The Energy Facilities Siting Board (EFSB) held a hearing on Thursday in Warwick to begin hearings on whether or not a proposed expansion of Sea 3 Providence, a propane company located in the Port of Providence, is a major expansion mandating a full review by the EFSB or a minor upgrade the EFSB need not concern themselves with.
Sea 3 Providence seeks “to incorporate an adjacent vacant lot into the daily operation of its existing terminal to acquire LPG [Liquid Propane Gas] by rail, in addition to its current means of obtaining supply from marine vessels. The proposal also seeks to install piping and equipment to allow for the offloading of LPG rail shipments into six proposed new 90,000-gallon horizontal storage bullet tanks on the adjacent vacant property. These rail shipments would arrive daily and increase the facility’s ability to fuel trucks, potentially resulting in additional pollution and congestion to the Port area.”
The Rhode Island Attorney General’s Office, the City of Providence and the environmental legal group CLF all maintain that Sea 3 Providence’s plans constitute a major expansion that needs to be fully vetted by the EFSB. Sea 3 Providence has filed a petition to be excused from EFSB oversight.
Here’s the video:
At Thursday’s hearing the three person Energy Facilities Siting Board was made up of only two members, Public Utilities Commission Chair Ronald Gerwatowski and Associate Director of the Division of Planning Meredith Brady. With the Department of Environmental Management (DEM) between directors the third seat was vacant.
In order to understand these proceedings it’s important to understand exactly what the EFSB is and why it was created. The EFSB was created in 1986 to prevent local communities from stopping the development of polluting fossil fuel facilities. As UpriseRI wrote in 2016, quoting CLF Senior Attorney Jerry Elmer, the EFSB “was designed to take the power to stop a proposal like Invenergy’s out of the hands of the local people… and put it into the hands of the EFSB.”
The legislator who pushed hard to create the EFSB in 1986, Senator Victoria Lederberg (Democrat, Providence) called the EFSB “one-stop shopping” for energy companies looking to build in Rhode Island. The entire idea of the EFSB is to override community concerns and to override the DEM’s ability to veto projects that hurt the environment.
This is why Chair Gerwatowksi spent the first few minutes of the hearing explaining why the EFSB was denying intervenor status to The People’s Port Authority, a neighborhood environmental group that opposes the expansion of polluting, scrap metal and fossil fuel industries in the Port. Chair Gerwatowksi’s argument for denying The People’s Port Authority basically came down to the group having too little money to be represented by a lawyer.
The People’s Port Authority maintained in their brief that denial of intervenor status for the group raises “significant equity concerns.” Nevertheless, citing rules, laws and regulations meant to keep people and groups like The Peoples Port Authority out of such proceedings and reduce all public input to easily disregarded “comments” – Chair Gerwatowksi denied the motion to intervene.
Representing Sea 3 Providence was Nicholas Hemond, from the law firm DarrowEverett LLP in Providence, Rhode Island. Hemond is a lobbyist and also chairs the Providence School Board, helping to oversea the education and health of the same Providence school children the proposed Sea 3 Providence expansion threatens. Hemond’s legal services were paid for by Michael Day, the CEO of Sea 3 Providence and Blackline Partners. Also present was Sea 3 Providence’s Terminal Manager Ryan Boyle and two engineers from Sea 3 Providence’s engineering team.
Representing the Rhode Island Attorney General’s Office were Special Assistant Attorney Generals Nicholas Vaz and Alison Hoffman.
Representing CLF was Attorney James Crowley.
Representing the City of Providence was City Solicitor Jeffrey Dana and Senior Assistant City Solicitor Megan DiSanto.
“We are NOT deciding whether or not there should be more expansion of the Port of Providence,” said Chair Gerwatowksi. “That is not within the authority of [the EFSB]. We are not making a determination on whether we should or should not [have] businesses operating in the Port of Providence. That is not within the authority of the board.”
If the EFSB determines that it has jurisdiction over this proposed expansion of the Sea 3 Providence facility, the the project will move onto a full licensing review. “If we find no jurisdiction, then this docket ends and we would have no authority to take further action,” said Chair Gerwatowksi.
The decision before the EFSB then, is extremely narrow: Does the EFSB have jurisdiction, and is Sea 3 Providence’s proposed expansion significant in terms of increased environmental and health impacts? Complicating the matter is that Sea 3 Providence and the three parties opposing Sea 3 Providence don’t only disagree on the application of the law, but they disagree on major facts in the case.
Getting through all this will require require the scheduling of evidentiary hearings before a decision by the EFSB can be made.
Chair Gerwatowksi presented a list of questions he has about how the law governing the EFSB, the Energy Facilities Climate Act (EFSA), should be interpreted. For instance, the definition of an “alteration” under the EFSA means “significant modification” that “will result” in a “significant impact” on the environment or the public’s health, safety and welfare. Given this,
- What standard of probability should be applied to the words “will result”?
- What standard should the EFSB apply to determine whether an impact is significant?
- What other government agencies have oversight of this project? To what extent do these other groups lack the expertise and authority to appropriately and competently address the various impacts identified by the intervenors?
- Does the ability of the City, DEM and CRMC to address an environmental impact influence the decision as to whether an impact is significant or not?
- Does the recently passed 2021 Act on Climate legislation apply to the EFSB’s determination of jurisdiction?
Nicholas Hemond for Sea 3 Providence
Hemond started with two interesting tidbits: The site Sea 3 Providence currently occupies is a very old propane site, preceding the creation of the EFSB in 1986 and, since its creation, not a lot of propane proposals have been brought before the EFSB.
“An extensive permitting and approval process awaits us,” said Hemond, citing DEM, Coastal Resources Management Council (CRMC), Providence Development Plan Review and an administrative review involving a few different city departments, as well as a review of the site plan. Hemond added that propane facilities in general are subject to the direct regulation of the fire safety board and the state fire marshall…
“None of this gets done under the cover of dark,” said Hemond. “There is the watchful eye of government and there should be. I myself live in the City of Providence. My office in downtown looks right out into the Port itself and the 19 million gallon storage tanks that’s there…
“We don’t believe that this project will have a significant impact on the environment, public health, safety or welfare,” said Hemond. “This terminal… exists deep within ProvPort. It’s on the tail end on ProvPort…”
Hemond dropped that Sea 3 Providence recently gave tours to members of the Rhode Island Attorney General’s office and local politicians to show that what is there now, compared to expansion plans, is not a material difference.
People attending the hearing could be heard bristling at Hemond’s suggestion that a new technology, “renewable propane” will allow net zero propane emissions in the not too distant future. Chair Gerwatowksi called for order.
“Everything about this is about meeting those goals that had been outlined by the state during the General Assembly session while our plans were in the works and while our petition is pending before you,” said Hemond, referring to the recently passed 2021 Act on Climate legislation. “Everything we’re trying to do is to be in line with those goals – reduction of emissions, increasing renewable resources – but making sure that we have what we need for customers.”
Hemond described the process of receiving propane by ship as opposed to receiving propane by train. Since propane by ship comes in refrigerated, the propane has to be heated before it can be put onto transport trucks. Rail propane doesn’t need to be heated. So the emissions associated with heating the propane can be reduced by one-third if half the propane delivered to Sea 3 Providence comes in by rail.
“If there was any [environmental] impact it would be an impact in a positive direction,” said Hemond.
Special Assistant Attorney General Nicholas Vaz
“The Port of Providence is a community that is disparately affected by pollution,” said Special Assistant Attorney General Vaz. “It’s an area that’s already been designated as an industrial port. A lot of things are already there emitting a lot of different pollution and that results in significant health and safety concerns. Everything new in the Port of Providence has the potential to seriously affect the people in the community [and] the safety of the people in the community.”
EFSB’s role is to see this development as a “full picture” said Special Assistant Attorney General Vaz, not as a series of discrete decisions by all these other agencies (DEM, CRMC, Fire Marshall, etc) who only take on a small slice of the project as it conforms to existing statute.
CLF Attorney James Crowley
The project “will have a significant impact on the environment and particularly on the state’s ability to achieve its greenhouse gas emissions reduction mandates” and it “will have significant public health and safety impacts on a host community that is already severely overburdened by pollution,” said CLF Attorney James Crowley.
The recently passed 2021 Act on Climate legislation, maintained Crowley, “grants state agencies like [the EFSB] the power, the duty and the obligation to address impacts on climate change in exercising their powers…
“In order to reduce and ultimately eliminate emissions from heating in less than 30 years, Rhode Island has to urgently figure out how to get off gas, oil, propane and other polluting fossil fuels for heating,” continued Crowley. “So against this backdrop of an urgent need to decarbonize heating in Rhode Island, two of the stated goals of this project are to make propane more attractive as a heating option for Rhode Islanders and to incentivize Rhode Islanders who currently heat with other fuels to covert to propane.
“Sea 3 Providence describes its project as ‘clean propane.’ … they even go so far as to claim, several times, that it’s cleaner than heating with electricity,” noted Crowley. “There’s no citation for this and that’s because it’s not true. A 2020 analysis by the Sierra Club indicates that an energy consumer that converts from gas to an electric heat pump today will reduce their heating emissions by an average of 45% over the next ten years.
“That is compared to gas, and propane is a dirtier fuel than gas… and the avoided emissions are higher in places that have greener electricity grids, and Rhode Island has been taking steps to achieve 100% renewable electricity by 2030,” said Crowley. “So while propane isn’t quite as dirty as oil heat it’s not a clean heating technology and the difference in emissions between propane and a truly clean heating technology is massive.”
“So-called renewable fuels like renewable gas, renewable oil and renewable propane have severe limitations that are going to prevent them from playing a central role in the transformation of the heating sector,” said Crowley. “First, they aren’t truly carbon neutral. There are often a lot of emissions involved in creating them and bringing them to market and secondly they’re expensive and scarce. It’s not realistic to think that they can replace more than a fraction of the demand for their fossil equivalents.
“Right now only two percent of Rhode Islanders use propane for heat but Sea 3 Providence thinks there’s a lot of potential for that number to grow,” continued Crowley. “In their petition they say that the Providence area has been identified as the 11th largest growth area for LPG in the nation and they say that this project will enable them to grow from being able to move 23 million gallons of LPG through their facility in 2020 to 100 million gallons in the future, more than a four-fold increase.
“Every conversion from oil to another fossil fuel like propane is a step backwards representing the likely loss of decades of avoided emissions,” said Crowley. “This is a project that could make it meaningfully harder to decarbonize the heating sector in Rhode Island and any project that could jeopardize the state’s ability to comply with its emissions reduction mandates necessarily has a significant impact on the environment that this board must examine in a full application process.”
As for health and safety of the host community, Crowley said that “this project will have a number of impacts on the host community including increased truck and rail traffic and the associated diesel emissions of both. Additionally the trains delivering the product to the facility will be carrying highly hazardous combustable material through densely populated residential neighborhoods in Providence and Cranston. There will also be emissions of volatile organic compounds from loading the product onto trucks.
“The end goal of this project is to allow for more traffic of this highly combustable material into and out of the facility. The petitioner says that this isn’t something to be concerned about because there are already lots of other highly hazardous chemicals transported and stored in the Port,” continued Crowley.
Those attending the meeting laughed at this, prompting the Chair to admonish them.
“But what this really tells us is that the cumulative safety burdens of living in proximity [to] all those chemicals is very high.”
The Sea 3 facility is approximately 500 feet from the largest chemical storage facility in the City. “So if a leak or explosion occurs at one of these facilities in the area you have the potential for cascading events,” said Crowley. “The Washington Park area that is home to the facility already has some of the state’s worst air quality problems and highest asthma rates. As is very often the case in Rhode Island and the rest of the country, neighborhoods that bear these burden have high populations of people of color, low-income people and people with low English proficiency.
“Decisions on the siting and alteration of polluting facilities play a critical role in managing pollution and safeguarding communities,” said Crowley. “And the people who live near this facility are entitled to a thorough and public evaluation of health and safety risks. Conducting a review of the proposal will allow [the EFSB] to thoroughly weigh important public safety and health impacts and provide affected communities with the chance to have their voices heard.”
Crowley emphasized the importance of a hearing that brings in public comments from members of the community.
Providence City Solicitor Jeffrey Dana
“The City has concerns whether these changes or these alterations cumulatively will have the impact of increased potential for pollution, traffic and congestion in an environmental justice community that is already disproportionately impacted by pollution,” said City Solicitor Dana. “I’ll note that the two adjacent communities of South Providence and Washington Park are predominantly low-income communities of color with some of the highest asthma rates in the state.”
Questions from EFSB Chair Gerwatowksi:
Asked if he agrees that the rail extension is a significant modification to the facility, not withstanding potential environmental, health and safety impacts, Hemond said that if Sea 3 Providence is not allowed to bring in propane for rail, they would simply bring in propane by ship, which would increase the price of propane in a volatile market. Hemond added that other companies are bringing in dangerous chemicals by rail, such as Univar bringing in chlorine and other companies bringing in ammonia and ethanol.
Chair Gerwatowksi’s questions to Providence City Solicitor Dana were very interesting, because they got to a basic contradiction in Providence’s environmental policies.
“You couldn’t pass a zoning ordinance tomorrow that says you can’t expand your activities… or engage in construction of things that are going to increase your activities?” asked Chair Gerwatowksi.
“There is quite an extensive process that guides the amendment of the City’s comprehensive plan and zoning ordinances but yes, the city could certainly go through a process of amending its comprehensive plan and amending zoning ordinances,” answered City Solicitor Dana.
“Why should the [EFSB] go farther than the city is willing to do in preventing those expansions out there when you have your citizens that are very concerned about that area that’s overburdened and environmental justice?” asked Chair Gerwatowksi. “Why doesn’t the city act and not put the burden on a siting board to do it on a piecemeal basis?”
City Solicitor Dana avoided the meat of the Chair’s question referring to state law on the EFSB’s role.
Chair Gerwatowski pressed the question. “But in this instance, if the city cares deeply about not having that area expanded, because of environmental justice, why doesn’t the city act on it now and not just single out one activity but take care of it across the board?”
City Solicitor Dana promised to provide more details on this at a later evidentiary hearing. Meanwhile the Providence City Council and Mayor Jorge Elorza should be asked these very important questions.