Attack on Invenergy's Credibility Resumes This Week

Video and text TIM FAULKNER/ecoRI News staff

Jerry Elmer, left, delivers documents to John Inland during the March 21 hearing of the Energy Facilities Siting Board. (Tim Faulkner/ecoRI News)

Jerry Elmer, left, delivers documents to John Inland during the March 21 hearing of the Energy Facilities Siting Board. (Tim Faulkner/ecoRI News)

WARWICK, R.I. — Jerry Elmer has made no secret of his intent to diminish the credibility of the developer of the proposed Burrillville power plant and its head of business development, John Niland. 

Last week, Elmer, staff attorney for the Conservation Law Foundation, alerted the media and opponents of the fossil-fuel project that Niland could be questioned sooner than expected during hearings before the Energy Facility Siting Board (EFSB). In an e-mail, Elmer wrote that he would show the EFSB that “Invenergy cannot be trusted to build the plant because Invenergy has consistently lied to state and federal regulators and to the ISO (New England) throughout the long years of this case.”

Sure enough, during the March 21 EFSB afternoon hearing session, Niland took the stand and Elmer zeroed in on inconsistencies in Niland’s testimony. The first was a Niland claim during a March 31, 2016 public hearing before an overflow crowd in the Burrillville High School auditorium. Niland said at that hearing that ratepayers would save $280 million. That number was in doubt since a month earlier, when Invenergy lost out on securing a lucrative power-purchase agreement for one of its two natural-gas/diesel-power generators.

Despite knowing the savings claim was inaccurate, Niland said he offered the questionable savings at the public hearing because Invenergy’s energy expert, PA Consulting Group, was still tabulating the new savings estimates.

Invenergy’s top legal counsel, Michael Blazer, called Elmer’s questioning grandstanding and an effort to impeach Niland. Blazer was granted a request that Elmer’s line of questioning be postponed until the following week, when a transcript of the March 31, 2016 meeting at Burrillville High School could be circulated to everyone.

Elmer then shifted his questioning to a memorandum Invenergy sent to the Federal Energy Regulatory Commission (FERC) asking the agency to deny the request by ISO New England to cancel Invenergy’s power-purchase agreement. Niland admitted that he didn’t know it was the first time ISO New England had canceled an energy contract, called a capacity supply obligation, even though it was discussed at a previous EFSB meeting. Elmer noted that Invenergy wrote in the Nov. 9, 2018 filing that the only item holding up the project was EFSB approval. Elmer said the letter failed to mention two permits pending from the Rhode Island Department of Environmental Management, one from the Army Corps of Engineers, and approval of an interconnection plan by the state Public Utilities Commission.

Blazer called the letter irrelevant to the hearings, and again inferred that Elmer was grandstanding.

“I know what he’s trying to do, we all do,” Blazer said to the three EFSB members.

Blazer offered to let Niland testify about the letter, but with stipulations, or conditions on what he can speak to relating to last year’s document.

Elmer rejected the offer, saying a review of the memorandum is needed to assess the credibility of witnesses “so that when it comes time for the EFSB to decide against the conflicting evidence that has gone in prefile testimony the board will be able to do that. That’s why we have live examination of every witness.”

Blazer was again granted a request to delay the questioning until he and his team could review the FERC filing. Thus, much of Elmer’s questioning of Invenergy’s credibility was postponed until this week.

Nature study criticized
At the March 21 hearing, the town of Burrillville’s biodiversity expert, Anthony Zemba, did his best to discredit Invenergy’s habitat study of the woodland area proposed for the nearly 1,000-megawatt power plant.

Zemba, a certified ecologist and soil scientist, criticized reports by ESS Group for using inadequate testing practices to track wildlife on the 67-acre site. Zemba noted that the survey should have lasted for a full year or at least several more seasons to account for threatened reptiles, birds, and insects. He said the assessment may have missed species needing conservation such as cottontail rabbits, butterflies, moths, snakes, and bats.

Zemba called the woodland and wetland area “a high-value, high-vulnerability habitat” and said the project isn’t consistent with the state’s conservation priorities.

“I’ve rarely come across a site that has this many species of concern onsite,” he said. “This is truly an amazing site in my opinion.”

Building a fossil-fuel power plant is “probably one of the worst uses I could think of,” Zemba said. “That they would obliterate this habitat is abominable.”

“This is just one more example of Invenergy’s shortcuts,” Burrillville town manager Michael Wood said after the hearing. “Their inadequate environmental study means there isn’t a full picture to draw a conclusion as to impact. This is a pristine site, and Rhode Island has very few of these sites left.”

In cross-examination, Invenergy’s attorney, Elizabeth Noonan, noted that Zemba doesn’t have wetlands certification. She said there is no stipulation that the assessment had to be done over several years or seasons and that Zemba made no prior recommendation to protect the forest.

The hearing is scheduled to resume March 26 with questioning of Jay Osenkowski, DEM’s deputy chief of wildlife. Niland’s cross-examination is expected to begin after Osenkowski is questioned. The hearing will be held at the PUC office, 89 Jefferson Blvd. in Warwick, starting at 10 a.m.