, Salem, MA

December 2, 2013

Plant hit with another appeal

CLF's latest move questions variances for waterways license


---- — SALEM — The increasingly nasty fight over the natural-gas power plant that developers want to build on the Salem waterfront ratcheted up a few notches with the filing of another appeal by the Conservation Law Foundation, a leading environmental advocacy group intent on blocking the plant from being built.

The Conservation Law Foundation and others are appealing a decision last month by the state Department of Environmental Protection to grant variances to developer Footprint Power for a state waterways license, one of the key approvals needed to open the new facility.

CLF filed the appeal Nov. 22, along with Clean Water Action, Swampscott-based HealthLink and 11 local citizens.

“If constructed, the facility will displace a critical area in Massachusetts that was specifically designated for water-dependent, marine industrial facilities,” Shanna Cleveland, a senior CLF attorney, wrote in the appeal.

“The potential removal of this area from its designated use violates both Massachusetts state law under Chapter 91 and Salem’s 2008 Harbor Plan. In addition, with the existing Salem Harbor power plant slated to shut down completely in 2014, the construction and operation of the facility will increase air pollution in Salem for the next 40 years.”

Footprint Power of New Jersey bought the 65-acre site last year and is scheduled to complete the shutdown of the current coal-and-oil-burning plant in May. It hopes to open a 630-megawatt natural gas plant in June 2016.

This latest attempt at scuttling the $800 million project drew a strong response from Footprint President Scott Silverstein.

“We’re very disappointed that after 31/2 years of discussions with CLF, they have chosen to take this path, appealing permit after permit in complete disregard to the environmental benefits of our proposed generating facility,” Silverstein wrote in an email.

“In addition to the deep reductions in system-wide emissions (including carbon dioxide) provided by our facility, we have also designed our plant to use as little water as possible.”

This is the second appeal CLF has filed in recent days. On Nov. 8, it appealed an approval by the Massachusetts Energy Facilities Siting Board following a lengthy review by the state agency. CLF argued that Footprint failed to prove how the new plant will comply with the 2008 Massachusetts Global Warming Solutions Act.

In response, state Rep. John Keenan of Salem, a strong backer of the power plant and chairman of a House energy committee, fired a broadside at CLF by adding language to a bill that would prevent “frivolous” appeals aimed at stopping or delaying the scheduled opening of the generating plant.

Lengthy delays, Keenan warned, could result in “rolling brownouts.”

A CLF official called Keenan’s action “unconstitutional and unconscionable.”

The bill remains in committee.

In its latest appeal, CLF argued that granting a waterways license would result in the “complete loss” of Salem’s designated port area — Salem is one of 11 designated port areas in the state — for more than 30 years, presumably the estimated life of the new plant.

“In 2008, the city of Salem approved the Salem Designated Port Area Master Plan, which required that the area be used exclusively for water-dependent industrial uses,” Cleveland wrote. “The loss of this area to a non-water-dependent use violates this plan passed by the city of Salem and the rights of the citizens to maintain these important and vanishing areas.”

Silverstein strongly objected to that line of argument, saying Footprint should not be penalized for designing a plant that uses as little water as possible.

“The existing power plant draws hundreds of millions of gallons per day from Salem Harbor, uses that water to cool and condense steam and then returns this heated water to the harbor,” he wrote.

“The new plant, which will use air-cooled condensers, will completely eliminate draws from and discharge directly to the harbor. In its latest attack, CLF is exploiting this environmental benefit by saying that our facility is no longer ‘water dependent’ as described in the Designated Port Area rules governing our site and should not be granted a variance.

“DEP recognized that the variance we sought would preserve the spirit and intent of Chapter 91 by preserving — and in fact opening up — the Designated Port Area for marine industrial uses by, among other things, demolishing and remediating the site and thereby meeting all applicable standards for a variance request, and therefore granted it.

“... It’s distressing to see opponents of this project, who share our goal of protecting and improving the environment, use Footprint’s efforts to provide our community with the broadest range of environmental benefits against us.”

Meanwhile, the state Energy Facilities Siting Board is reviewing a new permit request Footprint filed in the hope of avoiding a lengthy court hearing on appeals two Salem residents filed of approvals by city boards.

The individual appellants in this new CLF appeal include seven Salem residents — Michael Beheshti, Jeffrey Brooks, William Dearstyne, Beverly Fournier, Andrea Maubourquette, Katrin MacLean and Richard MacLean; three from Marblehead, Jane Bright, Jody Howard and Lynn Nadeau; and one from Swampscott, Martha Dansdill.

HealthLink’s Web page lists Dansdill as executive director and Bright, Howard and Nadeau as “activist volunteers.” Dearstyne filed an earlier appeal of a Salem Planning Board approval.

Tom Dalton can be reached at