Thursday, September 16, 2010 6:24:15 PM
Thanks Spence....
STATE OF NEW HAMPSHIRE
SITE EVALUATION COMMITTEE
Application of Laidlaw Berlin BioPower, LLC for a Certificate of Site and Facility
for a Renewable Energy Facility in Berlin, New Hampshire
SEC Docket No. 2009-02
POST-HEARING BRIEF OF CLEAN POWER DEVELOPMENT, LLC
I. PRELIMINARY STATEMENT
CPD is a New Hampshire limited liability company that focuses on the development of renewable and sustainable wood-fueled biomass-energy facilities. CPD’s offices are located at 130 Pembroke Road, Suite 100, Concord, New Hampshire.
CPD plans to construct, own and operate a biomass facility, Clean Power Berlin, LLC (“CPB Facility”) located in Berlin, New Hampshire, which will generate electricity and steam through the combustion of forest product biomass chips supplied through local markets. The CPB Facility will be capable of generating not more than 29.5MW gross output of electricity. Normal net generation will usually be in the 15 to 22MWw gross output range based upon thermal load during combined heat and power (“CHP”) operation. The CPB Facility can operate with an efficiency of 60% or higher through CHP design.
The site of the CPB Facility is 20 Shelby Street in Berlin, on land adjacent to the City of Berlin Waste Water Treatment Plant. The site of the CPD Facility is on the Androscoggin River, approximately 1 ½ miles downstream from the site of the Laidlaw Project.
On December 16, 2009, Applicant Laidlaw Berlin Biopower, LLC filed an Application with the Site Evaluation Committee for a Certificate of Site and Facility in Berlin, New Hampshire. Hearings were held by the Committee on August 23 through August 27, and on September 10. Clean Power Development, LLC was granted limited intervenor status by the Committee. Order on Pending Motions (March 24, 2010). CPD presented testimony and conducted cross-examination at the hearings. CPD hereby submits its post-trial brief in this proceeding. In this brief, CPD primarily focuses on the key issues which have arisen during the proceeding. By way of supplementation, appended hereto and incorporated herein is the closing statement of CPD made to the Committee on September 10, 2010. Transcript Day 6 at 85 to 102.
II. ARGUMENT
A. Applicant cannot be granted a Certificate of Site and Approval unless and until the Purchase Power Agreement (PPA) is approved by the New Hampshire Public Utilities Commission (NHPUC).
The Committee can only issue a Certificate of Site and Facility if it can make a finding that the Applicant has adequate financial capability to assure construction and operation of the facility. See, RSA 162-H:16, IV(a). According to Applicant’s Testimony, “nder RSA 162-H:16, in order to obtain a Certificate of Site and Facility the Applicant must show that it has adequate financial capability to construct and operate the Project in compliance with the terms and conditions of the Certificate.” Testimony of Michael B. Bartoszek at 4. Stated differently, an applicant cannot obtain a certificate unless it can show that it has adequate financial capability.
According to Applicant,
[t]he ongoing operations of the Project will largely be supported by the cash flows generated from a long-term Power Purchase Agreement (“PPA”) that is being finalized with Public Service Company of New Hampshire (“PSNH”) pursuant to an executed Letter of Intent. The PPA is an essential element of the Project’s financial viability and will be the dominant positive factor in securing the debt financing.
Application at 92 (Emphasis added).
Moreover, the Applicant provided the following response to a data request from Public Counsel:
14. Is a PPA necessary in order to make the Project financially viable?
Response: Yes.
Laidlaw Exh. 17
Pursuant to RSA 362-F:9, the PPA requires approval from the NHPUC before it can become effective. Accordingly, since Applicant has stated that the “PPA is an essential element of the Project’s financial viability,” the Applicant will not be able to demonstrate “adequate financial capability” unless and until the PPA is approved by the NHPUC.
In its Application, Laidlaw stated that:
Similar to the Committee’s course of action in Granite Reliable Power, LLC (Decision Granting Certificate of Site and Facility With Conditions, July 15, 2009, Docket No. 2008-04), the Applicant would be willing to accept a certificate condition that prohibits the commencement of construction until all construction financing is in place.
Testimony of Michael B. Bartoszek at 8.
Laidlaw’s reliance on the Committee’s Decision in the Granite Reliable Power, LLC proceeding is misplaced. In that Decision, the Committee found that:
[t]he Applicant has demonstrated, by a preponderance of the evidence, that is has the financial capability to finance, construct and operate the project. Nonetheless, all parties agree that the current market for financing such projects is challenging. Therefore, the Subcommittee determines that the Applicant must have committed construction financing for the project in place before construction may commence.
Decision, SEC Docket No. 2008-04, at 32 (Emphasis added.)
Granite Reliable Power, LLC was able to satisfactorily demonstrate to the Committee that it had the present capability to finance, construct and operate its project, based in large part on its experience in developing a number of other wind power projects. In contrast, based upon its Application and Testimony, Laidlaw Berlin Biopower, LLC (or NewCo. – see argument below), an entity that has not developed other biomass projects, will not possess, as it must, the requisite financial capability to finance, construct and operate its proposed project unless and until the PPA is approved by the NHPUC. While the NHPUC has opened this docket, there has not yet been a prehearing conference, the deadline for the submission of interventions has yet to come, and no schedule has yet been set for the docket. It is likely to take at a minimum, a number of months to resolve.
B. RSA 162-H: 16, IV requires that the Committee must consider “available alternatives” and, other relevant factors bearing on whether the objectives of RSA 162-H would be best served by the issuance of the Certificate.
New Hampshire’s siting statute, RSA Chapter 162-H, has as its fundamental purpose the selection and utilization of appropriate sites for new bulk power and energy facilities. In enacting Chapter 162-H, the legislature recognized “that the selection of sites for energy facilities… will have a significant impact upon the welfare of the population, the location and growth of industry, the overall economic growth of the state, the environment of the state, and the use of natural resources.” RSA 162:H-1 (Emphasis supplied). Accordingly, the Legislature determined that it is in the public interest to:
(a) to maintain a balance between the environment and the need for new energy facilities; (b) to avoid undue delay in the construction of needed facilities and to ensure full and timely consideration of environmental consequences; (c) to ensure that all entities planning to construct facilities provide full and complete disclosure to the public of such plans; and (d) to ensure that the construction and operation of energy facilities is treated as a significant aspect of land-use planning in which all environmental, economic, and technical issues are resolved in an integrated fashion.
Id. (Emphasis supplied.)
New Hampshire’s siting statute also sets forth the framework and criteria to be used by the Site Evaluation Committee in evaluating whether to issue a certificate of site and facility:
The site evaluation committee, after having considered available alternatives and fully reviewed the environmental impact of the site or route, and other relevant factors bearing on whether the objectives of this chapter would be best served by the issuance of the certificate, must find that the site and facility:
(a) Applicant has adequate financial, technical, and managerial capability to assure construction and operation of the facility in continuing compliance with the terms and conditions of the certificate.
(b) Will not unduly interfere with the orderly development of the region with due consideration having been given to the views of municipal and regional planning commissions and municipal governing bodies.
(c) Will not have an unreasonable adverse effect on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety.
RSA 162:H-16, IV (Emphasis added.)
In a recent decision, the Supreme Court explained the well-settled fundamental tenets of statutory construction:
In matters of statutory interpretation, we are the final arbiters of the legislature’s intent as expressed in the words of the statute considered as a whole. We interpret statutes not in isolation, but in the context of the overall statutory scheme. Our analysis must start with consideration of the plain meaning of the relevant statutes, construing them, where reasonably possible, to effectuate their underlying policies. Insofar as reasonably possible, we will construe the various statutory provisions harmoniously.
In re Pennichuck Water Works, Inc., 160 N.H. 18, 992 A.2d 740 (N.H. 2010).
Accordingly, in deciding whether to issue the proposed Laidlaw project a certificate of site and facility, the Committee must construe the statutory term “after having considered available alternatives”, in a manner consistent with the purposes of the siting statute: to wit, “to maintain a balance between the environment and the need for new energy facilities.” It would be an error of law for the Committee to not consider all available alternatives to the Laidlaw Project to balance environment impact and new energy facilities. One such alternative that should be considered by the Committee is the Clean Power Development project proposed for Berlin on the site of the Berlin Waste Water Treatment Facility. Alternatives such as the Clean Power Development project must be considered and evaluated by the Committee in order for it to determine the optimum balance between the environment and the need to construct new energy facilities.
CPD also submits that as part of this analysis of alternatives, the Committee should consider the alternatives of continuation of existing biomass facilities, as compared with the construction and operation of a new Laidlaw facility, since, as noted below, there was testimony to the effect that construction of the Laidlaw facility will put existing biomass facilities out of business.
C. Applicant’s proposed facility will interfere with the orderly development of the region.
In deciding whether to issue the proposed Laidlaw project a Certificate of Site and Facility, the Committee must construe the statutory term “orderly development of the region”, in a manner that, inter alia, does not negatively impact the location and growth of industry and ensures that “all environmental, economic, and technical issues are resolved in an integrated fashion.”
1. The proposed Laidlaw project will negatively impact the existing biomass generating facilities resulting in the loss of jobs and economic activity.
The central issue in this proceeding was succinctly and accurately articulated in the following brief exchange between Committee member Michael Harrington and Mel Liston, General Manager of CPD:
BY MR. HARRINGTON:
Q. Getting back to a couple specific questions.
It seems as if the testimony we've heard on the availability of wood has been one constant throughout, given by Laidlaw, their experts and yourself, and that is: If you're willing to spend enough money, there's plenty of wood. Do you agree that's correct?
A. That's correct.
Q. So, rather than harp on how much is available and from what mileage, it really comes down to price.
Transcript Day 5 at 116.
CPD repeatedly stated during the hearings that if the Laidlaw project went forward, and the NHPUC approved the proposed PPA between PSNH and Laidlaw, then CPD would be unable to continue with its proposed combined heat and power project to be located in Berlin. CPD’s statements were echoed by a number of the existing biomass generating facilities and their representatives:
Indeck-Alexandria Energy, Alexandria, N.H.
Indeck’s ability to compete as a merchant generating facility in New Hampshire is directly impacted by the development of the Laidlaw project and the purchase power agreement with Public Service
Transcript Day 5 at 175.
D. G. Whitefield Biomass Power Plant, Whitefield, N.H.
D. G. Whitefield will be at a competitive disadvantage with this proposed large-scale biomass facility, particularly if the Laidlaw facility benefits from an above-market rate order that includes fuel cost recovery mechanisms. This would effectively allow Laidlaw to pass through regulator-approved fuel costs to captive electricity customers. This presents an unfair competitive advantage that threatens the continued viability of D.G. Whitefield.
Transcript Day 5 at 209, 210.
Concord Steam Corporation
What we, essentially, what we create, if we allow this to go forward, is one buyer, and I know it's Laidlaw, but, effectively, it's PSNH. We've got one buyer, with two plants, that will control well over 50 percent of the wood supply in the marketplace in New Hampshire. And, allowing them to have a contract with Cousineau throws another monkey wrench in the works. And, I think it's going to create some real problems for us to continue to get wood supply at a reasonable rate. I have ratepayers I have to be concerned for. And, I think this is going to severely affect our ability to protect their interests.
Transcript Day 6 at 15.
Robert Berti, North Country Procurement
So, my thoughts on it, knowing what the present price of electricity is, and what the plants can pay, and what's available, I think that, if that Laidlaw Project goes in, the impacts on two existing will be severe. The impact on two other plants will be moderate to severe. And, two other plants will be slight to moderate. But it will have impacts.
Transcript Day 6 at 29, 30.
Bridgewater Power Company, Bridgewater, NH
We're very concerned that the construction of the Laidlaw facility will further undermine our ability to operate. A 70 megawatt plant will have a reach for fuel well over 100 miles and greatly impact our market. Further, the contract being proposed for the facility, in Section 6.1.2, outlines a fuel adjustment that limits fuel risk to the owners and ties the price of fuel to the price of fuel from Schiller Station. Schiller Station is a rate based plant, and fuel risk at that facility is borne by ratepayers. Therefore, the index that the Laidlaw plant is benchmarked against is a facility that has no fuel price risk. Our facility has no such backstop, and never has. Higher fuel prices and pressure on supply will likely force us out of business. It seems that the certainty of existing jobs and existing facilities should be the number one priority, so that existing jobs and benefits of these facilities are not lost or traded for speculative jobs.
Transcript Day 6 at 32.
In view of the foregoing statements from the existing biomass generating facilities, it is clear that the Laidlaw project will severely disrupt the orderly development of the region and will probably cause a net loss of jobs and economic activity.
2. The proposed Laidlaw project will result in the curtailment and/or shutdown of existing generation facilities on the Coos Loop.
Mr. Gabler’s testimony on behalf of CPD on the transmission issues was compelling and uncontroverted by Laidlaw:
The System Impact Study done by ISO-New England, which was Laidlaw Exhibit 56, very -- it shows very explicitly that operation of the Laidlaw Project will result in the curtailment and/or shutdown of the existing generation on the Coos Loop. In the base case assumed for the study, Berlin Hydro, Smith Hydro, and the Whitefield biomass plant would be shut down. In reality, it could be any generator, including LBB, that would be shut down on any given day. And, the resulting disorder to the region would bring a future of uncertainty and economic uncertainty, not only to operating power plants, but fuel suppliers for those projects.
****
The New Hampshire Public Utilities Commission and the North Country Transmission Commission have been studying this issue for about three years, and have heard testimony that a more vibrant upgrade, which would allow operation of all projects, could be in the vicinity of $100 million or possibly more. KEMA is currently working on a study of those cost allocations for the State of New Hampshire.
That draft report was due out last week. It has been delayed and will be out shortly. However, given the sizable cost, Laidlaw has chosen not to pursue that avenue. They have clearly stated in letters to the Transmission Commission that the addition of such costs could well make their project economically unfeasible.
Transcript Day 6 at 48, 49.
Permitting the construction and operation of the proposed Laidlaw plant will clearly impact the orderly development of the region through the resulting imposition of minimum interconnection standards, otherwise known as "MIS", on the region.
D. NewCo is the party responsible for constructing and operating the Project, and accordingly, should be the Applicant.
RSA 162-H:5, I requires that “[n]o person shall commence to construct any energy facility within the state unless it has obtained a certificate pursuant to this chapter. Such facilities shall be constructed, operated and maintained in accordance with the terms of the certificate.”
According to Committee Exhibit No. 1, NewCo Energy, LLC currently owns Aware Energy Funding LLC, which in turn owns 100% of PJPD Holdings, LLC. NewCo will also own 100% of Applicant Laidlaw Berlin Biopower, LLC.
The NewCo Management Board consists of Richard Cyr, Keith Mueller, and Michael Ferree. The NewCo Management Board consists of the same individuals as the Laidlaw Berlin Biopower Management Board. Additionally, according to Committee Exhibit No. 1, Laidlaw Berlin Biopower is a mere “development entity.” In this regard, Mr. Bartoszek explained Applicant’s role in the following manner:
So as a project sponsor our job is to assemble the various components that make a project – a project and a project financing viable, including material contracts permits and things of that nature so that the project essentially pencils out and makes sense. And its not uncommon for then a developer at that stage to make some arrangement to move to the other side as other parties move forward with construction and operation.
Transcript Day 3 at 144, 145.
Under these facts and circumstances, the issue before the Committee is which of the foregoing “persons” is proposing to “construct” the Laidlaw project in Berlin. In order to resolve this issue the Committee must construe RSA 162-H:5, I in light of its underlying policies. As the Committee well knows, the Laidlaw Project will be owned by PJPD. Laidlaw will no longer own the underlying equity in the project. NewCo is the party that will be responsible for the construction and operation of the facility and therefore should be the “person” applying for the Certificate.
Because of the late stage of the proceedings (after discovery was completed by the parties) when the Committee and the parties were notified of this significant change in the Applicant, the Committee should take more time, and should give the parties more time, to obtain information about and analyze the financial, managerial and technical capabilities of the Applicant.
E. The Committee is not authorized to issue a Certificate at this time because it cannot comply with RSA 162-H directives.
The Committee is not authorized to issue a Certificate for the proposed facility at this time because it cannot comply with RSA 162-H directives regarding potential environmental impacts and adverse effects on public health and safety. It is apparent from the scant record on environmental conditions at the site that neither the Committee nor the Department of Environmental Services has made sufficient inquiry into the nature, extent or need to remedy historical contamination that may pose adverse environmental, public health or safety consequences. As discussed below, issuing a Certificate for siting a 70 MW power plant with associated construction and operational activities, based upon the preliminary and incomplete environmental investigations of the site conducted to date, would be premature, at best, and contrary to this Committee’s statutory obligations. Furthermore, any attempt to impose conditions upon the Applicant relating to environmental investigation would be insufficient to address environmental and public health risks, in part because siting a facility of this nature and size in a contaminated area may inhibit future investigation and foreclose the viability of remedial alternatives, including activity and use restrictions. Thus, the Committee should deny the application.
In lieu of denial, the Committee should reopen this proceeding to require the Applicant to conduct and submit additional environmental investigatory information sufficient to assure the Committee that the siting, construction, operation and closure of the proposed facility would not adversely affect public health, safety or the environment.
1. Full environmental review must precede a Certificate
Under RSA 162-H:16, IV, the Committee is required to fully review the environmental impact of the site and must find that the site and facility “will not have an unreasonable adverse effect on … air and water quality, the natural environment, and public health and safety.” RSA 162-H, IV(c). A certificate “shall be conclusive on all questions of siting, land use, air and water quality.” RSA 162-H, II. The record shows that, despite severe contamination of the entire mill area, very little environmental investigation has been performed on the proposed site. The record also shows that further and more complete environmental study is imminent, but will not necessarily be taken into account before construction of the facility begins. This puts the cart before the horse. Under the statute, a certificate may not issue unless and until further investigation allows the Committee to conclude that issuing a certificate for siting a 70 MW power plant would not create adverse risks to health, safety and the environment.
2. The record shows that environmental review is incomplete
The record shows that the proposed project site is contaminated with heavy metals, among other things, and that there has not been a full review of environmental impacts associated with the proposed project. The Applicant’s representative, Mr. Frecker, stated under oath on August 23, 2010, that he was aware of a 2003 investigation conducted by GZA with regard to the site, that 7 of 13 groundwater monitoring wells did not show levels of any metals or organics above groundwater quality standards (which means that 6 did exceed standards) and that GZA recommended additional sampling of groundwater and soil “to determine if levels of mercury which were detected were, in fact, not just associated with natural background because they were only a couple or part per billion above the regulatory standards in the state of New Hampshire.” Transcript of Laidlaw Berlin BioPower, LLC, August 23, 2010, pp 14-15 (hereinafter “Transcript”). A review of the GZA assessment, which was not included in the record as an exhibit, indicates a level of concern far beyond Mr. Frecker’s characterization. See, e.g., GZA GeoEnvironmental, Inc., “Phase II Hydrogeologic Investigation, Burgess Pulp Mill and Cascade Paper Mill, Berlin and Gorham, New Hampshire,” prepared for NHDES, December, 2003 at 27 (“Due to the exceedances of certain AGQS in groundwater samples collected from certain monitoring wells at both sites, and the exceedances of certain S1 soil standards in certain soil samples collected, the Burgess and Cascade Mills should enter the regulatory programs of the New Hampshire Corrective Action process.”)
Mr. Frecker also made reference to the nearby Chlor-Alkali plant where EPA has been doing investigations for mercury contamination, Transcript, pp.12-13, as well as Laidlaw’s intention to “provide a significant level of monetary support and cooperation” in having subsurface and other studies conducted at the site by City of Berlin consultants. Transcript, pp. 11-12. This testimony confirms that the proposed site has not only failed to be included in the state’s corrective action program, as recommended by GZA, but also that further investigation has not been conducted.
These passages raise the issue of whether this Committee can conclude, based upon the current record, that the proposed project will not have an unreasonable effect on public health and safety or the environment. There are at least two investigatory efforts referenced in the record that suggest otherwise, as these efforts would produce the very information that the Committee needs to make the required determination. The first effort is the EPA investigation of hazardous contaminants that have migrated to the site from the upriver Chlor-Alkali plant. According to EPA’s website, these hazards have yet to be fully characterized or assessed in terms of remedial action that might be necessary. See www.epa.gov. The Chlor-Alkali site, which has been listed on Superfund’s National Priorities List as a result of concerns about mercury, dioxin and other hazards, see 70 Fed. Reg. 54286 (September 14, 2005), will undergo years of testing and evaluation that may well result in remediation activities to address health and safety risks. EPA’s website states that at least 135 pounds of mercury and mercury-containing sediments were removed from the Androscoggin River and its bank and that “based on results of testing performed on the site during the Summer of 2009, EPA will begin investigating the area surrounding the site in 2010. It is anticipated that sampling to determine the risk to human health and the environment will occur on the 38-acre area that abuts the former cell house area of the site.” See epa.gov/rl/npl (Waste Site Cleanup & Reuse in New England). EPA’s investigation and subsequent remedial determinations may well extend as far as the proposed facility and may require remediation or activity and use restrictions incompatible with the siting of a 70 MW biomass power plant.
The second investigatory effort is contained in the City of Berlin’s proposed certificate conditions and a Scope of Work submitted by its consultant. See Exh. Berlin 1 (Proposed Certificate Conditions) and Exh. Berlin 1D (Scope of Work for Subsurface Investigation). One condition would require Laidlaw to fully fund the Scope of Work for a Phase II Environmental Site Characterization dated August 10, 2010 but would also allow for construction of the facility while the investigation proceeds. See Exh. Berlin 1, p. 8, par. 13 (“Performance of the Scope of Work shall be conducted, to the greatest extent possible, so as not to interfere with construction of the facility … .”). The August 10, 2010 Scope of Work states that “the City of Berlin currently lacks sufficient information regarding the nature and extent of contamination at the site which may affect potential re-use scenarios.” See Exh. Berlin 1D, p.1. Allowing reuse of the site for construction of a 70 MW power plant before the necessary studies are conducted makes little sense.
Thus, the record of this proceeding demonstrates that issuance of a certificate is premature because the Committee cannot fully review the risks of developing this site, as proposed, nor can it impose appropriate conditions with regard to construction, development or closure until all appropriate investigations and remedial recommendations are completed. See 162-H:16, VI (“A certificate of site and facility may contain such reasonable terms and conditions as the committee deems necessary …”). See also RSA 147-F:12, IV (“The department shall impose such conditions on the redevelopment and use of the property as it finds necessary or proper to assure that the contamination on the site does not pose an unacceptable risk to human health and the environment …”). The City of Berlin’s proposal to require investigation as a condition of approval by this Committee, even while construction proceeds, ignores that the approval itself would foreclose future investigatory or remedial activities that may become necessary. More importantly, the studies may suggest that reuse of the proposed site for construction of a large power plant on contaminated soil and groundwater is inappropriate. Furthermore, the Committee is currently incapable of assessing the risks of actual construction of the project, which could result in exacerbation or additional releases of mercury and other contamination that already exists. See, e.g., Transcript, pp. 9-10 (“you’re not going to really puncture into contaminants that much … correct?).
It is incumbent upon this Committee to seek, review and assess, through authorized state agencies, the results of subsurface investigations and remedial recommendations, including EPA feasibility studies for the Chlor-Alkali plant areas, before issuing a certificate in this proceeding.
3. The Committee should require additional record submissions.
RSA 162-H:10, IV and V authorize the Committee and public counsel to require or to conduct studies deemed necessary and to employ consultants, as appropriate, at the Applicant’s expense. As the proposed project site has not been fully investigated and no plan for remedial action or use restrictions (“remedial action plan” or “RAP”) has been developed under the state’s corrective action programs, it is appropriate for the Committee and public counsel to require the Applicant to fund these efforts and to submit the studies for the record before a final decision is made on the application. See, e.g., RSA 147-F:11, VII (“A remedial action plan shall describe in detail a remedial strategy for the property that shall ensure protection of human health and the environment … .”) The Committee should also reopen the record to allow for submission of documents related to environmental concerns for the proposed site, including but not limited to the GZA report, EPA studies and the City of Berlin’s January 13, 2010 Notice of Intent to Sue PJPD Holdings, LLC under the Resource Conservation and Recovery Act, all of which are referenced in testimony or exhibits but not made part of the record. See, e.g., Exh. Berlin 1, p. 9 (referencing notice of intent to file a citizens’ lawsuit under imminent hazard provisions of RCRA).
Testimony and related exhibits regarding liability protection that the Attorney General’s Office or the City of Berlin might offer the Applicant is irrelevant to this Committee’s statutory obligations and should be disregarded by this Committee in determining whether the proposed project would adversely affect public health, safety or the environment. See, e.g., Transcript, pp. 17-21 and Exh. PC 1 and PC 4; see also Exh. Berlin 1, p.9. Any covenants not to sue issued by the Attorney General’s Office or the city relate only to liability issues and not to the risks presented by this site, which this Committee is obligated to review.
That the liability covenant referenced by public counsel was issued outside of the auspices RSA 147-F, which would normally require RAP approval and subsequent completion of remedial activities before liability protection can extend to the current owner, compare Exh. PC 1, RSA 147-F:12, V and RSA 147-F:13, IV, illustrates that the proceedings conducted to date on environmental issues have been misdirected and wholly inadequate. For these reasons, the record should be reopened and supplemented to allow the Committee to perform a full environmental review before acting on the application.
III. CONCLUSION
For all of the foregoing reasons, the Committee should not grant a Certificate of Site and Facility to Applicant.
Respectfully submitted,
CLEAN POWER DEVELOPMENT,
LLC
By its Attorney,
/s/_James T. Rodier
Dated: September 16, 2010 1500A Lafayette Road, No. 112 Portsmouth, NH 03801-5918
603-559-9987
Certificate Of Service
I hereby certify that I have provided a copy of this Motion for Clarification and/or Rehearing to the Parties on the Service List in this proceeding.
/s/_James T. Rodier
STATE OF NEW HAMPSHIRE
SITE EVALUATION COMMITTEE
Application of Laidlaw Berlin BioPower, LLC for a Certificate of Site and Facility
for a Renewable Energy Facility in Berlin, New Hampshire
SEC Docket No. 2009-02
POST-HEARING BRIEF OF CLEAN POWER DEVELOPMENT, LLC
I. PRELIMINARY STATEMENT
CPD is a New Hampshire limited liability company that focuses on the development of renewable and sustainable wood-fueled biomass-energy facilities. CPD’s offices are located at 130 Pembroke Road, Suite 100, Concord, New Hampshire.
CPD plans to construct, own and operate a biomass facility, Clean Power Berlin, LLC (“CPB Facility”) located in Berlin, New Hampshire, which will generate electricity and steam through the combustion of forest product biomass chips supplied through local markets. The CPB Facility will be capable of generating not more than 29.5MW gross output of electricity. Normal net generation will usually be in the 15 to 22MWw gross output range based upon thermal load during combined heat and power (“CHP”) operation. The CPB Facility can operate with an efficiency of 60% or higher through CHP design.
The site of the CPB Facility is 20 Shelby Street in Berlin, on land adjacent to the City of Berlin Waste Water Treatment Plant. The site of the CPD Facility is on the Androscoggin River, approximately 1 ½ miles downstream from the site of the Laidlaw Project.
On December 16, 2009, Applicant Laidlaw Berlin Biopower, LLC filed an Application with the Site Evaluation Committee for a Certificate of Site and Facility in Berlin, New Hampshire. Hearings were held by the Committee on August 23 through August 27, and on September 10. Clean Power Development, LLC was granted limited intervenor status by the Committee. Order on Pending Motions (March 24, 2010). CPD presented testimony and conducted cross-examination at the hearings. CPD hereby submits its post-trial brief in this proceeding. In this brief, CPD primarily focuses on the key issues which have arisen during the proceeding. By way of supplementation, appended hereto and incorporated herein is the closing statement of CPD made to the Committee on September 10, 2010. Transcript Day 6 at 85 to 102.
II. ARGUMENT
A. Applicant cannot be granted a Certificate of Site and Approval unless and until the Purchase Power Agreement (PPA) is approved by the New Hampshire Public Utilities Commission (NHPUC).
The Committee can only issue a Certificate of Site and Facility if it can make a finding that the Applicant has adequate financial capability to assure construction and operation of the facility. See, RSA 162-H:16, IV(a). According to Applicant’s Testimony, “nder RSA 162-H:16, in order to obtain a Certificate of Site and Facility the Applicant must show that it has adequate financial capability to construct and operate the Project in compliance with the terms and conditions of the Certificate.” Testimony of Michael B. Bartoszek at 4. Stated differently, an applicant cannot obtain a certificate unless it can show that it has adequate financial capability.
According to Applicant,
[t]he ongoing operations of the Project will largely be supported by the cash flows generated from a long-term Power Purchase Agreement (“PPA”) that is being finalized with Public Service Company of New Hampshire (“PSNH”) pursuant to an executed Letter of Intent. The PPA is an essential element of the Project’s financial viability and will be the dominant positive factor in securing the debt financing.
Application at 92 (Emphasis added).
Moreover, the Applicant provided the following response to a data request from Public Counsel:
14. Is a PPA necessary in order to make the Project financially viable?
Response: Yes.
Laidlaw Exh. 17
Pursuant to RSA 362-F:9, the PPA requires approval from the NHPUC before it can become effective. Accordingly, since Applicant has stated that the “PPA is an essential element of the Project’s financial viability,” the Applicant will not be able to demonstrate “adequate financial capability” unless and until the PPA is approved by the NHPUC.
In its Application, Laidlaw stated that:
Similar to the Committee’s course of action in Granite Reliable Power, LLC (Decision Granting Certificate of Site and Facility With Conditions, July 15, 2009, Docket No. 2008-04), the Applicant would be willing to accept a certificate condition that prohibits the commencement of construction until all construction financing is in place.
Testimony of Michael B. Bartoszek at 8.
Laidlaw’s reliance on the Committee’s Decision in the Granite Reliable Power, LLC proceeding is misplaced. In that Decision, the Committee found that:
[t]he Applicant has demonstrated, by a preponderance of the evidence, that is has the financial capability to finance, construct and operate the project. Nonetheless, all parties agree that the current market for financing such projects is challenging. Therefore, the Subcommittee determines that the Applicant must have committed construction financing for the project in place before construction may commence.
Decision, SEC Docket No. 2008-04, at 32 (Emphasis added.)
Granite Reliable Power, LLC was able to satisfactorily demonstrate to the Committee that it had the present capability to finance, construct and operate its project, based in large part on its experience in developing a number of other wind power projects. In contrast, based upon its Application and Testimony, Laidlaw Berlin Biopower, LLC (or NewCo. – see argument below), an entity that has not developed other biomass projects, will not possess, as it must, the requisite financial capability to finance, construct and operate its proposed project unless and until the PPA is approved by the NHPUC. While the NHPUC has opened this docket, there has not yet been a prehearing conference, the deadline for the submission of interventions has yet to come, and no schedule has yet been set for the docket. It is likely to take at a minimum, a number of months to resolve.
B. RSA 162-H: 16, IV requires that the Committee must consider “available alternatives” and, other relevant factors bearing on whether the objectives of RSA 162-H would be best served by the issuance of the Certificate.
New Hampshire’s siting statute, RSA Chapter 162-H, has as its fundamental purpose the selection and utilization of appropriate sites for new bulk power and energy facilities. In enacting Chapter 162-H, the legislature recognized “that the selection of sites for energy facilities… will have a significant impact upon the welfare of the population, the location and growth of industry, the overall economic growth of the state, the environment of the state, and the use of natural resources.” RSA 162:H-1 (Emphasis supplied). Accordingly, the Legislature determined that it is in the public interest to:
(a) to maintain a balance between the environment and the need for new energy facilities; (b) to avoid undue delay in the construction of needed facilities and to ensure full and timely consideration of environmental consequences; (c) to ensure that all entities planning to construct facilities provide full and complete disclosure to the public of such plans; and (d) to ensure that the construction and operation of energy facilities is treated as a significant aspect of land-use planning in which all environmental, economic, and technical issues are resolved in an integrated fashion.
Id. (Emphasis supplied.)
New Hampshire’s siting statute also sets forth the framework and criteria to be used by the Site Evaluation Committee in evaluating whether to issue a certificate of site and facility:
The site evaluation committee, after having considered available alternatives and fully reviewed the environmental impact of the site or route, and other relevant factors bearing on whether the objectives of this chapter would be best served by the issuance of the certificate, must find that the site and facility:
(a) Applicant has adequate financial, technical, and managerial capability to assure construction and operation of the facility in continuing compliance with the terms and conditions of the certificate.
(b) Will not unduly interfere with the orderly development of the region with due consideration having been given to the views of municipal and regional planning commissions and municipal governing bodies.
(c) Will not have an unreasonable adverse effect on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety.
RSA 162:H-16, IV (Emphasis added.)
In a recent decision, the Supreme Court explained the well-settled fundamental tenets of statutory construction:
In matters of statutory interpretation, we are the final arbiters of the legislature’s intent as expressed in the words of the statute considered as a whole. We interpret statutes not in isolation, but in the context of the overall statutory scheme. Our analysis must start with consideration of the plain meaning of the relevant statutes, construing them, where reasonably possible, to effectuate their underlying policies. Insofar as reasonably possible, we will construe the various statutory provisions harmoniously.
In re Pennichuck Water Works, Inc., 160 N.H. 18, 992 A.2d 740 (N.H. 2010).
Accordingly, in deciding whether to issue the proposed Laidlaw project a certificate of site and facility, the Committee must construe the statutory term “after having considered available alternatives”, in a manner consistent with the purposes of the siting statute: to wit, “to maintain a balance between the environment and the need for new energy facilities.” It would be an error of law for the Committee to not consider all available alternatives to the Laidlaw Project to balance environment impact and new energy facilities. One such alternative that should be considered by the Committee is the Clean Power Development project proposed for Berlin on the site of the Berlin Waste Water Treatment Facility. Alternatives such as the Clean Power Development project must be considered and evaluated by the Committee in order for it to determine the optimum balance between the environment and the need to construct new energy facilities.
CPD also submits that as part of this analysis of alternatives, the Committee should consider the alternatives of continuation of existing biomass facilities, as compared with the construction and operation of a new Laidlaw facility, since, as noted below, there was testimony to the effect that construction of the Laidlaw facility will put existing biomass facilities out of business.
C. Applicant’s proposed facility will interfere with the orderly development of the region.
In deciding whether to issue the proposed Laidlaw project a Certificate of Site and Facility, the Committee must construe the statutory term “orderly development of the region”, in a manner that, inter alia, does not negatively impact the location and growth of industry and ensures that “all environmental, economic, and technical issues are resolved in an integrated fashion.”
1. The proposed Laidlaw project will negatively impact the existing biomass generating facilities resulting in the loss of jobs and economic activity.
The central issue in this proceeding was succinctly and accurately articulated in the following brief exchange between Committee member Michael Harrington and Mel Liston, General Manager of CPD:
BY MR. HARRINGTON:
Q. Getting back to a couple specific questions.
It seems as if the testimony we've heard on the availability of wood has been one constant throughout, given by Laidlaw, their experts and yourself, and that is: If you're willing to spend enough money, there's plenty of wood. Do you agree that's correct?
A. That's correct.
Q. So, rather than harp on how much is available and from what mileage, it really comes down to price.
Transcript Day 5 at 116.
CPD repeatedly stated during the hearings that if the Laidlaw project went forward, and the NHPUC approved the proposed PPA between PSNH and Laidlaw, then CPD would be unable to continue with its proposed combined heat and power project to be located in Berlin. CPD’s statements were echoed by a number of the existing biomass generating facilities and their representatives:
Indeck-Alexandria Energy, Alexandria, N.H.
Indeck’s ability to compete as a merchant generating facility in New Hampshire is directly impacted by the development of the Laidlaw project and the purchase power agreement with Public Service
Transcript Day 5 at 175.
D. G. Whitefield Biomass Power Plant, Whitefield, N.H.
D. G. Whitefield will be at a competitive disadvantage with this proposed large-scale biomass facility, particularly if the Laidlaw facility benefits from an above-market rate order that includes fuel cost recovery mechanisms. This would effectively allow Laidlaw to pass through regulator-approved fuel costs to captive electricity customers. This presents an unfair competitive advantage that threatens the continued viability of D.G. Whitefield.
Transcript Day 5 at 209, 210.
Concord Steam Corporation
What we, essentially, what we create, if we allow this to go forward, is one buyer, and I know it's Laidlaw, but, effectively, it's PSNH. We've got one buyer, with two plants, that will control well over 50 percent of the wood supply in the marketplace in New Hampshire. And, allowing them to have a contract with Cousineau throws another monkey wrench in the works. And, I think it's going to create some real problems for us to continue to get wood supply at a reasonable rate. I have ratepayers I have to be concerned for. And, I think this is going to severely affect our ability to protect their interests.
Transcript Day 6 at 15.
Robert Berti, North Country Procurement
So, my thoughts on it, knowing what the present price of electricity is, and what the plants can pay, and what's available, I think that, if that Laidlaw Project goes in, the impacts on two existing will be severe. The impact on two other plants will be moderate to severe. And, two other plants will be slight to moderate. But it will have impacts.
Transcript Day 6 at 29, 30.
Bridgewater Power Company, Bridgewater, NH
We're very concerned that the construction of the Laidlaw facility will further undermine our ability to operate. A 70 megawatt plant will have a reach for fuel well over 100 miles and greatly impact our market. Further, the contract being proposed for the facility, in Section 6.1.2, outlines a fuel adjustment that limits fuel risk to the owners and ties the price of fuel to the price of fuel from Schiller Station. Schiller Station is a rate based plant, and fuel risk at that facility is borne by ratepayers. Therefore, the index that the Laidlaw plant is benchmarked against is a facility that has no fuel price risk. Our facility has no such backstop, and never has. Higher fuel prices and pressure on supply will likely force us out of business. It seems that the certainty of existing jobs and existing facilities should be the number one priority, so that existing jobs and benefits of these facilities are not lost or traded for speculative jobs.
Transcript Day 6 at 32.
In view of the foregoing statements from the existing biomass generating facilities, it is clear that the Laidlaw project will severely disrupt the orderly development of the region and will probably cause a net loss of jobs and economic activity.
2. The proposed Laidlaw project will result in the curtailment and/or shutdown of existing generation facilities on the Coos Loop.
Mr. Gabler’s testimony on behalf of CPD on the transmission issues was compelling and uncontroverted by Laidlaw:
The System Impact Study done by ISO-New England, which was Laidlaw Exhibit 56, very -- it shows very explicitly that operation of the Laidlaw Project will result in the curtailment and/or shutdown of the existing generation on the Coos Loop. In the base case assumed for the study, Berlin Hydro, Smith Hydro, and the Whitefield biomass plant would be shut down. In reality, it could be any generator, including LBB, that would be shut down on any given day. And, the resulting disorder to the region would bring a future of uncertainty and economic uncertainty, not only to operating power plants, but fuel suppliers for those projects.
****
The New Hampshire Public Utilities Commission and the North Country Transmission Commission have been studying this issue for about three years, and have heard testimony that a more vibrant upgrade, which would allow operation of all projects, could be in the vicinity of $100 million or possibly more. KEMA is currently working on a study of those cost allocations for the State of New Hampshire.
That draft report was due out last week. It has been delayed and will be out shortly. However, given the sizable cost, Laidlaw has chosen not to pursue that avenue. They have clearly stated in letters to the Transmission Commission that the addition of such costs could well make their project economically unfeasible.
Transcript Day 6 at 48, 49.
Permitting the construction and operation of the proposed Laidlaw plant will clearly impact the orderly development of the region through the resulting imposition of minimum interconnection standards, otherwise known as "MIS", on the region.
D. NewCo is the party responsible for constructing and operating the Project, and accordingly, should be the Applicant.
RSA 162-H:5, I requires that “[n]o person shall commence to construct any energy facility within the state unless it has obtained a certificate pursuant to this chapter. Such facilities shall be constructed, operated and maintained in accordance with the terms of the certificate.”
According to Committee Exhibit No. 1, NewCo Energy, LLC currently owns Aware Energy Funding LLC, which in turn owns 100% of PJPD Holdings, LLC. NewCo will also own 100% of Applicant Laidlaw Berlin Biopower, LLC.
The NewCo Management Board consists of Richard Cyr, Keith Mueller, and Michael Ferree. The NewCo Management Board consists of the same individuals as the Laidlaw Berlin Biopower Management Board. Additionally, according to Committee Exhibit No. 1, Laidlaw Berlin Biopower is a mere “development entity.” In this regard, Mr. Bartoszek explained Applicant’s role in the following manner:
So as a project sponsor our job is to assemble the various components that make a project – a project and a project financing viable, including material contracts permits and things of that nature so that the project essentially pencils out and makes sense. And its not uncommon for then a developer at that stage to make some arrangement to move to the other side as other parties move forward with construction and operation.
Transcript Day 3 at 144, 145.
Under these facts and circumstances, the issue before the Committee is which of the foregoing “persons” is proposing to “construct” the Laidlaw project in Berlin. In order to resolve this issue the Committee must construe RSA 162-H:5, I in light of its underlying policies. As the Committee well knows, the Laidlaw Project will be owned by PJPD. Laidlaw will no longer own the underlying equity in the project. NewCo is the party that will be responsible for the construction and operation of the facility and therefore should be the “person” applying for the Certificate.
Because of the late stage of the proceedings (after discovery was completed by the parties) when the Committee and the parties were notified of this significant change in the Applicant, the Committee should take more time, and should give the parties more time, to obtain information about and analyze the financial, managerial and technical capabilities of the Applicant.
E. The Committee is not authorized to issue a Certificate at this time because it cannot comply with RSA 162-H directives.
The Committee is not authorized to issue a Certificate for the proposed facility at this time because it cannot comply with RSA 162-H directives regarding potential environmental impacts and adverse effects on public health and safety. It is apparent from the scant record on environmental conditions at the site that neither the Committee nor the Department of Environmental Services has made sufficient inquiry into the nature, extent or need to remedy historical contamination that may pose adverse environmental, public health or safety consequences. As discussed below, issuing a Certificate for siting a 70 MW power plant with associated construction and operational activities, based upon the preliminary and incomplete environmental investigations of the site conducted to date, would be premature, at best, and contrary to this Committee’s statutory obligations. Furthermore, any attempt to impose conditions upon the Applicant relating to environmental investigation would be insufficient to address environmental and public health risks, in part because siting a facility of this nature and size in a contaminated area may inhibit future investigation and foreclose the viability of remedial alternatives, including activity and use restrictions. Thus, the Committee should deny the application.
In lieu of denial, the Committee should reopen this proceeding to require the Applicant to conduct and submit additional environmental investigatory information sufficient to assure the Committee that the siting, construction, operation and closure of the proposed facility would not adversely affect public health, safety or the environment.
1. Full environmental review must precede a Certificate
Under RSA 162-H:16, IV, the Committee is required to fully review the environmental impact of the site and must find that the site and facility “will not have an unreasonable adverse effect on … air and water quality, the natural environment, and public health and safety.” RSA 162-H, IV(c). A certificate “shall be conclusive on all questions of siting, land use, air and water quality.” RSA 162-H, II. The record shows that, despite severe contamination of the entire mill area, very little environmental investigation has been performed on the proposed site. The record also shows that further and more complete environmental study is imminent, but will not necessarily be taken into account before construction of the facility begins. This puts the cart before the horse. Under the statute, a certificate may not issue unless and until further investigation allows the Committee to conclude that issuing a certificate for siting a 70 MW power plant would not create adverse risks to health, safety and the environment.
2. The record shows that environmental review is incomplete
The record shows that the proposed project site is contaminated with heavy metals, among other things, and that there has not been a full review of environmental impacts associated with the proposed project. The Applicant’s representative, Mr. Frecker, stated under oath on August 23, 2010, that he was aware of a 2003 investigation conducted by GZA with regard to the site, that 7 of 13 groundwater monitoring wells did not show levels of any metals or organics above groundwater quality standards (which means that 6 did exceed standards) and that GZA recommended additional sampling of groundwater and soil “to determine if levels of mercury which were detected were, in fact, not just associated with natural background because they were only a couple or part per billion above the regulatory standards in the state of New Hampshire.” Transcript of Laidlaw Berlin BioPower, LLC, August 23, 2010, pp 14-15 (hereinafter “Transcript”). A review of the GZA assessment, which was not included in the record as an exhibit, indicates a level of concern far beyond Mr. Frecker’s characterization. See, e.g., GZA GeoEnvironmental, Inc., “Phase II Hydrogeologic Investigation, Burgess Pulp Mill and Cascade Paper Mill, Berlin and Gorham, New Hampshire,” prepared for NHDES, December, 2003 at 27 (“Due to the exceedances of certain AGQS in groundwater samples collected from certain monitoring wells at both sites, and the exceedances of certain S1 soil standards in certain soil samples collected, the Burgess and Cascade Mills should enter the regulatory programs of the New Hampshire Corrective Action process.”)
Mr. Frecker also made reference to the nearby Chlor-Alkali plant where EPA has been doing investigations for mercury contamination, Transcript, pp.12-13, as well as Laidlaw’s intention to “provide a significant level of monetary support and cooperation” in having subsurface and other studies conducted at the site by City of Berlin consultants. Transcript, pp. 11-12. This testimony confirms that the proposed site has not only failed to be included in the state’s corrective action program, as recommended by GZA, but also that further investigation has not been conducted.
These passages raise the issue of whether this Committee can conclude, based upon the current record, that the proposed project will not have an unreasonable effect on public health and safety or the environment. There are at least two investigatory efforts referenced in the record that suggest otherwise, as these efforts would produce the very information that the Committee needs to make the required determination. The first effort is the EPA investigation of hazardous contaminants that have migrated to the site from the upriver Chlor-Alkali plant. According to EPA’s website, these hazards have yet to be fully characterized or assessed in terms of remedial action that might be necessary. See www.epa.gov. The Chlor-Alkali site, which has been listed on Superfund’s National Priorities List as a result of concerns about mercury, dioxin and other hazards, see 70 Fed. Reg. 54286 (September 14, 2005), will undergo years of testing and evaluation that may well result in remediation activities to address health and safety risks. EPA’s website states that at least 135 pounds of mercury and mercury-containing sediments were removed from the Androscoggin River and its bank and that “based on results of testing performed on the site during the Summer of 2009, EPA will begin investigating the area surrounding the site in 2010. It is anticipated that sampling to determine the risk to human health and the environment will occur on the 38-acre area that abuts the former cell house area of the site.” See epa.gov/rl/npl (Waste Site Cleanup & Reuse in New England). EPA’s investigation and subsequent remedial determinations may well extend as far as the proposed facility and may require remediation or activity and use restrictions incompatible with the siting of a 70 MW biomass power plant.
The second investigatory effort is contained in the City of Berlin’s proposed certificate conditions and a Scope of Work submitted by its consultant. See Exh. Berlin 1 (Proposed Certificate Conditions) and Exh. Berlin 1D (Scope of Work for Subsurface Investigation). One condition would require Laidlaw to fully fund the Scope of Work for a Phase II Environmental Site Characterization dated August 10, 2010 but would also allow for construction of the facility while the investigation proceeds. See Exh. Berlin 1, p. 8, par. 13 (“Performance of the Scope of Work shall be conducted, to the greatest extent possible, so as not to interfere with construction of the facility … .”). The August 10, 2010 Scope of Work states that “the City of Berlin currently lacks sufficient information regarding the nature and extent of contamination at the site which may affect potential re-use scenarios.” See Exh. Berlin 1D, p.1. Allowing reuse of the site for construction of a 70 MW power plant before the necessary studies are conducted makes little sense.
Thus, the record of this proceeding demonstrates that issuance of a certificate is premature because the Committee cannot fully review the risks of developing this site, as proposed, nor can it impose appropriate conditions with regard to construction, development or closure until all appropriate investigations and remedial recommendations are completed. See 162-H:16, VI (“A certificate of site and facility may contain such reasonable terms and conditions as the committee deems necessary …”). See also RSA 147-F:12, IV (“The department shall impose such conditions on the redevelopment and use of the property as it finds necessary or proper to assure that the contamination on the site does not pose an unacceptable risk to human health and the environment …”). The City of Berlin’s proposal to require investigation as a condition of approval by this Committee, even while construction proceeds, ignores that the approval itself would foreclose future investigatory or remedial activities that may become necessary. More importantly, the studies may suggest that reuse of the proposed site for construction of a large power plant on contaminated soil and groundwater is inappropriate. Furthermore, the Committee is currently incapable of assessing the risks of actual construction of the project, which could result in exacerbation or additional releases of mercury and other contamination that already exists. See, e.g., Transcript, pp. 9-10 (“you’re not going to really puncture into contaminants that much … correct?).
It is incumbent upon this Committee to seek, review and assess, through authorized state agencies, the results of subsurface investigations and remedial recommendations, including EPA feasibility studies for the Chlor-Alkali plant areas, before issuing a certificate in this proceeding.
3. The Committee should require additional record submissions.
RSA 162-H:10, IV and V authorize the Committee and public counsel to require or to conduct studies deemed necessary and to employ consultants, as appropriate, at the Applicant’s expense. As the proposed project site has not been fully investigated and no plan for remedial action or use restrictions (“remedial action plan” or “RAP”) has been developed under the state’s corrective action programs, it is appropriate for the Committee and public counsel to require the Applicant to fund these efforts and to submit the studies for the record before a final decision is made on the application. See, e.g., RSA 147-F:11, VII (“A remedial action plan shall describe in detail a remedial strategy for the property that shall ensure protection of human health and the environment … .”) The Committee should also reopen the record to allow for submission of documents related to environmental concerns for the proposed site, including but not limited to the GZA report, EPA studies and the City of Berlin’s January 13, 2010 Notice of Intent to Sue PJPD Holdings, LLC under the Resource Conservation and Recovery Act, all of which are referenced in testimony or exhibits but not made part of the record. See, e.g., Exh. Berlin 1, p. 9 (referencing notice of intent to file a citizens’ lawsuit under imminent hazard provisions of RCRA).
Testimony and related exhibits regarding liability protection that the Attorney General’s Office or the City of Berlin might offer the Applicant is irrelevant to this Committee’s statutory obligations and should be disregarded by this Committee in determining whether the proposed project would adversely affect public health, safety or the environment. See, e.g., Transcript, pp. 17-21 and Exh. PC 1 and PC 4; see also Exh. Berlin 1, p.9. Any covenants not to sue issued by the Attorney General’s Office or the city relate only to liability issues and not to the risks presented by this site, which this Committee is obligated to review.
That the liability covenant referenced by public counsel was issued outside of the auspices RSA 147-F, which would normally require RAP approval and subsequent completion of remedial activities before liability protection can extend to the current owner, compare Exh. PC 1, RSA 147-F:12, V and RSA 147-F:13, IV, illustrates that the proceedings conducted to date on environmental issues have been misdirected and wholly inadequate. For these reasons, the record should be reopened and supplemented to allow the Committee to perform a full environmental review before acting on the application.
III. CONCLUSION
For all of the foregoing reasons, the Committee should not grant a Certificate of Site and Facility to Applicant.
Respectfully submitted,
CLEAN POWER DEVELOPMENT,
LLC
By its Attorney,
/s/_James T. Rodier
Dated: September 16, 2010 1500A Lafayette Road, No. 112 Portsmouth, NH 03801-5918
603-559-9987
Certificate Of Service
I hereby certify that I have provided a copy of this Motion for Clarification and/or Rehearing to the Parties on the Service List in this proceeding.
/s/_James T. Rodier
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