Burrillville Files Motion to Dismiss Agency Report

 The Energy Facilities Siting Board has two major issues to address at its Sept. 26 hearing. (Tim Faulkner/ecoRI News)

The Energy Facilities Siting Board has two major issues to address at its Sept. 26 hearing. (Tim Faulkner/ecoRI News)

By TIM FAULKNER/ecoRI News staff

WARWICK, R.I. — The town of Burrillville is disputing a key document that favors the proposed Burrillville power plant.

On Sept. 21, Burrillville’s attorney, Michael McElroy, sent a letter to the Energy Facilities Siting Board (EFSB) asking the committee to reject the advisory opinion filed by the Public Utilities Commission (PUC), the state agency that regulates energy, communication, and transportation matters.

The three-person EFSB relies on advisory opinions to inform its decision in a project’s approval process. In the case of the proposed Clear River Energy Center, 12 state agencies and Burrillville town departments submitted reports describing the impacts the nearly 1,000-megawatt fossil-fuel facility will have on a range of environmental, economic, and public-health issues.

The PUC’s advisory opinion concluded that building the power plant will help meet future electricity needs in the region and benefit ratepayers. Burrillville, however, wants the document dismissed because it was written by one PUC member.

McElroy noted that state law requires that at least two of the three PUC commissioners participate in rendering an advisory opinion.

Former PUC commissioner Herbert DeSimone Jr. was the lone member to write the advisory opinion, in September 2016. DeSimone noted in the report that the other PUC members had to recuse themselves from writing the report. Margaret Curran, the chair of the PUC, also serves as chair of the EFSB, as required by statute, and therefore writing the advisory opinion would prejudge the project before she reviewed and voted on it with the EFSB. The third PUC commissioner, Marion Gold, recused herself because she recently served as director of the Office of Energy Resources, an agency involved in the facility’s siting process, as well as one of the 12 entities asked to furnish an advisory opinion.

In 2016, the town of Burrillville objected to having DeSimone write the PUC’s advisory report. But DeSimone went ahead and wrote it after concluding that the analysis is an opinion and not a binding decision by the PUC.

“Furthermore, the EFSB can accept, reject, or modify the advisory opinion,” DeSimone wrote in overruling Burrillville’s objection.

McElroy noted that in 2009 the PUC closed a docket because it couldn’t legally issue an advisory opinion because of a lack of a quorum.

“The EFSB should therefore reject the PUC advisory opinion in its entirety and directly hear and evaluate all evidence on the issues of need, costs and alternatives,” McElroy wrote in his letter asking the EFSB to reject the PUC’s advisory opinion.

The EFSB is scheduled to review the PUC’s advisory opinion on Oct. 16, 17, and 30.

Under the rules, the EFSB and other parties have fives days to respond to McElroy’s motion. After all parties respond, the EFSB will either issue a decision or set a date to argue the request.

One of the parties involved, the Conservation Law Foundation (CLF), said Burrillville’s motion is well grounded in law and fact.

CLF believes the application is imperiled because the developer, Chicago-based Invenergy Thermal Development, recently lost its power-purchase agreement with the operator of the New England power grid. CLF claims the EFSB may dismiss the application, or Invenergy may withdraw it when the EFSB resumes hearings on Sept. 26.