New Phase for Proposed Fossil-Fuel Power Plant in Burrilliville After Motions to Dismiss, Delay Denied

Burrillville attorney Michael McElroy, left, and Max Greene, center, and Jerry Elmer of the Conservation Law Foundation had their motions denied to dismiss and delay the Invenergy application. (Tim Faulkner/ecoRI News photos)

Burrillville attorney Michael McElroy, left, and Max Greene, center, and Jerry Elmer of the Conservation Law Foundation had their motions denied to dismiss and delay the Invenergy application. (Tim Faulkner/ecoRI News photos)

Video and text by TIM FAULKNER/ecoRI News staff

WARWICK, R.I. — If everything had gone according to plan, the fate of the proposed Burrillville power plant would have been decided by now. Instead, a new line of analysis is underway and a final decision may not be announced until late fall.

On Feb. 16, the state Energy Facilities Siting Board (EFSB) turned down two requests to dismiss or delay the proposed fossil-fuel power plant. The decisions, however, didn't put the $1 billion project any closer to approval. Instead, the three-member board said the project must undergo a new line of scrutiny with hearings and new reports on the impact of the project.

At the heart of the motions to dismiss or delay, filed by the town of Burrillville and the Conservation Law Foundation (CLF), is the abrupt switch by the Chicago-based developer to build a new and more costly water system for the 850- to 1,000-megawatt power plant.

Invenergy Thermal Development LLC chose the new water system because it failed to find a local water supply to cool the energy facility’s two 450-megawatt turbines. Instead, the company signed a controversial agreement to buy water from the town of Johnston. The deal means the Clear River Energy Center will have water, but a much lower volume than it would have received from local wells. Thus, the water must be trucked in to a more-expensive, lower-volume cooling system.

By switching its water-system plan, Invenergy created an opening for the motions to dismiss the proposed natural-gas/diesel project. CLF argued that the months-long delay to find water pushed the project too far beyond its permitting deadline. CLF and the town of Burrillville also argued that the new water system was a major change to the proposal, thereby invalidating most of analysis already completed on the project's impacts.

The EFSB rejected both arguments. It did, however, agreed that the new water-system plan was a significant change and therefore required new hearings, and most likely new impact statements from many of the 12 state agencies and town entities that have already submitted reports. Getting new reports can take up to six months and likely require a new round of public hearings. Thus, extending the date for a decision until November.

The EFSB's recent decisions sends mixed signals. EFSB chairwoman Margaret Curran said CLF’s motion to dismiss offered grounds to reject Invenergy's application but that the decision would likely be overturned on appeal.

EFSB member Janet Coit said she agreed with CLF that the water plan creates many gaps in the application and thereby warranted new analysis. But she noted that the charge of the board leaves little room to include public opinion in its final decision.

“Our role here isn’t to decide whether or not we are for or against this plant,” Coit said. “It’s to decide how the facts and the evidence and the arguments in front of us should be determined given the statute and the regulations. That’s our goal. Advocates and public input are considered but the driver for us is how we interpret how the law and the regulations apply to what is in front of us.”

Jerry Elmer, senior attorney for CLF, said he was disappointed that the motion to dismiss was denied. But, he said, the rulings offer hope for critics of the project.

“The fact that the (EFSB) is looking at a new schedule is good news for opponents,” Elmer said, “because the more scrutiny that’s given to the new water plan, the less chance that a permit will be granted for the construction of the new power plant.”

That process is scheduled to begin at a March 6 EFSB meeting.