Invenergy‘s application to the Energy Facilities Siting Board is incomplete and should be dismissed “with prejudice,” according to lawyers for the town of Burrillville, where the $1 billion fracked gas and diesel oil burning plant would be located if granted permission from the EFSB. Burrillville attorneys Michael McElroy and William Dimitri have submitted a response to Invenergy’s Objection to Burrillville’s Motion to Dismiss to the Energy Facilities Siting Board that, if granted, would prevent Invenergy from building the proposed power plant. The repsonse “respectfully requests that the EFSB dismiss this licensing proceeding with prejudice for the failure of Invenergy to provide complete plans as to all structures in its prelicensing application.”
The argument is essentially:
- the jurisdiction of the EFSB is expressly based on the mandatory filing by Invenergy of “complete plans as to all structures … associated with the proposed facility” in its prelicensing application in accordance with R.I.G.L. S. 42-98-8(a)(2) and EFSB Rule 1,6(b)(8)
- Invenergy has failed to provide complete plans as to all structures associated with the proposed facility;
- the complete plans “shall be the basis for determining jurisdiction.” R.I.G.L. S. 42-98 8(a)(2);
- jurisdictional requirements cannot be waived by the EFSB or the parties; and
- under R.I.G.L. S. 42-98-16(a), failure to comply with an EFSB rule, regulation, requirement or procedure for licensing constitutes grounds for dismissal.
The response notes that Invenergy has “failed to provide a plan for fifty-four of the fifty-five proposed structures. Invenergy’s application is therefore incomplete as a matter of law, has been for almost two years, and accordingly should be dismissed with prejudice.”
Invenergy has held that a 1988 EFSB ruling in the case of the Ocean State Power Plant (OSP), also located in Burrillville, protects the company from the burden of issuing complete plans. The EFSB then ruled that “final” plans should be submitted after a license has been granted. Burrillville’s lawyers maintain that the requirement for “complete” plans, to be presented before approval, and for “final” plans, to presented after approval, are different things.
According to the response, the EFSB ruled then that “if an EFSB license is granted, such final drawings would then be developed, but if an EFSB license is denied ‘the applicant need not be burdened with the costs of detailed final design.’ For this reason, the EFSB suggested creating a ‘post licensure proceeding wherein building permits could be issued, allowing the applicant to have a ‘prompt review of its final building design without having to commit to final design before a decision regarding the overall board license.’”
The response concludes saying, “The holding by the EFSB in the OSP docket is entirely consistent with [Burrillville]’s Motion to Dismiss Invenergy’s Application for failure to provide complete plans as part of the prelicensing application. Complete plans must be submitted with a prelicensing application. Final plans must be submitted during post-licensing proceedings.
“Therefore, dismissal is proper here.”
Jerry Elmer, senior attorney for Conservation Law Foundation (CLF) wrote, “Burrillville’s Reply Memorandum is a truly fine piece of legal writing. It is short, and directly to the point. The memorandum makes crystal clear that Invenergy’s application does not meet the statutory requirements of the Energy Facility Siting Act and should be dismissed for that reason. (Note that I am, not saying that the EFSB will dismiss the Invenergy docket. I am saying that, as a legal matter, the EFSB should dismiss the application, and that not doing so in these circumstances provides a very good legal basis for an appeal later on if the EFSB grants a permit to Invenergy.)”
Burrillville filed a much longer document, its Motion to Dismiss, on July 13:
http://www.ripuc.org/efsb/EFSB2/SB2015_06_M_Burr_dismiss.pdf
About a week later, CLF filed a four-sentence document in which we agreed that Burrillville was right—the docket needs to be dismissed:
http://www.ripuc.org/efsb/EFSB2/SB2015_06_M_Burr_dismiss_CLF.pdf
On July 28, Invenergy filed a very long and ram bling “Objection” to Burrillville’s Motion to Dismiss:
http://www.ripuc.org/efsb/EFSB2/SB2015_06_M_Burr_dismiss_INV.pdf
Only one power plant proposal has been rejected in the EFSB’s history. That was the InDeck power plant proposed for Slatersville in North Smithfield. The action occurred in 2001. The reason stated by the EFSB was the company’s refusal to provide information about the sales agreement it had made with the site’s landowner, a developer wishing to make an industrial park adjacent to the power plant site. Here is the lead from the Providence Journal’s story of the rejection on August 1, 2001:
“A three-member state board voted unanimously yesterday to pull the plug on a proposed power plant near the town’s Slatersville section, citing the developer’s refusal to provide information about a possible industrial park next to the facility.”
The explanation of the matter was stated in the Projo article as follows:
“When Indeck first applied for a permit in April 1999, the company touted an adjacent industrial park, to be built by Tuspani Water Co., as one of the benefits of the project.
“Tuspani owns 88 acres south of the Slatersville reservoirs near the North Smithfield-Burrillville town line. Indeck planned to use 25 of those acres for the power plant.
“Tuspani officials could not be reached for comment yesterday on any industrial park plans or the siting board’s vote.
“Germani said the siting board became increasingly concerned in recent weeks about the impact an industrial park might have on the area around the plant.
“To determine whether those concerns were justified, the siting board asked Indeck for a copy of Indeck’s purchase and sales agreement with Tuspani to see whether it referred to an industrial park.
“Germani said the board also wanted Indeck to agree to do environmental impact studies on the effects of an industrial park, if one were to be developed.
“Indeck refused both requests.”
And in the category of Very Very Interesting is this: Michael Polsky, president of Invenergy, was the co-founder and president of InDeck!
Is the present EFSB chairwoman, Meg Curran, aware of this history?
Every time I have ever seen a permitting process the application must contain full and complete plans. Refusing to produce plans should be grounds for instant dismissal. Trying to save a billion dollar baby from having to spend a few hundred thousand dollars to produce plans should be grounds for the dismissal of all members of the EFSB. ( an aside is that I am trying to get a permit to restore an ecosystem. DEM would not look at my permit . Not because I refused to give information, but that I could not afford to spend money and gave them very accurate hand drawn maps. If I can not apply with a fully accurate hand drawn map, how the hell does Invergy get away with hiding information? ) It continues to show that the EFSB is an oirganization designed to con the people of RI into believing the government works for them, while it actually works only for the RICH.
Adding to this the DOH already responded that Invenergy and the EFSB need to take climate change into account, which the EFSB seems to be unwilling to do. That this still is hanging around and wasting our time and resources says that Governor Wall St. is a crtiminal and should be indicted on obstruction of justice charges.