DEM Wildlife Expert Testifies Proposed Power Plant Presents 'Unacceptable Harm'

Jason Osenkowski, right, of the Rhode Island Department of Environmental Management said the proposed Clear River Energy Center would negatively impact the environment. DEM director Janet Coit is one of three Energy Facility Siting Board members. (Tim Faulkner/ecoRI News)

Jason Osenkowski, right, of the Rhode Island Department of Environmental Management said the proposed Clear River Energy Center would negatively impact the environment. DEM director Janet Coit is one of three Energy Facility Siting Board members. (Tim Faulkner/ecoRI News)

Video and text by TIM FAULKNER/ecoRI News staff

WARWICK, R.I. — The Energy Facility Siting Board (EFSB) may finally have justification for denying the proposed Burrillville power plant.

The three-member council has a trio of questions it must weigh as it evaluates the application for the Clear River Energy Center: Is the power plant needed to meet the energy needs of the state or region? Is it cost justified? Does It cause unacceptable harm to the environment?

Jason Osenkowski, deputy chief of wildlife at the Rhode Island Department of Environmental Management (DEM), recently testified regarding the third question.

At the March 26 hearing, Osenkowski was asked by EFSB chairwoman Margaret Curran if he would characterize the fossil-fuel power plant as causing unacceptable harm to the environment.

After a long pause, Osenkowski replied, “I would view it as unacceptable harm because I believe that avoidance is an option. … And the detriment to the continuity of that habitat and the species that rely on that continuity to me is avoidable and as a result I think it’s unacceptable.”

Curran also asked about another potentially threatening issue for the $1 billion project: the assertion made by Osenkowski and ecologist Anthony Zemba last week that Invenergy’s wildlife survey of the 67-acre site is flawed. Osenkowski said that although the 10-week survey used by Invenergy is standard practice, the tracking and trapping methods used to identify wildlife would need to be in place for months and even years to collect complete data.

“It would be my recommendation that it would be multi-year,” Osenkowski said. “If you are looking to be comprehensive then you would need to have a multi-year survey.”

EFSB member Janet Coit, Osenkowski’s boss as director of DEM, noted that there are no regulations that require multi-year habitat studies.

“Unfortunately, that is correct,” Osenkowski said.

Osenkowski noted that budget cuts at DEM ended programs that collect state wildlife data. Information from those programs would inform wildlife surveys, he said. He further acknowledged that there are no regulations to halt a development if species are found that are considered threatened or endangered by the state. Only the presence of federally designated or threatened species jeopardize an application.

“I would change that in a heartbeat,” Osenkowski said.

Elizabeth Noonan, an attorney for the developer, Chicago-based Invenergy, noted that Osenkowski’s conclusion that the Clear River Energy Center poses unacceptable harm isn’t in DEM’s advisory opinion nor in its supplemental report. Osenkowski responded by remarking that both reports weren’t directly addressing the issue of unacceptable harm but the more narrow questions related to permits.

In its first report, DEM concluded that the agency needed more biodiversity data from the site and construction plans from Invenergy. DEM stated the site is worth preserving because it’s adjacent to state conservation land and keeping it undeveloped would reduce fragmentation of the larger forest ecosystem.

DEM is reviewing permits for air pollution and wetland destruction. DEM’s advisory opinion concluded that a failure to receive the permits “represents unacceptable harm to the environment.”

The issue, however, is complicated by DEM’s supplemental report that states if the permits are issued “it is a formal declaration that the proposed facility has met the standards and criteria for acceptable harm to the environment as established in state and federal laws and regulations.”

At the March 21 EFSB hearing, Burrillville’s attorney, Michael McElroy, sought to make a distinction between the environmental impact related to the permits and impacts caused by the project overall.

During questioning of Terrence Gray, DEM’s associate director, McElroy got clarity on the separate perspectives of unacceptable harm, when Gray confirmed that the project’s impact on wildlife only applies to the scope of the permits not to the impact of the entire project.

The EFSB will not likely act on Osenkowski’s statement soon. The final hearings continue March 28 and are expected to run through April. After that, all parties will write and submit closing statements. The board will then discuss the application in open meeting and render a decision within 60 days. Additional information on the procedural process is online.