C+S November 2021 Vol. 7 Issue 11

Opportunities and Threats in Utility-Scale Solar Construction By Gene F. Rash and Steven J. Stuart

It is no secret that the current presidential administration’s pursuit of 100 percent clean energy by 2050 should be a boon for the already growing solar industry. Estimates vary with some analysts predicting unprecedented growth rates for any industry. Increasingly, there will be more opportunities in both the public and private sectors, with cor - related risks to companies serving the sector. Aside from the growing number of utility-scale solar facilities, several legislative initiatives will help ensure the success of smaller new con - struction and retrofit opportunities. Each project-type has unique legal considerations. Due to each of these author’s respective involvement in a wide variety of power plant projects, this article highlights specific opportunities and threats inherent with constructing solar facilities given the investment push in solar energy. The Substantial Completion Deadline is an Expensive One to Miss For either a photovoltaic (“PV”) or concentrating solar thermal (“CST”) power project, construction work itself can proceed rapidly and often must because of the involved tax credits, investment terms and loan guarantees that are central assumptions to business cases justifying the construction of a large facility. Typically, an EPC (engineer, procure, construct) contract arrangement is utilized by project owners. Solar project investors and owners prefer the EPC arrangement in large part because the EPC contractor manages the entire project’s design and construction. Accordingly, the EPC contractor and the subcontractors carry large amounts of risk under tight timelines in exchange for the contract price. Sophisticated contractors are accustomed to managing long-lead items within the normal climate of the construction industry. But contin - gency plans for failed equipment such as PV modules, actuators, or electrical substation components must also be implemented. Early emphasis on understanding and planning for SCADA requirements rather than awaiting the end of the project to address the same is a typical best practice. Managing risk has become even more difficult with the current climate of material escalation, manpower shortages, and production delays. Sizeable liquidated damages associated with failing to meet substantial completion are a common hazard. Not surprisingly, substantial completion typically drives the project’s critical path. Substantial completion is often tied to the facility’s ability to produce power and connect to the power grid – both dates being their own important milestones carrying discrete subtasks. Like with

all contracts, the words matter. How substantial completion is mea- sured and defined is critical for the project team to understand and work towards. Often, substantial completion does not require completion of the entire project site’s civil scope of work. This can mean that important compo - nents of civil work remain after substantial completion, and, depending on the remaining civil scope and necessary modifications to the same during construction, perhaps due to changed conditions, the remaining civil work can carry substantial cost. It is much more expensive to perform civil work after array installation and initial operation of the facility. It is exceptionally more expensive where significant grading and retrofit applications, such as adding stormwater pumping systems or redirecting stormwater through other means, are required for ulti- mate operation and maintenance of the facility. Proactive, consistent collaboration, communication, and management of expectations are central tenets of a successful solar project. Each Project Site Is Unique Due in part to the sheer size of utility-scale solar facilities, local condi- tions often spawn issues. These range from the abilities, quantity and cost of skilled workers to variables such as the soil conditions at the site. The contractor’s means and methods should account for the unique site access and soil conditions onsite while maintaining productivity and installation tolerances of completed components. For example, in dual- use agrivoltaic facilities, the EPC team must be careful to not overly compact the native soil during construction because of the negative effects on planned crop growth. The spacing below and between the trackers is also critical for the dual-use function. In closed basin site locations, native infiltration rates may be the relied on means for surface water management. Sloppy earthwork operations or lack of stormwater management during construction – and many other factors – can severely impact the assumed native soil infiltration rates, increasing the risk of flooding within the solar plant site itself, particularly in closed basin sites, or downstream in open basin sites. In open basin site locations, water runoff and erosion control must be actively managed. In either type of basin, absent an easement or other legal mechanism, it is typically required by the pertinent jurisdictional authority for post-development surface water runoff to not exceed pre-



November 2021

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