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Invenergy hearings resume at EFSB, CLF warns against delays



The hearings on Invenergy‘s proposed $1 billion fracked gas and diesel oil burning power plant are resuming tomorrow before the Energy Facilities Siting Board (EFSB) at 10am. These hearings have been held on and off for nearly a year, but now the ending seems tantalizingly close. The case pits the six or seven lawyers currently working for Invenergy, the lawyer for the Building Trades and the lawyer representing the State of Rhode Island (via the Rhode Island Office of Energy Resources) against a single lawyer representing the Town of Burrillville and a single lawyer representing the Conservation Law Foundation (CLF).

There are two motions pending before the EFSB. CLF’s Motion to have the EFSB take administrative notice of ISO New England’s press release reporting on the results of FCA-13, held in February 2019; and Invenergy’s motion to strike the testimony of CLF’s expert witness Robert Fagan. The EFSB may hear these matters any time, possibly as early as tomorrow.

One interesting EFSB submission is a letter from CLF Senior Attorney Jerry Elmer. In the letter, Elmer raises concerns about the status of Invenergy’s application pertaining to recent ISO decisions and events and to the status of permit applications Invenergy has yet to complete before the construction of the proposed power plant can begin.

The recent events and decisions at the ISO are:

  • The unprecedented termination of Invenergy’s entire CSO on September 20, 2018;
  • The disqualification of Invenergy’s second turbine from FCA-13 (disqualification on September 28, 2018; FCA-13 conducted on February 4, 2019);
  • ISO running FCA-13 with no participation whatever by Invenergy;
  • The auction clearing significant surplus capacity beyond the ISO’s own Net Installed Capacity Requirement, without Invenergy;
  • and at a very low clearing price, revealing no need for Invenergy’s proposed power plant

“Because of this confluence of facts adverse to Invenergy,” writes Elmer, “CLF fears that Invenergy may now be seeking to stall or delay the EFSB’s decision until some vague future time when Invenergy hopes for a more propitious energy market outlook. CLF is persuaded that market trends are in the opposite direction, but, of course, Invenergy can always hope.”

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Elmer produces facts in support of his theory that Invenergy is already “slow walking” the application process.

  • With regard to the required Major Source Permit under the Clean Air Act, Invenergy has not successfully pushed DEM even to issue a draft permit yet.
  • With regard to the Rhode Island Department of Environmental Management(DEM) Wetlands Alteration Permit application, DEM does not even consider Invenergy’s application to be complete.
  • With regard to the required Clean Water Act permit to be issued by the Army Corps of Engineers (ACOE), CLF has learned that the ACOE also does not even consider Invenergy’s permit to be complete.

Elmer notes that no permits can be issued without completed applications. “CLF is deeply concerned that in the fourth year of this Docket – and at least five years since Invenergy started working on this project – required permit applications are not even deemed to be complete by the relevant permitting agencies,” writes Elmer.

Elmer requested that the EFSB grant CLF two requests:

  • First, CLF requests that the EFSB allow parties no more than six weeks for post-hearing memoranda.
  • Second, CLF requests that the EFSB reserve the required dates now for the Open Meetings at which the EFSB can discuss the merits of the case and rule on the pending application.

These two requests would keep Invenergy’s pending application before the EFSB on track to be decided this year. You can read Elmer’s entire letter here.

The hearings on Invenergy‘s proposed power plant resume at the EFSB tomorrow, March 12, at 10am, 89 Jefferson Blvd, Warwick, RI 02888. The hearings will continue, as needed, on the following dates: March 13, 20, 21, 26 and 28 and April 2, 11, 12 and 23. These hearing started on April 11, 2018. Invenergy has been working on this power plant for five years and engaging with the public process to get it built for four years now.

Jerry Elmer was kind enough to explain the process at the EFSB after the Final Hearing is concluded:

“First, the parties will be given time to prepare and file Post-Hearing Memoranda with the EFSB. These will be instead of closing arguments. This may take four to six weeks. After that, the EFSB will hold several “Open Meetings” at which they will discuss the case. At the Open Meetings, there are no witnesses, and the lawyers don’t talk. The EFSB members discuss the case amongst themselves. As the name implies, these sessions are open to the public and the press. Then the EFSB will vote on whether to grant or deny a building permit to Invenergy. As you know, at this stage of the proceeding, I am cautiously optimistic that the EFSB will deny the permit. After that vote is taken, the EFSB staff still needs to produce a written Order reflecting the decision. This can easily take a month or two, since the Order must address all of the issues in the case: need, ratepayer impacts, environmental impacts, traffic issues, noise, light pollution, and so forth. It is the Order – not the EFSB vote – that triggers to appeal period for the losing side. The foregoing schedule suggests that briefs may be due in late May, Open Meetings may occur in June, and the final Order may come out between July 4 and Labor Day – but note that all of these times are approximate!

“The losing side has a right to appeal, and that appeal goes directly to the Rhode Island Supreme Court. As I have said before, the legal standard applied by the Court is very deferential to the EFSB, and appeals of this kind are rarely successful.”

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Steve Ahlquist is a frontline reporter in Rhode Island. He has covered human rights, social justice, progressive politics and environmental news for half a decade. Uprise RI is his new project, and he's doing all he can to make it essential reading.