By GARRY RAYNO, InDepthNH.org
CONCORD — Intervenors to the Antrim Wind Energy project want the Site Evaluation Committee to suspend the construction certificate it approved for the project.
In a request for declaratory judgment, 104 petitioners want regulators to address financing issues and if the sale of the project to a Canadian firm would impact the validity of the certificate and its conditions.
Intervenors and the Counsel for the Public objected to the protocol used several months ago to determine project developers satisfied financing conditions that allow project construction to begin. InDepthNH.org erroneously reported Tuesday that no petition had been filed, but one had been filed in a new docket.
SEC administrator Pamela Monroe determined two letters from the parent company of the developers were sufficient to comply with the condition funding in place before construction began, although it was different from the financial arrangement presented to the SEC during adjudicative hearings.
The petitioners claim the SEC does not have authority to delegate the compliance decision to its administrator, and the docket should remain open so the public can question whether certificate conditions have been satisfied as occurred with the Groton Wind Project and outlined in a separate Supreme Court case involving a municipal planning board.
They also asked the Site Evaluation Committee to waiver its $3,000 fee to open a docket for the declaratory ruling saying “acts to deprive them of a fundamental right and deprive them of their rights to seek redress under the New Hampshire Constitution.”
And the petitioners are concerned about transparency both for the sale and financing of the project to produce 29 megawatts of electricity with nine turbines on Turtle Hill in Antrim.
“The Petitioners are concerned that such a protocol will not allow the Petitioners a practical means by which to present their concerns to the SEC and effectively shields compliance related matters from public review and scrutiny,” attorney Eric A. Maher writes for the petitioners. “Due to the purported safeguards set forth in the Certificate related to sound and shadow flicker mitigation, compliance protocols are of paramount importance to ensuring that this Project does not adversely impact the public health and safety.”
Petitioners also note sale information has been filed with the SEC but has not been shared with intervenors or the Counsel for the Public.
“AWE has informed the SEC, through the SEC’s administrator, of the proposed sale; however, such information has not been disseminated to the public, nor have any further hearings been scheduled to determine whether the proposed buyer, TransAlta, meets the qualifications set forth in RSA 162-H:16,” Maher writes in the petition.
According to a Feb. 20 press release by Canadian energy giant TransAlta, the company has agreed to purchase the Antrim project along with another wind farm ready for construction in Pennsylvania.
Without naming Antrim Wind, the TransAlta press release cites a 29 megawatt, construction-ready project in New Hampshire with two 20-year purchased power contracts.
The description describes the Antrim Wind project which the Site Evaluation Committee approved last year for 29 megawatts and with purchase power agreements with the New Hampshire Electric Coop and Partners HealthCare.
TransAlta, formerly Calgary Power, is Canada’s largest investor-owned renewable energy provider with wind and hydro facilities in Ontario, Quebec, New Brunswick, Alberta and British Columbia.
In an earlier filing, Antrim Wind Energy attorney Barry Needleman said an open docket would allow the intervenors to challenge all 200 conditions of the project.
“The Complainants are in effect asserting that they have a right to challenge every one of these conditions as they are implemented by the Committee,” Needleman wrote. “There is no basis for such a claim.”
Last month, SEC chair Martin Honigberg ruled the docket was closed.
“At this time, the Site Evaluation Committee has completed its exercise of authority in Docket No. 2015-02. A certificate was granted, motions for rehearing were denied, and the matter is on appeal at the New Hampshire Supreme Court,” Honigberg wrote in the March 27 order. “This is not an open docket.”
The committee’s rules were followed for determining if there is a violation of a condition, he said. To request a review of a decision by the SEC’s administrator requires a petition for a declaratory ruling, Honigberg wrote.
In their request, petitioners said there is nothing in statute that allows the SEC to delegate authority to determine compliance with certificate conditions, and asks the committee to declare its rules allowing the administrator to determine compliance invalid.
Honigberg has appointed himself presiding officer and named Department of Environmental Services Commissioner Robert Scott, and public SEC member Patricia Weathersby as the sub-committee to hear the petition.
Although no meeting has been scheduled state agencies have until April 20 to designate who will sit for the hearings and for the Attorney General to determine if he wants to appoint a Counsel for the Public.
The project was approved last year after it had been originally denied by the SEC. Intervenors appealed the decision to the Supreme Court.
Oral arguments on the Supreme Court appeal of the SEC’s decision to approve the project were held in January. The court has yet to issue a decision.
Garry Rayno may be reached at firstname.lastname@example.org