DNREC appeal re Bloom Energy, request for stay

JOHN A. NICHOLS
406 Meadow Lane
Middletown, DE 19709
(302) 378-0683

June 24, 2019

Environmental Appeals Board
89 Kings Highway
Dover, DE 19901

ATTENTION: Administrative Assistant to the Environmental Appeals Board

SUBJECT: EAB 2019-04

As stated in the subject appeal, the undersigned has requested the Board’s review of Secretary’s Order No. 2019-A-0019, which was issued (and by its terms became effective) on April 22, 2019. A public hearing on the appeal is scheduled for September 24, 2019, and we are currently assembling the information to be reviewed at the pre-hearing conference.

The Secretary’s Order granted a construction permit to allow Diamond State Generating Partners, LLC/ Bloom Energy Corporation (BEC) to construct (1) a 2.6 megawatt fuel cell electric generation plant consisting of specified BEC fuel cells at its Brookside facility, and (2) a 24.9 megawatt fuel cell electric generation plant consisting of specified BEC fuel cells at its Red Lion facility.

If our appeal was granted, in whole or part, the Secretary’s Order would presumably be reopened for further consideration. However, it appears that BEC is taking steps to proceed with the proposed construction projects without awaiting the results of, or even disclosing to the investing public the existence of, the pending appeal of the Secretary’s Order. Moreover, the contracts that have been entered materially vary from the terms stated in the Secretary’s order, including the sale of an ownership interest in the project to a party who was not previously named and an apparent intent to proceed with only part of the project. BEC Form 8-K report, Securities and Exchange Commission,
6/14/19.

Under the circumstances, the undersigned hereby requests that the Secretary stay his order pending the outcome of the appeal. This would serve to ensure that BEC cannot vitiate the subject appeal by proceeding with construction and presenting the Board with a fait accompli on the date of the hearing. The Secretary is expressly authorized to grant a stay by Del. Code, Title 7, Section 6008(f).

“No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the Secretary or the Court of Chancery may stay the action pending disposition of the appeal.”

In the alternative, assurances are requested that no actions taken by BEC or related parties between April 22, 2019 and September 24, 2019 will be given any positive weight (from the appellee’s perspective) in the Board’s decision on the subject appeal.

Respectfully,

John A. Nichols

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