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Iwatani files amended complaint against Nel – this time naming names

Iwatani Corporation of America, the US subsidiary of one of Japan's largest industrial gas companies, has filed an amended complaint against Nel for the "disastrous" deployment of hydrogen fueling stations in California -- this time naming names of current and former executives of Nel.

In a comprehensive filing against Nel ASA, its subsidiaries Nel Hydrogen A/S, Nel Hydrogen Inc., and several top executives, Iwatani Corporation of America has laid out a series of allegations in a detailed amended complaint – this time naming names of current and former senior executives at Nel. 

Iwatani, one of Japan’s largest industrial gas companies, alleges that the defendants engaged in deceptive practices, including misrepresenting the capabilities and reliability of their hydrogen fueling stations, known as H2Stations, which were sold to Iwatani in 2019 and later deployed in California with disastrous results.

Named in the amended complaint filed last week are Jon André Løkke, former CEO of Nel ASA; Stein Ove Erdal, Senior Vice President Legal and General Counsel; Håkon Volldal, current CEO of Nel ASA; and Robert Borin, Senior Vice President of Nel’s Fueling Division. These executives are accused of playing key roles in devising and executing strategies that misled customers about the product’s readiness and reliability.

In a previous statement, Nel said it strongly rejects the allegations and will vigorously oppose the lawsuit.

Meanwhile, since the filing of the initial complaint in January, Nel has pulled support of the H2Stations due to the lawsuit, a violation of its contractual obligations, Iwatani alleges.

“We have left the sites untouched since we found out about the lawsuit. But we would like your ok to go onto Hawaiian Gardens [fueling station] to retrieve tools and equipment,” a Nel Hydrogen Refueling employee said in response to Iwatani’s request for remote access to the stations, according to the complaint.

The amended complaint details a concerted effort by Nel’s leadership to expand aggressively into the hydrogen fueling industry, capitalizing on the burgeoning interest in clean energy solutions. According to the complaint, under the guidance of these executives, Nel pursued sales of H2Stations with the knowledge that the products were not adequately tested and had significant defects.

Iwatani alleges that it was misled into purchasing the H2Stations based on false assurances regarding their performance, technological advancement, and suitability for commercial use. The complaint further claims that once operational issues arose, the defendants systematically concealed the defects and failed to perform required repairs under warranty, contributing to significant operational and financial losses for Iwatani.

The amended complaint lays out a timeline of interactions between Iwatani and Nel’s representatives, highlighting instances where critical information was allegedly withheld or misrepresented: in meetings held in 2019 in Osaka, Japan as well as in New York and San Francisco.

This includes claims that Nel insisted on exclusive service and maintenance contracts as a means to control information and avoid liability, rather than as a measure to ensure the proper functioning of the H2Stations. Additionally, the service and maintenance contracts essentially allowed Nel to field test the hydrogen fueling stations, since they had not been previously tested, according to the complaint.

“This shifted the cost of field testing the H2Stations to Plaintiff and allowed Defendants to take them into the market before they were properly tested or ready for actual commercial use by customers, and long before the software underlying the Control Systems and Software was actually created,” the complaint reads.

Below is a summary of the specific allegations against each named executive:

Jon André Løkke

  • Position and Tenure: CEO of Nel ASA from January 4, 2016, until stepping down to become a member of the Board from June 2022 through May 2023. Iwatani claims he was removed from his role amid the “unfolding disaster within the hydrogen fueling business.”
  • Allegations:
    • Key architect of Nel’s expansion into the hydrogen fueling industry.
    • Played a significant role in formulating Nel’s hydrogen fueling business strategy, including product offerings and requiring customers to contract exclusively with Nel for service and maintenance.
    • Allegedly involved in misleading sales and marketing strategies, including providing false information about the capabilities and testing performance of Nel’s hydrogen fueling stations (H2Stations).

Stein Ove Erdal

  • Position and Tenure: Senior Vice President Legal and General Counsel since May 2019.
  • Allegations:
    • Critically involved in Nel’s hydrogen fueling business strategy and the formulation of a “contractual strategy” aimed at avoiding liability by making service and maintenance contracts a prerequisite for equipment purchase.
    • Allegedly knew of the H2Stations being early R&D level products with insufficient real-world testing and played a role in concealing defects and operational failures from customers, including Iwatani.

Håkon Volldal

  • Position and Tenure: CEO of Nel ASA since July 1, 2022.
  • Allegations:
    • Assumed the role amid the ongoing issues with the hydrogen fueling business and was informed about the defects in the hydrogen fueling equipment, including H2Stations.
    • Despite awareness of the equipment’s defects and the financial implications of increased station utilization, Volldal is accused of failing to rectify the ongoing conspiracy, fraud, deceit, and other misconduct against customers like Iwatani.

Robert Borin

  • Position and Tenure: Senior Vice President of Nel ASA’s Fueling Division since April 6, 2021.
  • Allegations:
    • Involved in decision-making processes regarding the response to defects and failures of the H2Stations sold to Iwatani and others.
    • Accused of endorsing strategies to withhold information about the equipment’s defects from Iwatani, making misrepresentations about the causes of equipment failures, and not fulfilling warranty or other obligations to repair the defects.

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Analysis: Aligning US and EU incentives for clean fuels just got even harder

Tight deadlines to bring projects online before exemptions expire. No grandfather clause for hourly matching in the US. Differences in carbon intensity measurements. Outstanding questions about geographic matching requirements.

US clean fuels developers eyeing exports to Europe were already facing a complicated regulatory gauntlet to qualify for incentives on both sides of the Atlantic, but it may have just gotten harder.

The European Commission’s recent update to its “union database” (UDB) system could reshape the landscape for renewable energy quotas, potentially imposing restrictions on certain clean fuels products from the US. This development emerges from the European Union’s ambitious agenda to bolster its renewable energy sector and ensure a more sustainable and traceable supply chain for renewable gasses and fuels, including renewable natural gas (RNG) and green hydrogen.

But it could also exacerbate the emerging trend of US clean fuels developers turning to what they perceive as more favorable markets in Asia in the face of European rules that are increasingly more difficult to follow.

And comments from at least one major future importer of green hydrogen and ammonia make it clear that the onus is on the developer to comply with the regulations.

German multinational energy company E.ON has made arrangements with project developers to serve as the prospective offtaker for hydrogen or ammonia produced in North America. When asked to clarify how it plans to ensure its project partners would receive both 45V and RFNBO incentives, a spokesperson stated that it is important that they get hydrogen that complies with all existing and future laws, and added that, “We have this contractually secured. Please contact the project developer/producer directly to ask how he implements this.”

Mass balance

Under the new guidelines, which were released in January and expected to take effect later this year, only products registered within the UDB will be recognized towards the EU’s renewable energy targets. This system is designed to enhance transparency and verify the sustainability credentials of renewable fuels used within the EU. However, a critical aspect of the revised scheme is its stringent requirement for the physical traceability of gases through some kind of mass balance system, which could exclude products transported through non-European Economic Area (EEA) gas grids from qualifying for renewable quotas – at least until those gases can be traced to EU standards.

The EU’s mass balance system is a sustainability certification method that allows for mixing of sustainable and non-sustainable materials in the supply chain, provided that the quantity of sustainable product sold does not exceed the quantity produced. The EC’s updated certification scheme essentially requires “complete regulatory equivalence” for the fuels coming from non-EEA countries, according to Fred Lazell, a London-based lawyer at King & Spalding.

“In brief, the EC has proposed that there must be system-wide mass balance for the entire interconnected gas grid in such countries that are covered by the UDB,” Lazell and the King & Spalding team wrote in a client note last week. “Only then can RNG or green hydrogen product that has been transported using the gas grid be certified for the purposes of RED and, therefore, be registered in the UDB for counting towards the EU’s renewable energy quotas.”

The change applies to RNG and green hydrogen projects or facilities that use, or are planning to use, interconnected gas grids. It also applies to developers seeking to use biomethane to make ammonia or e-fuels such as e-kerosene or e-methanol.

“The whole biomethane and RNG supply chain, to the point of producing CO2 emissions that are captured, needs to comply with the EU rules for biogas,” Lazell said in an interview.

The implications of this policy adjustment are far-reaching. For certain US exporters of RNG- and green hydrogen-based products, it could mean exclusion from qualifying for renewable energy incentives in the EU until a system comes into effect that can physically trace the products from their origin to the EU.

Moreover, the policy could produce broader geopolitical and economic consequences on the harmonization of sustainability standards for the global trade of renewable energies, potentially in the form of a new trade agreement between the US and the EU. Lazell calls it “another example of the increasing internationalization of EU energy and climate regulation.”

“Europe is a very attractive destination market for these fuels, but it is in global competition,” Lazell said. “And yet the European Commission policy officers are pursuing a level of regulatory purity that sometimes, as in this scenario, when looked at from the private sector lens, defies any laws of commerciality or pragmatism.”

Aligning US and EU

US clean fuels producers seeking to “gold-plate” their projects by qualifying for incentives in both the US and the EU were already facing steep challenges.

To begin with, US green hydrogen project developers are contending with a tight timeframe to bring their projects online before the European Union’s rules against state aid for renewables kick in on January 1, 2028. Under the EU rules, projects that come online before that date are exempt from the provision –which disallows RFNBO status for projects tied to renewables that receive state aid, including tax credits – until 2038.

US RNG projects qualify for investment tax credits under section 48 for projects that begin construction before 2025, and can also receive section 45Q credits on the CO2 captured in the biogas refinement process.

The timelines have set off a rush of projects seeking to get built before the provision takes effect, causing further tightness in the supply chain and dynamics that favor EPC providers and original equipment manufacturers.

Meanwhile, most of the attention of US renewable energy players is on the lobbying effort for a “grandfather” clause in 45V rules for clean hydrogen, which would allow early-mover projects to qualify for US tax credits without having to adhere to hourly time-matching requirements. This grandfather clause was included in the EU rules, as it was viewed as a necessary provision to protect first movers, especially those that have already spent development capital.

Furthermore, now that guidance for 45V tax credits has been issued by the IRS, experts have pointed out two additional policy differences that augment compliance challenges for US clean hydrogen projects.

The first is US section 45V’s “well-to-gate” approach for calculating carbon emissions for clean hydrogen production. This method focuses on the emissions from the production process up to the point of exiting the production gate, excluding downstream emissions related to transportation or further processing of the hydrogen product. The carbon intensity threshold set by the proposed 45V regulations demands that for a facility to qualify for the full $3/kg credit, the hydrogen produced must not exceed 0.45kg CO2e per kg of hydrogen, assuming certain labor requirements are met.

Conversely, the EU’s RFNBO standards adopt a “well-to-wheel” or “well-to-wake” approach, encompassing the entire lifecycle emissions of hydrogen, including production, transportation, and any downstream processing. This broader scope aims to ensure that the hydrogen’s entire value chain contributes minimally to greenhouse gas emissions, a crucial factor for projects in the US considering export to the EU. The RFNBO rules require a 70% reduction in carbon emissions against fossil fuels, translating to approximately 3.38kg CO2e per kg of hydrogen at the point of production. However, to qualify as RFNBO, the actual carbon intensity will need to be significantly lower when considering the full supply chain emissions.

“At present, only the EU counts full-life-cycle emissions from converting, compressing, transporting and reconverting hydrogen,” Wood Mackenzie analysts wrote in a report last week. “This creates additional challenges for hydrogen project developers seeking to export hydrogen to the bloc.” Further, those seeking to export hydrogen in the form of ammonia “must manage emissions from ammonia synthesis and transportation to ensure they do not breach the EU’s threshold, while also being subject to Carbon Border Adjustment Mechanism (CBAM) rules.”

Another pivotal difference between the two regulatory schemes lies in the geographical requirements linked to the energy supply for hydrogen production. In the US, the 45V guidance identifies regions based on relevant balancing authority areas. This geographic correlation aims to ensure that the energy used in hydrogen production is traceable and meets the standards for clean or renewable energy within a defined area.

Meanwhile, the EU’s concept of “bidding zones” for RFNBO production could introduce a unique challenge for US producers aiming to align with both standards. A bidding zone is a market mechanism designed to manage congestion in the electricity grid and ensure efficient electricity trading within the EU. 

For a hydrogen production facility to qualify under RFNBO standards, both the renewable power generation and hydrogen production facilities must be located within the same bidding zone. But it’s not clear how bidding zones will be defined in the US, opening the possibility that the area for US projects will be even more circumscribed than the balancing authority regions, due to zonal and nodal power pricing structures in US electricity markets.

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Equatic releases whitepaper on carbon dioxide removal

A fledgling company with a relationship with Boeing is marketing a process for seawater electrolysis to capture and store CO2 while producing hydrogen.

Carbon removal company Equatic has developed a process that relies on seawater electrolysis to capture and store CO2 while producing clean hydrogen, according to a news release.

A white paper written with consultation from EcoEngineers outlines Equatic’s approach to quantifying and verifying the carbon removal process.

Equatic operates two pilots in Los Angeles and Singapore. The company sells carbon removal credits and recently announced a pre-purchase option agreement with Boeing.

Under that agreement, Equatic will remove 62,000 metric tons of carbon dioxide and will deliver 2,100 metric tons of carbon-negative hydrogen to Boeing.

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Ontario Teachers’ Pension Plan acquires RNG firm Sevana Bioenergy

Ontario Teachers has acquired a majority stake in the RNG developer and made a capital commitment of $250m.

Ontario Teachers’ Pension Plan Board has entered into a strategic partnership with Sevana Bioenergy that will see it acquire a majority stake in the business and make a capital commitment of $250m to develop renewable natural gas (RNG) projects across North America, according to a press release.

Sevana is a pioneer in the RNG industry, developing and upgrading large-scale biogas projects to increase the production and use of RNG through the reduction of organic waste.  Sevana has successfully executed dairy and organics projects which include more than 20 state-of-the-art digester tanks across agricultural regions such as Oregon, Idaho and South Dakota since its founding by CEO John McKinney in 2017.

Sevana led these innovative projects to deploy more than $350m under construction and worked closely with farmers to form long-term beneficial partnerships as part of its strategy to own and operate reliable digester facilities. Sevana’s team of in-house experts has over 150 years of combined experience designing, operating, and maximizing performance of anaerobic digesters with projects worldwide.

“We are pleased to partner with John and the Sevana team to help accelerate their efforts to develop advanced digester facilities that produce RNG and electricity for transportation fuel, EV charging and other forms of energy,” said Zvi Orvitz, senior managing director, Sustainability & Energy Transition, Private Capital at Ontario Teachers’ Pension Plan. “Sevana has a demonstrated track record of success in the implementation of cutting edge RNG facilities, and we are excited by the opportunity to further scale the company as it enters its next chapter of growth.”

RNG is an important tool in the decarbonization of transportation, heating and industrial energy consumption and Sevana is a market leader entering new markets with RNG related products. Sevana’s projects capture fugitive methane emissions from farm animal and other organic waste streams that contribute to climate change and use this waste to produce low-carbon renewable power and RNG to replace fossil fuel-based energy sources. The company boasts a deep pipeline of future development opportunities and is also actively considering acquisition opportunities across the U.S.

“We welcome Ontario Teachers’ and look forward to our partnership as we work toward our objective of providing decarbonization solutions from RNG and continuing to enter new markets with related products” said Steve Compton, president at Sevana Bioenergy. “This commitment accelerates development of our industry leading projects that contribute direct economic and sustainable benefits to local communities and reduce greenhouse gases.”

Sevana is the latest investment by Ontario Teachers’ Pension Plan in the Sustainability and Energy Transition sector and will serve to advance the organization’s commitment to achieve net-zero greenhouse gas emissions by 2050.

Kirkland & Ellis LLP served as legal counsel to Ontario Teachers’ on the transaction. Fredrickson and Byron served as legal counsel to Sevana.

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exclusive

US hydrogen and LNG developer raising capital

A Texas-based project developer is conducting a development capital raise for a flagship LNG and green hydrogen project in the Northeast.

New Energy Development Company, a Katy, Texas-based developer with offices in Boston, Texas, is raising between $5m and $8m for an LNG liquefaction, storage and re-gasification facility with additional green hydrogen production and storage, Partner Scott Shields said in an interview.

The company is not using a financial advisor, Shields said, noting that a larger second round capital raise will likely start near the beginning of 2024.

New Energy has secured a brownfield site for a peak-shaving LNG facility in New England with 2 billion cubic feet of storage capacity and 50 MW of solar pv, Shields said. Also planned is an expandable 40 MW PEM electrolyzer line.

He declined to name the state in which the project is located, adding that the company is trying to put a strong support system and marketing plan in place before the location is made public.

The proceeds of the capital raise will go in part to hiring local lawyers and engineering and design work (pre-FEED and FEED), through to FID, Shields said. The project will be built in two phases, Phase 1 being the LNG component and Phase 2 focusing on green hydrogen.

The LNG facility will be the offtaker for the hydrogen, which will run the plant when the solar is insufficient. Through an open season process New Energy has identified five investment grade offtakers for the LNG.

Ramping capex

“We’ve been self-funding up until now,” Shields said of New Energy, which has also put capital and development resources into half-a-dozen other projects around the country.

It’s time for a ramp up in capital expenditures and New Energy is in discussions with strategic and private equity providers, Shields said, noting that the company would prefer the former. Discussions include options to fund just the flagship project, as well as platform equity.

Shields noted that he has investment banking experience and that New Energy Managing Partner Alexander “Hap” Ellis serves as chairman of Old Westbury Funds and the George and Barbara Bush Foundation.

New Energy has partnered with McDermott International to develop patented GreenER hydrogen facilities, a modular, expandable hydrogen facility that can produce 24,000 kg per day (2,760 MMBtu) of renewable hydrogen. The companies in 2021 completed engineering deliverables for multiple designs which are marketed as ideal for grid-scale blending with natural gas pipelines, blending for existing or new power generating facilities and storage injection into salt caverns and above ground storage tanks.

The company has also combined GreenER LNG and hydrogen production and storage plants into an integrated energy hub, capable of producing an additional 200,000 MMBtu of LNG.

New Energy recently hired Chico DaFonte, formerly a vice president at Liberty Utilities, a subsidiary of Algonquin Power, as executive vice president working on LNG and hydrogen projects.

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AGDC seeks $150m in development capital for Alaska LNG project

The Alaska corporation is raising capital to reach FID on a $44bn LNG project that includes the construction of a natural gas pipeline and carbon capture infrastructure.

The Alaska Gasline Development Corporation (AGDC) is actively working to raise $150m in development capital for the Alaska LNG project, with Goldman Sachs providing advisory services.

This capital will cover third-party Front End Engineering Design (FEED) costs, project management, legal and commercial expenses, and overhead for 8 Star Alaska, the entity overseeing the project. Investors will receive a majority interest in both 8 Star Alaska and Alaska LNG as part of the fundraising efforts, according to a presentation​​.

AGDC, a public corporation of the state of Alaska, is hoping to finalize a deal for development capital in the next 12 months, but has not set a definitive timeline for the fundraise, AGDC’s Tim Fitzpatrick said.

The total cost of the project is estimated at $44bn, according to Fitzpatrick, and consists of three principal infrastructural components:

  1. Arctic Carbon Capture (ACC) Plant: Located in Prudhoe Bay on Alaska’s North Slope, this plant is designed to remove carbon dioxide and hydrogen sulfide before natural gas enters the pipeline.
  2. Natural Gas Pipeline: This 807-mile pipeline, with a 42-inch diameter, connects the ACC plant to the LNG facility and is capable of transporting 3.7 billion ft³/d of natural gas. It includes multiple offtake points for in-state residential, commercial, and industrial use.
  3. Alaska LNG Facility: Situated at tidewater in Nikiski, Alaska, this facility features three liquefaction trains, two loading berths, two 240,000 m³ LNG tanks, and a jetty. It is designed to produce 20 million tons per year of LNG​​.

Strategies to raise the necessary funds include collaborating with established LNG developers, strategic and financial investors, and possibly forming a consortium, according to the presentation. All project equity will flow through 8 Star Alaska, keeping the legal and commercial structure of the project consistent​​.

As of last year, the corporation was negotiating sales agreements for a significant portion of the Alaska LNG project’s capacity. Discussions include contracts covering 8 million tonnes per annum (MTPA) at fixed prices and market-linked charges, and equity offtake talks for up to 12 MTPA. Additionally, three traditional Asian utility customers have shown interest in a minimum of 3 MTPA, potentially increasing to 5 MTPA.

These negotiations involve traditional Asian utility buyers, LNG traders, and oil and gas companies, all credit-worthy and large-scale market participants, the company said. Some buyers are contemplating equity offtake, investing at the Final Investment Decision (FID) in exchange for LNG supplied at cost​​.

A key component of the project’s advancement is securing gas supply agreement terms, identified as a prerequisite by multiple investors. AGDC has held meetings with executives from two major producers to emphasize the need for Gas Supply Precedent Agreements to attract further investment. These discussions, highlighting the project’s importance to Alaska, were joined by key figures including the DOR Commissioner Crum, the DNR Commissioner Boyle, and representatives from Goldman Sachs​​.

The Japan Energy Summit, sponsored by AGDC, focused on the need for new LNG capacity in Asia. Japan’s Ministry of Economy Trade & Industry (METI) expressed strong support for new LNG investments and offtake, emphasizing the replacement of coal with gas in developing Asian markets​​.

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Exclusive: Liquid hydrogen at room temp: Tech firm raising money to scale

A provider of liquid organic hydrogen carrier technology is finishing a second seed round with designs on a Series A next year. The technology allows hydrogen to be transported as a liquid at room temperature.

Ayrton Energy, the Calgary-based provider of liquid organic hydrogen carrier storage technology, is preparing to launching a second seed round and plans a $30m Series A next year, CEO Natasha Kostenuk told ReSource.

Ayrton, with 10 employees, allows hydrogen to be transported as a liquid at room temperature, Kostenuk said. The liquid can also be transported in existing infrastructure while mitigating pipeline corrosion.

The company’s target customers are hydrogen producers, utilities and hub-and-spoke logistical servicers.

To date Ayrton has raised $5m from venture capital and a similar amount will come from the next seed round, Kostenuk said. A 30 kg per day pilot project with a gas utility in Canada is underway and Ayrton will look to 10x that next year, she said, with eyes on 3 metric tonnes per day commercialization.

“It scales like electrolyzers,” she said of the technology. “We can get very large, very easily.”

Ayrton is now engaging investors and potential advisors, Kostenuk said. “It would be good to engage with us now.”

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