Oleg Nikolyszyn – RI Future

July 26, 2016July 26, 2016

Invenergy’s John Niland under oath at PUC hearing for Burrillville power plant

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There were two big reveals at the first day of the PUC evidentiary hearing in Warwick on Monday. First, John Niland, director of development for Invenergy, admitted under oath that he knowingly gave false information to the EFSB at the March 31, 2016 EFSB hearing held at the Burrillville High School. Second, Invenergy’s proposed plant will not be clean: It’s emissions will be higher than the the current New England average of all power plants.

Everyone seemed surprised that the evidentiary hearing at the Public Utilities Commission (PUC) regarding Invenergy’s proposed $700 million fracked gas and diesel oil burning power plant for the Town of Burrillville wasn’t packed with Burrillville residents. The Warwick police officer seated at the back of the room looked almost bored. Michael McElroy rescinded his motion to hold the hearing in a larger venue because, as his co-counsel Oleg Nikolyszyn said, “there are plenty of seats.” Of course, holding the meeting 40 minutes outside Burrillville during a work day was a surefire way to limit attendance.

The Public Utilities Commission hearing is being held to help the one PUC commissioner that did not recuse himself craft an opinion on whether or not the plant is needed and what effects the plant will have on ratepayers. The one commissioner is lawyer Herbert F. DeSimone, Jr.. Of his co-commissioners, Margaret Curran is on the Energy Facilities Siting Board (EFSB), the body ultimately deciding on Invenergy’s application. Obviously she cannot write an advisory opinion to herself. Marion Gold is on record for having supported the plant during her stint as the executive director of the RI Office of Energy Resources. This leaves only Herbert DeSimone on the board. He will author the advisory opinion to the EFSB.

For what it’s worth DeSimone ruled early on that having only one person on the board does not violate any rules, as he will not be making any decisions, but will simply be crafting an advisory opinion.

Lawyers Alan Shoer, representing Invenergy and Jerry Elmer, representing the Conservation Law Foundation (CLF), delivered opening statements. Shoer argued that the plant is needed, that it will reduce air emissions and save ratepayers money. Elmer explained that Invenergy’s promises were unlikely.

The first witness was Building Trades president Michael Sabitoni. He testified on the “socio-economic impacts of project” i.e., the jobs. Elmer objected, because jobs are not within the scope of this hearing. DeSimone overruled Elmer, saying, “I’ll allow the statement to stand but I’ll give it the weight that is appropriate.”

Under grilling from Burrilville’s lawyer Michael McElroy, Sabitoni estimated that 80 percent of the jobs created by this project will be from Rhode Island. He had no estimates on the number of jobs that will be created for Burrillville. He said that the members of his unions will be well placed to get the more permanent jobs on offer at the plant as well.

Next up was John Niland, director of development at Invenergy. His testimony stretched out for over 80 minutes, and there were some interesting exchanges along the way.

Under oath and under the examination of Jerry Elmer, Niland admitted that when he said, to the EFSB on March 31 in Burrillville, that Rhode Islanders would save $280 million on electricity after the new plant was built, he knew the number was wrong. He said that he didn’t have a better number to give, so he went with the older, wrong number. The true savings cannot be over $30 million, and could be closer to zero, maintains the CLF.

Under examination, Jerry Elmer also forced Niland to concede that Invenergy’s claim that coal and oil together account for 28 percent of New England’s energy footprint is incorrect. The true number is closer to six percent.

Niland claimed that since Invenergy sold half it’s output in the most recent energy auction, the plant is needed, by definition. Burrillville’s lawyer Michael McElroy pointed out that if only half the proposed plant’s energy is sold, then by Niland’s own logic only half the plant is needed. And if half the plant is all that’s needed, savings to ratepayers can be expected to be “substantially less.”

Niland ageed.

The growth of renewable energy sources will reduce the need for the power plant over time, said Niland. The plant has a life expectancy of 40 years. Niland knows of LNG plants still operating after 60 years. Niland admitted that Rhode Island’s dependency on fossil fuels will increase once the plant is built. If the plant is built, Rhode Island’s carbon footprint will go up, admitted Niland. Though technically, said Niland, given that RI is a net energy importer our emissions, “could be reduced.”

McElroy was not happy with Niland’s caveat. Within Rhode Island’s borders, asked McElroy, “Emissions will go up, correct?”

“I believe so,” said Niland.

McElroy asked about why Burrillville was chosen as a location for the plant. Niland said that the location was chosen due to its proximity to the Algonquin gas pipeline and electrical transmission wires. (Both of which were updated recently, I should note.) Niland’s job is to locate and develop projects like the one planned for Burrillville. He was initially lured here because of the state’s high energy prices, near $17 a killowatt hour. The new lower prices at the recent energy auction, closer to $7, will probably reduce interest in bringing large projects like this to the region, said Niland. If an energy plant doesn’t clear the energy auction, said Niland, it isn’t needed.

2016-07-25 PUC Burrillville 3021 — Ryan Hardy

The next and last witness for Invenergy was Ryan Hardy. Hardy is the person who prepared Invenergy’s report that calculated the rate savings should the plant be built. Jerry Elmer began his cross examination by handing Hardy a calculator and asking him to run the numbers, based on Invenergy’s own specs. After a long pause, Hardy came up with the plant producing 817 pounds of CO2 per megawatt hour. Hardy’s written testimony was 760 pounds. Ryan countered that he was basing his number on estimates of actual plant use, which he estimated to be about 70 percent of capacity. The numbers Elmer had him calculate were maximum possible output.

Also, said Hardy, the plant will be “primarily run on LNG, never on fuel oil, unless gas is not available.”

However, both of Hardy’s estimates are over the New England average, meaning that the plant can’t reduce emissions, because the plant’s emissions are higher than the average plant emissions in New England.

Elmer asked Hardy about ratepayer savings next. “Was your analysis of FCA-10 [the electricity auction] based on selling both turbines?”

“Yes,” said Hardy.

“Were you wrong about that?”

“Yes.”

“Was it reasonable for Niland to estimate savings of $280 million when he knew otherwise?”

“Yes,” said Ryan.

You can read Jerry Elmer’s thoughts about day one of the hearing here.

2016-07-25 PUC Burrillville 3009 — Michael Sabitoni

July 13, 2016July 15, 2016

Police remove Burrillville residents from zoning board meeting

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The Burrillville Zoning Board meeting on Tuesday night became tense when Burrillville resident John Anthony Scott, an outspoken opponent of Invenergy’s proposed $700 million fracked gas and diesel oil burning power plant, attempted to play some video of the noise made by the Spectra Energy compressor station.

One of the many issues regarding the proposed power plant is the noise generated by the build up of fracked gas infrastructure in the area.

“Can we have the security stop this?” asked zoning board chair Raymond Cloutier, at which point four or five police officers descended and peacefully removed Scott from the podium, before escorting him out of the auditorium.

“So you’re surpresssing our first amendment rights,” said Scott, “I’m going to make sure I tell the news channels that. I’ll post it all over social media.”

According to Sally Mendzela, who attended the meeting,

“John Anthony Scott and Nicholas Cook set up huge speakers on the stage. The meeting started with regular business and then went on to public comment. Every speaker had to be sworn in. At some point, Burrillville Town Council attorney Oleg Nikolyszyn or Ray Cloutier, the zoning board chair, asked who had put the speakers up there. Nicholas and John were fetched and then all hell broke loose. They wanted to play a video John’s wife had of the pressure release from the compressor station.

“Oleg got all fired up about the difference between decibels and megahertz and said he would not allow Cook and Scott to play the video or audio recording.

“Cloutier had the five cops present come down front, all with the audience screaming and whatnot. John and Nicholas picked up the speakers and headed out with the cops.”

Edit: John Scott issued a statement in which he points out that “I have & always had a great relationship with the Burrillville Police… After the video… Nick & I left freely to go put equipment away in his car then returned to watch the rest of the meeting listening & supporting our family & friends residents & community!”

Some time after Scott and Cook were escorted out, Burrillville resident and power plant opponent Jeremy Bailey spoke to the board. He took the opportunity to hum to the board, to approximate the sound they might have heard if they had listened to the video and audio.

Both Bailey and John Scott have announced that they are running for positions on the Burrillville Town Council.

During a blow off, which happens several times a year, large quantities of methane and other chemicals are released directly into the atmosphere. The sound approximates a commercial jet airliner taking off.

June 22, 2016June 24, 2016

Experts testify on how power plant will impact Burrillville

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Setting up my camera at Monday night’s Burrillville Planning Board meeting, I saw one of the town’s two lawyers, Michael McElroy, turn suddenly from his place on stage and wave enthusiastically and with a smile at some friends who had just arrived. Turning, I noticed that the arriving friends were the lawyers and expert witnesses from Invenergy. The small cadre of Invenergy lawyers waved back collegially and I thought, “Who represents the people of Burrillville here?”

The meeting was held at the Burrillville High School, and was four hours long. The meeting did not end. Invenergy still had expert witness testimony to present, and 30 Burrillville residents had signed up to testify, only to never get their chance to speak. In the end, a decision was made by planning board chairman Jeffry Partington to continue the meeting on July 11.

This meeting was held to discuss Invenergy’s proposed fracked gas and diesel oil burning power plant. The Town of Burrillville and Invenergy had both hired experts to delve into the power plant’s plans and provide opinions as to whether or not the power plant would be able to control for such issues as air quality, water use and quality, noise levels, traffic and wetlands impact. The sometimes technical details were presented in a way that could be generally understood by a layman, and both the planning board and Invenergy’s lawyers were able to ask questions.

Before the meeting got started though, the planning board dealt with correspondence from Barry Craig, a retired lawyer recently returned to Burrillville. Craig had filed a motion to have the town’s lawyer, Oleg Nikolyszyn, recuse himself because of allegations that he and the town council had violated the open meetings act when issuing a resolution last week, a resolution that many feel gave the Senate Judiciary Committee in the RI General Assembly the excuse it needed to vote down legislation that would have vastly improved the town’s position regarding the power plant.

Before Craig could rise to speak, it was learned that Nikolyszyn had in fact recused himself from the proceedings, hence Michael McElroy’s appearance at the hearing, waving to his buddies from Invenergy.

The town called its expert witnesses to give their reports and answer questions from both the planning board and Invenergy’s lawyer, Elizabeth Noonan.

David Hessler discussed the noise the plant would emit during operations. The noise ordinance in Burrillville establishes a very low goal of 43 decibels, a goal Invenergy says it will be able to reach. Though Hessler says he is “leery of [Invenergy’s assumptions in their model” regarding operating noise levels, he is confident that “Invenergy will do whatever they have to, to meet the limits].

“It may be difficult and it may be expensive,” Hessler cautioned, adding, “I think it can be done.”

Later Hessler admitted that he had “never seen a power plant meet the noise levels” but reiterated that he thinks this plant can be designed to do so.

As loud as the power plant might be under normal operating conditions, it will be louder during start up and shutdown. When asked about Invenergy’s estimates about how long start ups and shutdowns take, Hessler said that Invenergy’s estimate of 10-30 minutes is “too short. There’s no way,” and said “I would not trust [Invenergy’s] numbers.”

Eric Epiner was up next, talking about air quality. Power plants like the one proposed for Burrillville are designed to fire pollutants through extremely tall stacks and released high into the atmosphere. Spinner expects that the impact on local air quality will be insignificant. However, the power plant plans Invenergy has submitted so far contain numerous errors and inconsistencies, as well as missing documentation. “We can’t say with certainty what the health risks are,” said Epiner.

The pollution from this plant, says Epiner, will not fall on Burrillville, but on people fifty kilometers away.

Tom Hevner was then questioned about the 40,000 gallons of ammonia to be stored on site. Invenergy’s plans call for 19 percent concentrations of ammonia, because 20 percent requires federal oversight. Ammonia, when released into the air, is extremely deadly, whether the concentration is 20 or 19 percent.

Hefner recommended that the Pascoag Fire Department be consulted on how to deal with such chemicals should they be stored on site, and also suggested that there may be other, less hazardous chemicals that Invenergy might use instead.

James Jackson was called upon to discuss the impact the new power plant will have on traffic in Burrillville, especially during the plant’s construction. He seemed to think that the impact would be minimal.

Jackson also spoke on the impact the plant might have on nearby wetlands. Right now water run-off from the plant is designed to be put in a pool that will directly abut the wetlands. Jackson said that the storm water run-off issues were not clearly resolved in the plans. The plan seems to call for storing toxic waste water next to a protected ecosystem. “I just don’t feel comfortable with this,” said Jackson.

Tom Hevner was brought back to talk about water use and the re-opening of well 3A, the well shut down 15 years ago by court order, due to MTBE contamination. MTBE is highly carcinogenic and Burrillville has paid a heavy cost because of this. Invenergy wants to use this water to cool their plant, promising to purify the water before it’s sent to a waste water treatment facility.

The “treatment scheme” says Hevner, is to draw water out of the well that will be contaminated at a rate of 55 parts per billion with MTBE. Due to condensation, that number will be 200 parts per billion by the time it reaches the power plant. There the water will be run through two Granulated Activated Carbon (GAC) filters (though Hevner recommends three GACs) at which point the MTBE should be at “non-detect” levels.

The danger is not in Invenrgy’s water purification system, which Hevner seems to think will work, the danger is back at the well, where pulling water out of the well “might draw back contaminants” that have leeched into the surrounding area underground.

Since the MTBE disaster in Pacoag, Burrillville has been buying its water from Harrisville, across the Clear River. The river acts as a barrier between the two water sources, but, says Hevner, it “needs to be demonstrated that there’s no hydraulic connection” between Harrisville and Pascoag’s water sources. Other wise, there’s a danger that reopening well 3A might contaminate Harrisville’s water with MTBE.

Hefner also thought that the well won’t provide sufficient water for the energy plant, which will need to draw millions of gallons a day. Hefner suggested that the plant might need to draw water from other nearby municipalities, like Harrisville, or even start drawing water from Wallum Lake. This suggestion certainly agitated the crowd.

After a break, Invenergy called their witnesses. Invenergy’s lawyer, Elizabeth Noonan, could not get all her testimony done before 10pm, so after much deliberation it was decided to continue the meeting on Monday, July 11 at 6pm at the Burrillville High School.

To be continued…

June 9, 2016June 9, 2016

Rep Keable disputes Burrillville Town Attorney accusation that he brought Invenergy to town

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A video showing Burrillville Town Council Attorney Oleg Nikolyszyn telling a resident that Rep Cale Keable is responsible for bringing the Invenergy power plant to the town has surfaced. In the video, Nikolyszyn says, in reference to the power plant, “Why don’t you ask Mr. Keable why he proposed this whole project in the first place? It was his idea.”

Keable calls the accusation “ludicrous.”

Nikolyszyn’s statement, if true, would seriously rewrite the history of the circumstances under which Invenergy decided upon Burrillville as the location for a fracked gas and diesel oil burning power plant. I reached out to Representative Cale Keable and asked about Nikolyszyn’s accusation. Keable denied Nikolyszyn’s version of events. His full statement is compelling reading and helps to fill some holes in the timeline of Invenergy’s interest in our state:

Solicitor Oleg Nikolyszyn and others’ suggestion that I directed Invenergy to Burrillville is ludicrous and an obvious example of political “hot potato.” Mr. Nikolyszyn, who was appointed by the Republican majority on the council, should concentrate on providing legal advice to the town council instead of engaging in petty, partisan finger pointing on behalf of its Republican members and town manager, Mike Wood. Mike Wood and the town council have faced the town’s disgust at their actions and now they desperately seek a way to make their problem mine. I know my friends and neighbors in Burrillville will see this obvious political tactic for what it is. Unlike others, I know my people are smart, intelligent people, capable — and deserving of — self-determination.

“When, after listening to the people of Burrillville, I made the decision to oppose siting of a massive, oil and gas burning power plant in Pascoag, people immediately told me that power plant proponents would find a way to attack me. After all, there is a lot of money at stake. So this obvious and desperate attempt at political character assassination, just as the people seek redress in the General Assembly — which is exactly what several members of the town council instructed them to do — does not surprise me in the least. Even the casual observer should be suspicious of the timing of Mr. Nikolyszyn’s statement.

“It is well known in Burrillville that our town manager, Mike Wood, intimidates anyone that steps out of line, including town council members and town employees. As the whole town has seen, Mike Wood now has them toeing the Invenergy line. I, however, refuse to live in fear of Mike Wood’s intimidation tactics. Obviously, that has made me a target. I will not allow his bullying to stop me from representing my friends and neighbors as best I can. If that means I can never win another election, then so be it. My only question for the town council is: “why have you not joined Sen. Fogarty and I in opposing Mike Wood’s power plant?”

“The Invenergy proposal and forthcoming tax treaty should be about one thing — what the people of Burrillville want for themselves. Now, more than ever, I believe putting the power plant’s tax treaty before the voters is the only way to ensure our voice is heard and Burrillville’s best interests met. Those in favor of a tax treaty can vote for it. Those opposed will have their day at the polls.

“In the winter of 2014/2015 (either late December or January), Invenergy’s attorney — who I know and respect from the legal community and from the State House — asked me to attend a meeting in Burrillville with the town manager, whom the attorney did not yet know, his client, and the town planner to discuss a possible development in Burrillville. Such an informational meeting is in not in any way out of the ordinary and I always try to assist my town with whatever needs that they might have. I attended the meeting and learned of Invenergy’s proposal for the first time. Invenergy’s plans had obviously been completely planned out before I was ever brought in the loop. Again, the meeting was certainly not to ask my permission or anything of the like as Mr. Nikolyszyn would seem to suggest, it was informational. The only thing that is curious about this meeting is the fact that apparently it was some time before Mike Wood — who heard the same information I did coming out of that meeting — bothered to inform the town council, who are nominally his boss. This should not be surprising to those who understand Burrillville politics.

Cale Keable

“Throughout 2015 and into early 2016, I had a neutral stance on the merits of the project and attempted to assist the town manager and town council in any way they asked. During that time, I was asked to submit legislation to help Mike Wood’s power plant and had several conversations in that regard. However, as the fact that the will of the people differed significantly from Mike Wood’s became clear to me, I did not submit legislation to help the power plant. I suppose that like many, I did not fully grasp the threat to our town at that time.

“However, in March of 2016, as Sen. Fogarty and I spoke to at first dozens and then hundreds of Burrillville residents, I became convinced that Mike Wood’s power plant would hurt our town. I therefore made the decision to publicly oppose the power plant in a letter to the Siting Board on April 7, 2016. I would hope that Mike Wood, the town council, and the council’s staff stop their attacks against me in a transparent attempt to lay their problem at my feet. Instead, I hope they stand up against the plant and for our people. At a minimum, I hope they at least be intellectually honest and acknowledge the fact that they want Mike Wood’s power plant and will do anything to make sure it gets built, if that is their position.”

June 9, 2016

The angry crowds never came to the Burrillville Town Council meeting

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The Burrillville Town Council, through their press agent Dyana Koelsch, issued a “press release” Tuesday evening in which they laid out many of the details they are looking for in a tax agreement with Invenergy, the company that plans to build a fracked gas and diesel fuel burning power plant in Pascoag.

In the release the Town Council takes a strong stand against the Keable/Fogarty legislation that recently passed House but has seemingly stalled in the Senate that would allow Burrillville voters the opportunity to approve or reject any tax treaties negotiated by their Town Council with power plant operators. Many Burrillville residents felt betrayed by the press release, arguing that the Town Council has demonstrated that it is working against the people and in concert with Invenergy.

The decision to issue the press release was made without any apparent public announcement, hearing or vote. Town Manager Michael Wood explained that in light of the legislation introduced by Rep Cale Keable and Senator Paul Fogarty, “we felt it was necessary to get a statement out… We send these press releases where we think they need to go.” (Note: atomicsteve@gmail.com is a great place to send press releases)

The issuance of the press release was likely decided at Tuesday night’s “special meeting” of the Town Council. In trying to access the video of this meeting, I discovered that there was no video. “As the camera was not working, there is no video for the June 7, 2016 Town Council meeting,” according to an email from the town clerk.

Too bad. It would have been interesting to hear what discussions, if any, pertained to the issuance of the press release.

The Town Council must have been expecting fireworks at their regular Town Council meeting last night. Upon arrival I noted the presence of at least four police cars and several officers outside. There was a heavier than usual police presence inside the Town Building at 105 Harrisville Main St. as well. Present was the entire Town Council, except for Kimberly Brissette Brown, who was absent. Also present were Town Manager Michael Wood, legal counsel Oleg Nikolyszyn, Town Clerk Louise Phaneuf and Koelsch.

The large, angry crowd never materialized.

In a phone interview, Koelsch told me that her PR firm was hired by the Town Council “to help them disseminate information in the best way we can to folks in town… The Town Council needs to speak with people in town and they need to let people know what they’re doing.” Clearly the Town Council thought her expertise would be useful in dealing with the angry crowds coming to the Town Council meeting.

About 20 people showed up. Only two residents from Burrillville talked to the Town Council: Donna Woods and Jaime Tessier. Instead of attending the Town Council meeting, most Burrillville residents concentrated their energies on the Senate Judiciary hearings in the State House in Providence.

The two Burrillvillians who addressed the Town Council did not mince words.

Donna Woods called the Town Council actions in sending the press release “shameful” and “corrupt.”

“You will be remembered for generations in this town for what you have done to us,” she said.

Jaime Tessier said to the Town Council, “That letter showed a complete lack of respect for the people you are supposed to represent.”

A gloomy Council President, John Pacheco III, ran the meeting almost by rote. He did not seem happy to be there. As the Council moved on from public commentary and into the regular meeting, they did so as 20 or so Burrillville residents simply sat there and watched, silently.

After the regular business was conducted, the Council went into “executive session” to hold a meeting about the Invenergy power plant. The public was not allowed to attend. In addition the the Town Council members the closed session was attended by Wood, Nikolyszyn, Phaneuf and Koelsch. The minutes and vote in the executive session have been sealed, but after coming out of closed session the Council announced that they had passed an official resolution that echoed the main points of the press release issued the day before.

May 26, 2016May 26, 2016

Sound and fury over power plant at the Burrillville Town Council

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Wednesday night’s Burrillville Town Council meeting began on a cautionary note as Council President John Pacheco warned those in attendance against outbursts, threats or cursing. These meetings are recorded, said Pacheco. The last meeting went too far, said Pacheco, and anyone acting that way tonight will be asked to leave. “Keep it civil, please,” said Pacheco.

Pacheco also acknowledged a change of policy regarding public comment under the Open Meetings Act. At previous meetings the town council maintained that they were not allowed to respond to comments and that only items on the agenda were allowed during public comment. Tonight Pacheco agreed that neither of these conditions are required under the law. This meant that tonight’s meeting was much more robust with the town council now having to say that they don’t want to answer certain questions, rather than saying that they are unable to answer.

Residents of Burrillville are up in arms about Invenergy‘s proposed fracked gas and diesel-oil burning power plant planned for the town. The plant’s owners promise lower taxes but residents say it will bring noise and pollution, as well as destroy precious wildlife habitats. The town council has been slow to respond to resident concerns about the power plant, and many feel that Town Manager Michael Wood has been actively working to bring the plant to town, rather than working in the best interests of residents.

Civility was maintained, but the anger of town residents was clearly on display. It was revealed at this meeting that on Saturday a group of anti-Power Plant protesters were asked to leave the Farmer’s Market because of their signs, petitions and tee shirts. This directive, say residents, came from Town Manager Wood. When asked about this at the meeting, Wood said that he only told the police and Burrillville Farmers’ Market Association Market Manager Deb Yablonski to not allow signs, not petitions and shirts. Wood said there is a long standing rule against “politicking” at the farmer’s market.

(When RI Future called Wood’s office earlier in the day to discuss this, Wood was out of the office and did not return our call)

Barry Craig, a lawyer, asked that the Town Council “provide guidance to the town manager” on the First Amendment, including the right to free speech and assembly. Lauren Niedel, a resident of nearby Glocester, rose to object to the word “politicking” saying that opposition to the power plant is not a political campaign.

Burrillville resident Jan Luby rose to express her distrust of Town Manager Wood. “I don’t believe our Town Manager is with us on this,” said Luby, “You’ve lied to us and we’ve caught you in those lies.” Christopher Watson rose to say, “He does not like this town, he does not treat the people of this town with respect.”

It was Jeremy Bailey who brought the conversation about Michael Wood to a boil, calling the town manager “a cancerous tumor.” Noting that he has heard from many people that Town Manager Wood is a bully, Bailey told the people on the stage, which included the entire town council and legal counsel of the Burrillville, “I bet there are people on the stage right now who have been bullied by Wood.” Bailey asked that the town council pass a resolution removing Wood from power, buying out his contract if necessary.

The town council took no action on Wood’s contract.

Residents were also concerned that the evening’s “executive session” of the town council, where the public is not allowed to observe, was being called by Wood to fast track a tax agreement with Invenergy for the power plant, ahead of Representative Cale Keable‘s bill that would allow the voters of the town to approve or reject such a tax treaty. Though the executive meeting was called by Wood and did concern Invenergy, residents were assured that no such action would take place.

There were a multitude of interconnecting issues discussed at the town council meeting concerning both the power plant proposed by Invenergy and the LNG compressor station upgrade proposed by Spectra. The compressor station emits a constant noise, which occasionally becomes extremely loud. Loud enough that some residents receive notifications ahead of “blow offs.” Residents fear that the new power plant will add to the noise once constructed, never mind the noise from trucks delivering materials to the build site and the sounds of construction.

Kathy Sherman said that Spectra, in their own materials, acknowledges that they are above the town mandated limit of 55 decibels. During a blow off, where LNG is literally released into the atmosphere to relive pressure in the pipeline, the sound is great enough that Sherman feels it would have given her husband a heart attack if he wasn’t given ample warning. Blow off, said resident Stephanie Sloman, emits 45 thousand tons of LNG a year from that one compressor station in Burrillville.

Spectra plans to build a bigger (and presumably larger) compressor station there soon.

Nicholas Cook gave a demonstration of the noise levels heard by residents. The low tone generated by Cook is not heard well on the recording below, but the sound immediately annoyed town solicitor Oleg Nikolyszyn, who asked that the sound be turned off almost immediately. Imagine that sound lasting from 10pm to 4am, almost every night, said resident Kathy Sherman, who lives 2050 feet from the compressor station.

You can watch Nick Cook’s noise demonstration, and all the rest of the Burrillville Town Council meeting, at least those parts concerning the power plant, below.

May 19, 2016May 19, 2016

More confusion, not clarity, from the Burrillville Town Council

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At the second “special meeting” of the Burrillville Town Council, held as a semi-official “workshop” to allow discussion of various aspects of Invenergy‘s plan to build a fracked gas and diesel oil burning electrical plant in the town, the agenda, entitled “Hour on Power II” claimed that the “fundamentals of municipal tax agreements” would be discussed. Potential tax agreements with Invenergy are a very contentious issue, because under state law, as explained by Conservation Law Foundation Senior Attorney Jerry Elmer, Burillville has the right to set the property taxes on the plant at any level it chooses, yet Town Solicitor Oleg Nikolyszyn, it seems, disagrees, maintaining that the Town must negotiate a fair tax treaty with Invenergy.

Expecting that there would be expert legal advice on offer, many residents made the trip to this special meeting, only to find that there were no lawyers or expert advice on offer. Instead, the Town Council introduced Dr. Robin Muksian, a resident of Burrillville who currently serves as executive director of operations for the Providence School Department. She holds a Ph.D. in rhetoric and composition. Speaking as someone with some experience in negotiating deals between the state and private citizens, (she claims to have once lost a strip of land to the state in some kind of imminent domain situation) Muksian said that under state law, the town “must” negotiate with Invenergy, they can’t just set the tax at what ever rate they wish. Jerry Elmer explained otherwise, quite clearly, here.

Muksian misquoted the statute, advancing the idea that under state law 44-3-30, Burrillville “must negotiate” with Invenergy for a fair tax treaty, when the law actually states that town may “determine, by ordinance or resolution, an amount of taxes to be paid each year”. The plain text of the law does not contain the word negotiate, and if other laws on the books do contain such a provision, it does not matter, because 44-3-30 starts with the words, “Notwithstanding any other provisions of the general laws to the contrary,” meaning that 44-3-30 supersedes any other laws governing such negotiations.

Muksian also admitted to coming to the power plant issue late, and that she hadn’t attended any of the Energy Facility Siting Board (EFSB) meetings held in the town so far. This might explain why she thought that residents could bring questions to the EFSB, instead of just comments. The EFSB does not respond to residents at these meetings, yet Muksian said that questions should be brought to the EFSB at these meetings.

Under questioning from Burrillville resident Paul Lefebvre, Muksian at first dodged the question of whether or not she opposed the building of the new power plant. It took Lefebvre several questions before Muksian reluctantly said that she opposes the plant. For some reason she seemed at first to strike a more neutral position.

Most of Muksian’s talk is in the first half hour of the video below. Note that the meeting took place in Burrillville’s beautiful Assembly Theater, which was dark and not kind to video or photography. The Town Council is on the stage, well lit. The rest of those in attendance, not so much.

Many in attendance were asking themselves why Muksian was given so much time to expound on legal issues she was clearly not qualified to speak about. She constantly prefaced her comments by saying that she was “speaking as a resident of Burrillville” and that she wasn’t a lawyer. That raised an important question for the Town Council that went unanswered: Why Muksian and not any other non-lawyer resident of Burrillville?

After the meeting a resident told me that there is a rumor that Muksian is being considered for the position of Town Manager. Michael Wood, the current Town Manager, was not in attendance at the meeting, and Council President John Pacheco, from the stage, made a pointed comment about Wood’s contract being up for renewal in February of 2017. During the meeting, when a resident suggested that Michael Wood be fired, there was a standing ovation.

Wood has alienated many in the town with what one resident characterized as his “imperious” attitude. Further, in the April 23 Burrillville Bugle, delivered to every resident’s mailbox every month, Wood made comments that seemed to indicate his support for the new power plant and disregarded the environmental and health concerns of residents. For instance, he said, “the negative effects of the existing power plant, Ocean State, is not “anything to be overly concerned about.” Many feel that the over all tenor of his comments in the Bugle indicate that he supports building the plant.

Town Councillor Kimberly Brissette-Brown

As a result, the residents of Burrillville distrust Wood’s judgement when it comes to the hiring of experts to review the proposed plant’s impact on health, environment, wildlife, water quality, noise etc. They also distrust his ability to negotiate with Invenergy wisely, with the best interests of the town in mind.

A breath of fresh air came to the meeting about 82 minutes into it. Barry Craig, an actual lawyer (though not one licensed to practice law in Rhode Island) and a Burrillville resident, rose to call out the Town Council and Town Solicitor Oleg Nikolyszyn on what he termed their timidity in dealing with Invenergy.

Craig attended the first EFSB meeting in Burrillville. He thought, “it was very poorly managed.” He called the set up of the meeting, with the applicants (Invenergy’s Director of Development John Niland and his lawyers) on stage and the residents of Burrillville below them in the seats of the auditorium was “an insult.”

Craig said that to defeat this plant, the residents of Burrillville, through their Town Council, must “vigorously oppose” the plant. Craig came to the special town council meeting last night because he read the legal opinions of Town Solicitor Nikolyszyn, made in response to questions posed by residents. “At best,” said Craig, “I read these responses as being timid, at worst I read these responses as responses that discourage action rather than encourage action.”

For instance, the proper answer to the question, “Can the town council find new solutions to prevent locating the power plant in Burrillville?” isn’t to note that the EFSB has enormous power, the answer, says Craig, is, “Can we find creative ways of dealing with this issue? … Anything that delays this project makes it less likely… Companies like this work on a time schedule. If they can’t get a project done within a particular time frame they move onto the next project.”

One thing that became very clear in last night’s Burrillville Town council meeting is that discussing complex legal issues without lawyers present is a waste of time. Perhaps Muksian’s appearance was an audition for a future job, perhaps she’s just a citizen who waded into waters over her head, but her advice and commentary were worse than a waste of time: They spread dangerous misinformation, misinformation that will weaken the Town’s resolve and ability to fight Invenergy’s plans for the town.

Burrillville doesn’t need more bullshit. Burrillville needs courageous leadership ready to fight Invenergy with everything they have, or they will be living with the first of a series of such power plants very soon.

May 3, 2016May 4, 2016

Burrillville Town Council has absolute authority to set Invenergy tax rates

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On January 14, 2016, the Rhode Island Supreme Court ruled that wind turbines are manufacturing equipment and therefore exempt from local property taxes under state statute. The decision in DePasquale v. Cwiek developed the legal view that wind turbines are, “used exclusively for the purpose of transforming raw material—wind—into a finished product—electricity—and as a result the taxpayer meets the definition of a manufacturer, making the turbine eligible for tax-exempt status.”

If turning wind into electricity is a tax free proposition, it logically follows that turning “natural” gas into electricity would be as well. For instance, Invenergy‘s proposed $750 million fracked gas and oil burning plant in Burrillville, may well have been a tax free proposition for the company under this ruling.

Fortunately, there is a specific statute to the contrary, R. I. Gen. Laws § 44-3-30:

44-3-30 Burrillville – Property taxation of electricity generating facilities located in the town. – Notwithstanding any other provisions of the general laws to the contrary, the town council of the town of Burrillville is authorized to determine, by ordinance or resolution, an amount of taxes to be paid each year on account of real or personal property used in connection with any facility for the generation of electricity located in the town, notwithstanding the valuation of the property or the rate of tax.

All well and good then. The Town Council of Burrillville has the absolute right to set the taxes for the proposed Invenergy plant at any level they wish “notwithstanding any other provisions of the general laws”. They could set the tax rate at $1 a year or a $100 million a year. In fact, if the Town Council were truly interested in stopping the proposed power plant, they could simply set the tax rate at $100 billion per year. It would stop the development cold.

Let me repeat: Despite the RI Supreme Court ruling, the Burrillville Town Council has absolute authority to set the tax rate for the new power plant at whatever level they wish.

Yet that is not how Town Manager Michael Wood and Burrillville Town Council solicitors Oleg Nikolyszyn and Michael McElroy seem to have reacted to the court’s ruling. Instead, the Burrillville Town Council, at a special meeting on February 23, asked Reps Cale Keable and Brian Newberry, as well as Senator Paul Fogarty, to “make sure that the existing [state level] legislation [cited above] we have will allow for the siting and construction of the new power plant in the town.”

Though it is apparent that Keable, Newberry and Fogarty didn’t make any changes to RI State Law 44-3-30 concerning power plant taxation and that no changes were necessary, that isn’t the only change the Town Council asked their state representatives to make regarding the state law around power plants. About a month earlier, at a January 27 Town Council meeting and two week after the RI Supreme Court ruling, a resolution was unanimously passed by the Burrillville Town Council to “respectfully request that our legislative delegation introduce legislation” to amend R. I. Gen. Laws § 44-3-9.3, which governs “exemption or stabilizing of taxes on qualifying property used for manufacturing or commercial purposes.”

According to the minutes of the meeting, the motion to vote on the request to change the law was made by Councillor David Place, who has announced his run for State Representative against Cale Keable.

What is the major change in the law requested by the Town Council? The addition of the word “manufacturing” over and over again within the statute, expanding the range of the statute to make sure that power plants (which could be classified as manufacturers now) are covered. Now again, changing this law is not necessary in order for Burrillville to have full control over the taxation of the proposed Invenergy plant, and the Town Council never mentions Invenergy or manufacturing when discussing this resolution prior to passage. But the timing of this requested change is suggestive.

If this request was in response to the RI Supreme Court decision, it demonstrates that the Town Council was aware of Invenergy’s plans in January, not February, as previously demonstrated. Like the February request for changes in the General Laws, this request was also ignored by Keable, Newberry and Fogarty.

Whether or not the Burrillville Town Council, Town Manager and legal counsel worried about the DePasquale v. Cwiek decision, it is apparent that they have been keen to make sure that the RI General Laws are in their favor and that the court’s decision will not apply to their town or to the Invenergy plant.

But it’s also hard to believe that the Town Council is interested in stopping the power plant’s construction. If they wanted the plant stopped, they simply have to propose a prohibitively high tax rate, one Invenergy could not afford. Cale Keable, as reported by several Burrillville residents, is correct when he says that the power to stop this plant rests with the Town Council. Sure, the Energy Facilities Siting Board has the power to approve the plant, but the Town Council has the power to make the plant so unprofitable that Invenergy will never bother building it.

April 15, 2016May 3, 2016

Burrillville Town Council can stand up to Invenergy

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The revelation that the Burrillville Town Council, under the leadership of John Pacheco III, has been engaged in ongoing negotiations with Invenergy LLC over potential tax breaks for their Clear River Energy Center gas and oil burning power plant, came as a surprise to many Burrillville residents Wednesday evening. Burrillville Town Solicitor Oleg Nikolyszyn, in a comment on the piece that broke this story objected to the word “secret” saying that the negotiations he and Town Manager Michael Wood were engaged in were “due diligence” and “not behind anyone’s back, or in secret, but openly.” He also says that, “Until now, the Council has not been engaged or negotiating with Invenergy.”

Nikolyszyn feels that he and the Town Manager, “would be remiss if we did not take into consideration what financial benefit the Town would receive.” They are doing, “what professionals are expected to do in a business environment.” At the meeting Nikolyszyn said that the town had a “fiduciary duty” to enter into negotiations.

That’s not what the law says.

Conservation Law Foundation senior lawyer Jerry Elmer maintains that, “one of the most effective ways that the Town Council can seek to prevent the siting of the Invenergy plant is to deny Invenergy the tax treaty it seeks.”

Not entering into a tax treaty with Invenergy will not necessarily stop Invenergy in its tracks, the plant could still go forward and pay higher taxes to the town, taking a hit to their profitability in the process. Elmer reminded me that the profitability of the plant has already suffered two recent hits “when (a) Invenergy cleared only one of two turbines in the February 8 Forward Capacity Auction; and (b) the SENE zonal clearing price had zero premium over the clearing price in Rest of Pool, unlike the previous two auctions in which our zone cleared at a huge premium.”

How many more hits to the plant’s profitability can Invenergy afford?

At Wednesday evening’s Town Council meeting Nikolyszyn was correct when he said that Burrillville has no say in whether or not the plant gets approved for Burrillville. As Elmer helpfully explained,

The underlying reason that the General Assembly created the Energy Facility Siting Board (EFSB) by enacting the Energy Facility Siting Act (EFSA), was that it was assumed that — whenever any major power generation facility is planned to be built anywhere — the local residents in the local town would oppose the plant because of local impacts. The purpose of the EFSA is to take the power out of the hands of the local officials, who may be subject to constituent pressure to oppose the plant. That is the reason that all the opinions that the EFSB gets under the EFSA (from DEM, OER, Town of Burrillvile, etc.) are advisory opinions only. The final decision to grant or deny a permit to build the plant rests solely with the EFSB. This was the purpose of the law.”

However, “it is in the sole discretion of the Town Council whether or not to grant a beneficial tax treaty to Invenergy. The Governor cannot force them to do that. The EFSB cannot force them to do that.”

Pacheco and other Town Council members said over and over that they need to be neutral ahead of any reports that their boards are preparing for the EFSB, because it was the Town Council that nominated the members of these boards. This is of course nonsense. Governor Gina Raimondo, who nominated the members of the EFSB board, has been a major proponent of the plant. Where is her neutrality? Why is she not afraid that her support for the project will affect the people she’s nominated to board positions?

This pretension of neutrality merely shields the Town Council from their responsibility to their constituents, who overwhelmingly do not want this plant. Nikolyszyn might think this is all business as usual but he forgets: government is not business.

The Town Council would be completely in their power to pass a resolution declaring that they will not, under any circumstances, engage in a tax treaty with Invenergy. The company could then decide to go forward with the plant or not, but not only will their profitability suffer, so will their public image.

Reaching a deal with the Town will give Invenergy and Governor Raimondo political coverage. With a tax treaty in place it will be harder to say that the plant was forced on the Town against the will of the people since the company negotiated with the representatives of the people for an “equitable” deal.

Democracy will have worked, supposedly.

Not engaging with Invenergy sends a strong message that this plant is not wanted by the people of Burrillville. The plant can then only proceed against the will of the people, against the wishes of a democratically elected government. A Governor that blatantly disregards the will of the people in such a situation is a tyrant. A company that builds an unwanted facility against a community’s interests is not a community partner but a despoiler.

Now is not the time for wishy-washy politics, business as usual and secret (not secret) negotiations.

If the Burrillville Town Council can’t take a stand, it’s time for the citizens of Burrillville to find new Town Councillors.

April 14, 2016May 3, 2016

Burrillville Town Council secretly negotiating tax deals with Invenergy

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In a stunning revelation, Burrillville Town Council legal counsel Oleg Nikolyszyn confirmed under questioning from Burrillville resident Jeremy Bailey that the council has been secretly negotiating a tax agreement with Invenergy for the proposed gas and oil burning power plant. Before this revelation, the existence of such negotiations may have been suspected, but were not confirmed. Shortly after Nikolyszyn’s revelation, Councillor Kimberly Brissette Brown questioned whether the item was properly before the Council. Council President John Pacheco III said that the item was not properly before the council, and said that if Bailey wanted to discuss the issue of the Council’s tax agreement deliberations with Invenergy, he would have to put that item on the agenda.

How Bailey would know to put previously unknown secret meetings with Invenergy on the agenda was not discussed.

Nikolyszyn’s admission capped a stressful and difficult Burrillville Town Council meeting, in which council members, aided by legal counsel Nikolyszyn, once again said that they have no power to stand against Invenergy. President Pacheco said that if the Town Council doesn’t remain absolutely neutral about the plant, it may seem that they are unfairly influencing various boards, the members of which the Town Council has nominated. Why this level of neutrality is necessary from the Burrillville Town Council in relation to boards they nominate but such neutrality is not necessary for Governor Gina Raimondo, who nominates the members of the Energy Facilities Siting Board and has taken a position in strong support of the power plant, is unknown.

Burrillville resident Jonathan Dyson later followed up with the Town Council about the tax negotiations with Invenergy, asking if there was any board, regulation or law that forced the tax agreement meetings. Despite saying earlier that the item wasn’t properly before the board, Pacheco answered Dyson and maintained that entering into such discussions was a fiduciary duty of the Town Council. Then Pachco added that these negotiations also include the “potential abutters to the power plant,” that is, people who own property next to Invenergy’s land.

Pacheco didn’t explain exactly what this means, but it seems to indicate that Invenergy is actively negotiating what payments, if any, abutters to the project might receive in the event that the power plant is built.

When Dyson then asked the Town Council “under what conditions would the Town Council say no to Invenergy,” Town manager Michael Wood angrily said, “That is not an agenda item.” But in fact, it was an agenda item 16-106 (b). Wood then said that the item was too vague and would not be discussed, never mind that earlier, Council President Pacheco had complimented Gary Patterson, who requested that item be placed on the the agenda, saying, “Your item on the agenda was properly phrased. I appreciate that.”

Throughout the meeting the Town Council took great pains to tell the people attending that the fix wasn’t in and this wasn’t a done deal. However, to the consternation of most of those present, the Town Council has admitted to secretly negotiating tax agreements and issues of abutment with Invenergy. Worse, theses discussion have been going on for some time, as the earliest discussions seem to precede Oleg Nikolyszyn becoming town solicitor.

By the end of the meeting the public was more angry and distrustful of the Town Council than when the meeting began.

I’ll be writing much more about this meeting in a future piece, but right now, questions remain: How long has the Town Council been in negotiation with Invenergy? Who has been party to these negotiations? The Town Council says that this isn’t a done deal, that the “fix isn’t in” but what other unknown meetings and negotiations are happening without the public’s knowledge?

November 5, 2015May 3, 2016

Spectra bills activists $30,000 for Burrillville pipeline project delays

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2015-09-14 FANG — Matt Smith, Keith Clougherty and Nick Katkevich

The FANG (Fighting Against Natural Gas) activists who locked themselves to Spectra construction equipment in September to call attention to the methane pipeline expansion project in Burrillville are facing a $30,000 restitution payment.

Nick Katkevich of Rhode Island, Keith Clougherty of Massachusetts and Matt Smith of New Jersey were handed an itemized bill by Spectra’s lawyers that supposedly covers the construction time lost as police and fire crews attempted to unlock the protesters. Ultimately the protesters unlocked themselves, and there are no reports of any damage done to any equipment.

“Spectra hired a contractor to perform some work,” said Oleg Nikolyszyn, the Burrillville town solicitor, in a phone interview. He was prosecuting the case until yesterday, when the defendants requested a jury trial in Superior Court.

“The contractor bills Spectra for the time they have certain equipment and men” on site, he explained. “As you can imagine they charge a ton of money by the hour, and the machines have to be there to do the job. If they could have been utilized somewhere else they could have been generating income for the contractor, but the contractor was required to be on site. So all this money for the contractor was billed to Spectra, and Spectra’s out of pocket for a lot of money.”

Katkevich, one of the defendants, said the district court judge was considering making the payment of restitution a condition of whatever deal is worked out. If applied, that would differ from the judge’s decision in the district court case of Sherrie Andre, who delayed construction with a tree sit earlier in the summer. The judge in that case refused to make payment of restitution a condition for settling the case and told Spectra that they should pursue any lost monies in civil court.

So far that hasn’t happened in this most recent case.

Solicitor Nikolyszyn said that in Superior Court, “Spectra will be asking a judge to order restitution, to make Spectra whole, for what these three individuals did. That’s up to the judge as to what to do. That’s who will order restitution and if so, how much.”

“It’s out of my hands as of yesterday,” said Nikolyszyn, “So the future of what happens in this case will be up to the Superior Court judge. Those cases in Superior Court are prosecuted by the Attorney General’s department.”

According to Katkevich, the activists are ready to take the case to trial in Superior Court and are preparing to make a “necessity defense.” This defense allows a person “to act in a criminal manner when an emergency situation, not of the person’s own creation compels the person to act in a criminal manner to avoid greater harm from occurring.”

The emergency situation, the defendants will argue, is climate change. The first successful use of the necessity defense for climate-related civil disobedience was in September of last year when Massachusetts District Attorney Sam Sutter dropped charges against climate activists Jay O’Hara and Ken Ward when they used their lobster boat to block a coal delivery to the Brayton Point Power Plant in Fall River. Solicitor Nikolyszyn says that the necessity defense was never brought up to him.

Defendant Keith Clougherty said a multinational corporation charging restitution is “an intimidation tactic used against grassroots organizations. If Spectra wants money they have the means to do a civil suit, and restitution is for those people who don’t have the means to go through with a civil suit. I think its ridiculous that Spectra can even use something like restitution through the legal system to punish us.”

Clougherty went on to say,

I think there’s a real conversation to be had around what restitution means. If we’re paying Spectra restitution because they’re the “victim” then I feel there’s a much larger conversation to be had around companies like Spectra having to pay restitution for years of damage and poison to communities that they operate in.

There are long standing health effects of the compressor station, their pipelines have leaked, and while they have been fined significantly in the past for specific violations, I think Spectra should be paying restitution for the damage they’ve been doing on the order of millions of dollars in health and property damage.

I think not just Spectra but all fossil fuel companies should have to pay really significant restitution to the communities all over the world that are facing the catastrophe of climate change right now.

I’m sure people are working on these kind of theories out there, I haven’t encountered them yet, but I think that’s something we really need to start talking about.

People interested in contributing to the defense fund can follow this link.