. Edison Co. v. FERC, 856 F.2d 361, 372-74, 377 (1st Cir. 1988).
15
[¶18] We again begin by reviewing the language of the regulations
de novo, applying the language if its meaning is plain. Off. of the Pub. Advoc.,
2024 ME 11, ¶ 12, 314 A.3d 116.
[¶19] The Commission concluded that there was nothing in Chapter 324
that required CMP to provide Berwick Solar with any actual purchase orders or
invoices related to contractor services. Berwick Solar points to article 5.1.2 of
the IA and section 15(J) of Chapter 324 and asserts that they require CMP to
send “a written explanation for any signification variation” and a detailed
breakdown of costs so that Berwick Solar is able to challenge the assessed
charges, and that the “written explanation” necessarily includes purchase
orders and invoices.
[¶20] We agree that Berwick Solar’s ability to challenge the details of the
cost breakdown may be hindered without detailed supporting information;
however, we disagree that either Chapter 324 or the IA specifically requires
CMP to afford access to original or provide copies of purchase orders and
invoices as the detailed supporting information. Per Chapter 324, CMP was
required to submit to Berwick Solar “a final reconciliation statement of its
actual costs . . . with a detailed breakdown of costs for review by [Berwick
Solar].” 65-407 C.M.R. ch. 324, § 15(J). A breakdown of costs could include the 16
costs segmented by categories such as internal labor, materials, contractors,
and other categories relevant to completing the interconnection of the project.
The language of Chapter 324 does not require CMP to provide Berwick Solar
with a more granular breakdown of costs by way of purchase orders for
materials or contractor invoices for the connection to CMP’s electric
distribution system.
[¶21] Moreover, Berwick Solar’s argument—that the Commission’s
interpretation of Chapter 324 gives CMP a “blank check” to assess charges that
cannot be reviewed or challenged for propriety or eligibility for assessment—
is not persuasive. Specifically, we note that once Berwick Solar initiated the
dispute process under 65-407 C.M.R. ch. 324, § 17(C) to proceed to a formal
adjudicatory proceeding, it was able to engage in discovery and could have, for
example, served data requests on CMP. 65-407 C.M.R. ch. 110, § 9(B). There is
no evidence in the record that Berwick Solar sought to obtain the necessary
information through discovery requests to CMP in order to contest the costs
contained in the reconciliation statements. For reasons that are not clear,
17
Berwick Solar chose not to use the process available to obtain the information
that it purportedly sought.
C. The Commission’s decision with respect to pooled costs was neither
arbitrary and capricious nor an error of law.
[¶22] Berwick Solar argues that, even if the belated reconciliation
statements are not time-barred, the Commission acted arbitrarily and
capriciously and erred as a matter of law by failing to address the contested
issue of CMP’s assessment of pooled costs not incurred solely to complete the
connection of Berwick Solar’s project to CMP’s electric distribution system.
[¶23] We do not entertain Berwick Solar’s arguments about the
appropriateness of the assessment of pooled costs because Berwick Solar did
not seek reconsideration of the Commission’s decision that it did not need to
address the pooled-costs issue. See 65-407 C.M.R. ch. 110, § 11(D).
Nonetheless, Berwick Solar argues on appeal that the Commission acted
arbitrarily and capriciously, and also erred as a matter of law, by failing to
address the issue. In the context of appeals from administrative agency
decisions, “it is important for a party to raise an issue of [regulation]
interpretation during the proceedings before that agency to give it an
opportunity to consider the argument first.” Cent. Me. Power Co., 2014 ME 56,
¶ 20, 90 A.3d 451. Chapter 324 provides that Berwick Solar would be
18
responsible for “all expenses, including overheads, associated with owning,
operating, maintaining, repairing and replacing its Interconnection Facilities.”
65-407 C.M.R. ch. 324, § 3(A) (emphasis added). Therefore, the Commission
should have the opportunity to first interpret Chapter 324 to determine
whether pooled costs can be assessed.
[¶24] The Commission declined to discuss pooled costs, and we conclude
that the Commission’s determination was reasonable. Although Berwick Solar
did argue to the Commission, in its brief, that it should not have been assessed
pooled costs incurred on a generalized basis, it nevertheless conceded that the
main issue before the Commission in the adjudicatory proceeding was the
timing of the reconciliation statements, and Berwick Solar did not press for the
Commission to reach the issue of whether CMP could assess pooled costs.
Specifically, Berwick Solar expressed to the Commission that “the most
important part [of the proceeding] is to resolve this interpretive issue as to
what, if any, effect does that 90-day clause have.” In addition, Berwick Solar
agreed with the Commission that had CMP issued the reconciliation statement
within the ninety-day period, the primary issue would not exist. Thus, when
Berwick Solar began presenting an argument about the pooled costs, the
Commission interrupted, stating that it did not seem relevant to the proceeding.
19
Berwick Solar’s response was that the amount was also being contested but
that the parties would focus on resolving the timing issue in the proceeding and
address pooled costs later. The Commission concluded the discussion with the
sentiment that the proceeding was limited to the timing issue.13 Thus, the
Commission properly declined to reach the issue of pooled costs because
Berwick Solar, while making the argument, did eventually concede that the
interpretation of the sixty-day period was the main issue for the Commission’s
consideration.
[¶25] To the extent that Berwick Solar argues before us that CMP cannot
assess pooled costs, we conclude that CMP properly included pooled costs in
the actual costs of the interconnection. The pooled costs disputed by Berwick
are the indirect costs that CMP was incurring to bring these projects into
fruition, including the costs of internal employees and the use of companyissued computers. Using the pooled-cost approach was a method of revising
13 CMP also agreed that Berwick Solar’s challenge came down to the timing issue. 20
the types of applicable overhead costs and reallocating those costs in line with
a project’s direct costs to reduce the overhead rates for developers.
D. The Commission did not err or act arbitrarily when it concluded that
Berwick Solar was not prejudiced by the belated reconciliation
statements.
[¶26] Finally, Berwick Solar argues that the Commission acted arbitrarily
by failing to address witness testimony regarding the adverse impacts of
allowing the assessment of costs beyond the sixty-day period. The Commission
and CMP both contend that there was substantial evidence in the record to
support the Commission’s finding that Berwick Solar was not prejudiced by
CMP’s delayed reconciliation statements.
[¶27] “We will sustain findings of fact issued by the Commission unless
they are not supported by substantial evidence in the record.” Me. Coal. to Stop
Smart Meters v. Pub. Utils. Comm’n, 2023 ME 8, ¶ 7, 288 A.3d 1195 (alterations
and quotation marks omitted). On appeal, “[o]ur review does not involve any
weighing of the merits of evidence; instead, we will vacate an agency’s factual
findings only if there is no competent evidence in the record to support the
findings . . . even if the record contains inconsistent evidence or evidence
contrary to the result reached by the agency.” Snakeroot Solar, LLC v. Pub. Utils.
Comm’n, 2025 ME 64, ¶ 37, 340 A.3d 99 (quotation marks omitted).
21
[¶28] Competent evidence in the record supports the Commission’s
finding that Berwick Solar was not prejudiced by CMP’s delay in furnishing the
reconciliation statements, largely because Berwick Solar could have, but did
not, notify CMP that it was in default when Berwick Solar did not receive a
reconciliation statement within the sixty-day period. Further, Berwick Solar
did not have a reasonable expectation that the estimate contained in Exhibit 6
to the IA was the full and final amount because of the decision to forgo a
facilities study that would have provided a more detailed cost estimate.
Berwick Solar had the expectation that a final reconciliation statement would
be issued at some point after it received the certification of completion given
both Exhibit 6 and Exhibit 3, which collectively demonstrate that CMP and
Berwick Solar agreed that the information in Exhibit 3 outlining the
interconnection facilities support charges would be amended once CMP
determined the actual costs. Instead of alerting CMP to its failure to comply
with the terms of Chapter 324 and the IA as soon as the sixty-day period ran,
Berwick Solar chose not to do so and risked receiving the final reconciliation
statement even further down the road.
[¶29] Although Berwick Solar did provide testimony regarding the
adverse impacts late reconciliation statements could have on financial closure 22
and project valuation, the Commission’s determination was not compelled by
Berwick Solar’s evidentiary presentation. The Commission did not have to
believe the hypothetical impact that Berwick Solar postulated, because there is
no evidence in the record that Berwick Solar’s financing was affected in any way
because of the belated reconciliation statements. Consequently, the
Commission determined that Berwick Solar was not actually prejudiced by the
belated reconciliation statements. The amount sought in the reconciliation
statements in fact decreased, with additional costs assessed at $45,502.73 in
the first statement, $27,655.83 in the second, and $23,655.83 in the final one.
This resulted in lower costs to Berwick than what would have been assessed
had the reconciliation statement been issued within the sixty-day period. The
record, therefore, does not compel a determination that Berwick Solar suffered
prejudice.
III. CONCLUSION
[¶30] We conclude that the regulation is clear. The failure to issue a
reconciliation statement within the sixty-day period does not relieve Berwick
Solar of its obligation to pay the actual costs of construction for interconnection
that CMP incurred, including pooled overhead costs, and CMP is not required to
provide purchase orders and contractor invoices unless Berwick Solar
23
requested those documents through the formal dispute-resolution process.
Moreover, the Commission’s finding that Berwick Solar was not prejudiced by
the belated reconciliation statements is supported by competent evidence in
the record.
The entry is:
Judgment affirmed.
Edward W. Gould, Esq., Gross, Minsky & Mogul, Bangor, and Dennis Duffy, Esq.
(orally), Energy Management, Inc, Boston, Massachusetts, for appellant
Berwick Solar, LLC
Rikka E. Strong, Esq. (orally), and Amy B. Mills, Esq., Maine Public Utilities Commission, Augusta, for appellee Maine Public Utilities Commission
Carlisle Tuggey, Esq., and Liz Trafton, Esq. (orally), Central Maine Power
Company, Augusta, for appellee Central Maine Power Company
Public Utilities Commission docket number 2024-00185
FOR CLERK REFERENCE ONLY