Full text - PSB's final discussion and conclusion

The PSB 3 - John Burke, James Volz and Margaret Cheney

The last 33 pages of the Public Service Board's 156 page document released Tuesday concerning the North Springfield Sustainable Energy Project.

ISSUES RAISED UNDER SUBSTANTIVE CRITERIA OF 30 V.S.A. § 248(b)

Several substantive issues were raised by a variety of the parties under the criteria found in § 248(b). We will address them each on an issue-by-issue basis below, taking into account the specific position advocated on each issue by each party.

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1. Orderly Development of the Region
In the PFD, the Hearing Officer recommended that we find the Project would unduly interfere with the orderly development of the region due to its trucking-related impacts on the local community.155 The Town of Springfield, SWCRPC, NSSEP and NoSAG each filed comments related to orderly development of the region.

Springfield did not take issue with any specific findings or recommendations made by the Hearing Officer. Rather, Springfield states that "the Town is not taking a position in favor of or in opposition to the Project" as long as the Board gives due consideration to certain traffic-related recommendations made by SWCRPC, NSSEP's commitment to pre-fund the construction of a new access road into the North Springfield Industrial Park, and the land conservation measures in the Springfield Town Plan.156

SWCRPC supports the Hearing Officer's proposed findings in the PFD's section on transportation systems, and strongly recommends the construction of a new access road to the industrial park to avoid the use of South County Road by trucks delivering fuel to the Project site. In the event approval of the Project is conditioned as recommended by the Hearing Officer, and the new access road is developed as agreed to between NSSEP and Springfield, SWCRPC believes the Project would be in conformance with its regional plan and supports Project approval.157

NoSAG agrees with the Hearing Officer's conclusion that the trucking-related impacts from the Project would result in undue interference with the orderly development of the region, but requests that we find further undue impacts from the Project as a result of its annual harvesting requirements for wood fuel from Vermont's forests. According to NoSAG, harvesting such a large amount of fuel from Vermont's forests for use at the Project's expected thermal
155. PFD at 5, 21-26.
156. Springfield Comments at 1.
157. SWCRPC Comments at 1.

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efficiency level would be inconsistent with orderly development of the region because that fuel could be better used for more efficient purposes.158

NSSEP asks that we reject the Hearing Officer's recommendation and find that the Project is consistent with the orderly development of the region. NSSEP advances four grounds in support of its request. First, NSSEP contends that the PFD does not adequately consider Springfield's position on orderly development or the Town's commitment to improve access to the industrial park.159 Second, NSSEP asserts that the language in the Springfield Town Plan relied on in the PFD is nothing more than an aspirational statement which is not entitled to due consideration by the Board.160 Third, NSSEP states that when the Project's societal benefits are considered within the context of Springfield's entire Town Plan, the Project cannot be found to unduly interfere with the orderly development of the region.161 Lastly, NSSEP points out that it has addressed SWCRPC's recommendations regarding the distribution of Project-generated traffic and, in addition, is willing to accept a condition that prohibits the delivery of any wood fuel to the Project site until such time as a new access road is completed.162

We accept the Hearing Officer's recommended finding that the Project would unduly interfere with the orderly development of the region based on its trucking-related impacts to the local community. Contrary to NSSEP's assertion, the Hearing Officer correctly considered Springfield's concerns regarding problems with truck access to the industrial park. The Springfield Town Plan recognizes that a problem exists with truck access at current activity levels in the industrial park and expresses in no uncertain terms the Town's desire to deter additional growth in the industrial park that relies on large trucks. We are not persuaded by
158. NoSAG Comments at 9-10. We address NoSAG's comments on thermal efficiency in our discussion of
Project emissions and thermal efficiency, below.
159. NSSEP Comments at 4-6.
160. NSSEP Comments at 6-9.
161. NSSEP Comments at 10-12.
162. NSSEP Comments at 12-14.

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NSSEP's attempt to overcome this language by comparing it to language related to the Springfield East Industrial Park that refers to "large volumes" of truck traffic, as opposed to the reference to "large trucks" in the language related to the North Springfield Industrial Park.163 The language in the Town Plan discouraging the use of large trucks to support activities in the North Springfield Industrial Park is found in a section of the Plan's land use chapter entitled "Future Directions," which indicates a concern over new uses in the industrial park that rely on large trucks. In other words, it is a concern about increasing the existing volume of large truck traffic entering and exiting the industrial park via South County Road and Main Street. The Town's concerns over truck access to the industrial park are also made evident in its initial brief in which it recommended that a new access road be a required condition of any approval of the Project. In summary, the Town's concern over increasing the number of large trucks accessing the industrial park over the existing road network is plain. The evidence of record supports the Hearing Officer's recommended finding that the increase in truck traffic on South County Road and Main Street that would result from operation of the Project would unduly interfere with the orderly development of the region.

NSSEP's position with respect to using societal benefits from the Project to overcome an otherwise undue impact under criterion (b)(1) is also without merit. The balancing test language NSSEP quotes from Docket 5217 is related to a determination of the public good, and not to whether the project in question would unduly interfere with the orderly development of the region. Additionally, NSSEP's reliance on Docket 6911 is misplaced because the facts of that case were materially different. The impacts that would have been experienced had the four-turbine wind electric generation project at issue in that Docket been approved were largely visual in nature. The Board concluded that the impacts from the placement of four turbines: "atop a previously developed mountain, with an existing road and nearby power lines (including the DC transmission line which runs directly through the Champion Lands), and with visibility limited to a small portion of the Champion
163. NSSEP Comments at 8-9.

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Lands, would not so negatively affect the character of the surrounding conserved lands as to impede the orderly development of the region."164

In the instant case the impacts go well beyond visual impacts, and would subject the residents living along South County Road and Main Street to a substantial increase in large truck traffic and its attendant effects as described by the Hearing Officer. We do not find these impacts to be acceptable under the circumstances of this case.

Lastly, even if we were inclined to do so, we cannot impose the condition suggested by NSSEP, and at least implicitly supported by Springfield and SWCRPC, that construction of a new access road be required prior to commencement of any deliveries of wood fuel to the Project site. NSSEP and the Town have apparently reached an agreement (the "Springfield MOU") that would require NSSEP to pre-fund the Town's construction of a new access road to the industrial park, funding that would over time be returned to NSSEP via a tax stabilization agreement.165 However, the Springfield MOU is not in the evidentiary record and we therefore cannot rely on it in making our findings. The parties were informed by the Hearing Officer over six months ago that the contents of the Springfield MOU could not be considered by the Board in making its findings unless that document was first moved and admitted into the evidentiary record.166 Notwithstanding ample notice of this fact, NSSEP has elected not to seek admission of the Springfield MOU into the evidentiary record, and instead has chosen to make its case based on the existing road network.167 The Hearing Officer also made clear that if a new road was to be considered in this proceeding, new evidence would need to be taken, at a minimum, on the impacts that would arise from the Project's use of the road so the Board could make required findings under several implicated statutory criteria.168 Under these circumstances, we cannot
164. Petition of EMDC, LLC, Docket 6911, Order of 7/17/06 at 103.
165. NSSEP Comments at 3 n.4.
166. Docket 7833, Order of 7/12/13 at 3 n.6 (citing 3 V.S.A. 809(g)).
167. See Docket 7833, Order of 8/6/13 at 2-3.
168. Docket 7833, Order of 7/12/13 at 4.

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impose the condition suggested by NSSEP because there is no evidentiary record to support a finding that the Project's use of a new access road would not result in any undue impacts under relevant subsection (b) criteria.169

Given the state of the existing evidentiary record, in particular the lack of any record evidence regarding a new access road and the impacts that would arise from the use of such a road, we adopt the Hearing Officer's finding that the Project would unduly interfere with the orderly development of the region due to its trucking-related impacts on the local community.

2. Need for the Project
In the PFD, the Hearing Officer recommends that we find the Project would meet a need for present and future demand for service which could not otherwise be met in a more cost-effective manner through conservation, energy-efficiency or load-management measures. Specifically, the PFD recommends we find that the Project will meet the need criterion by virtue of its participation in the regional market, a market from which Vermont obtains much of its energy.170 The Department and NoSAG each filed comments on the question of the need for the Project. The Department is concerned that the PFD relies on a finding that does not adequately support the Hearing Officer's conclusion that the need criterion has been met by virtue of the Project's participation in the regional market because of testimony from the Department's witness, Dr. Hopkins, regarding the existence of excess regional capacity.171 The Department asks the Board to instead find that the Project would meet a regional need for renewable energy because it would be able to sell RECs into the regional market in those states that have renewable portfolio standards ("RPS"), provided the Project would qualify to participate in a given state's
169. Additionally, it is possible that we would be required to make findings regarding impacts from the construction of the road as well, though that question need not be resolved here given our decision.
170. PFD at 26-30.
171. Department Comments at 1. The Department did not specify the proposed finding that it was concerned about. Additionally, we have reviewed the recommended findings on need in the PFD and do not find any that are inconsistent with either the Hearing Officer's overall recommended finding 56 on need, or with our rejection of that finding.

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program.172 The Department also states that the Project could potentially assist in meeting some of Vermont's renewable energy goals established under 30 V.S.A. § 8001(a).173 Lastly, the Department points out that regional capacity forecasts, developed subsequent to the filing of Dr. Hopkins' testimony and participation in the technical hearings, indicate the existence of a potential regional capacity deficit within the next five years. The Department states it is willing to make a proffer of additional information on this topic and to participate in any additional process the Board deems necessary.174 However, the Department did not seek to reopen the evidentiary record for that purpose.175
NoSAG asks that we reject the Hearing Officer's recommendation and find that the Project does not meet a regional need for energy.176 NoSAG asserts that the evidentiary record demonstrates that the Project actually is not needed and that the precedent relied on by the Hearing Officer does not support a finding of Project need because the evidence in those earlier dockets, unlike the evidence in this proceeding, actually showed a regional need for power. NSSEP argues that in this case, the evidence shows there is excess regional capacity for the foreseeable future, and that therefore no regional need exists for the energy that the Project would produce.177
Having considered the evidentiary record before us, we find that NSSEP has failed to meet its burden to demonstrate that the Project would meet a present and future demand for
172. Department Comments at 1-2.
173. Department Comments at 2-3.
174. Department Comments at 3.
175. As noted above, our findings must be based on facts either in the evidentiary record or matters officially noticed. 3 V.S.A. § 809(g). As a result, we are unable to make any findings based on changes that may have occurred in the regional capacity market since the time Dr. Hopkins presented his testimony on behalf of the Department.
176. NoSAG also argues that NSSEP failed to address certain requirements under the need criterion that were added to 30 V.S.A. § 248(b)(2) as the result of Act 170. Given our determination that Act 170 does not apply to this proceeding, we need not address those arguments.
177. NoSAG Comments at 10-15.

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service which could not otherwise be provided in a more cost-effective manner through energy conservation programs and measures and energy-efficiency and load-management measures. We therefore decline to adopt the Hearing Officer's recommended finding 56 under § 248(b)(2). The evidence in the record supports the Hearing Officer's proposed finding with respect to the Project not meeting any particular State need in the absence of a PPA with Vermont distribution utilities.178 Additionally, the Department's witness, Dr. Hopkins, testified that the existence of excess capacity on a regional basis means that there is an ability to meet any regional need for energy for the foreseeable future.179 While we acknowledge Dr. Hopkins' testimony, we do not agree with the Department that excess regional capacity necessarily means that there is not a regional need for power. However, NSSEP failed to present evidence on the existence of such a need or how the Project would help meet it. There is no evidence on which we can rely to find, for example, that the Project would produce energy at a cost that would ensure its dispatch into the regional market, resulting in the displacement of higher-cost generating units, or how the cost of power from the Project might influence regional wholesale prices in a way that would benefit Vermont.

We acknowledge that in support of its position on need for the Project, NSSEP presented evidence regarding energy supply gaps in Vermont's power supply portfolio, including specifically in GMP's portfolio.180 However, NSSEP has failed to address two important caveats. First, in the absence of a PPA with GMP, the Project will not assist GMP in closing any supply gap in its portfolio. Second, NSSEP's reliance on Volume 2 of the Comprehensive Energy Plan for the proposition that the Project is needed to close supply gaps in Vermont overlooks both the lack of a PPA with any Vermont distribution utility, as well as language in the Plan that recognizes the ability of existing regional capacity to close those gaps.181
178. See proposed finding 58.
179. See Hopkins pf. (10/9/12) at 7.
180. See Ingold pf. reb. at 6-7; exh. Petitioner Reb. DI-1; exh. Petitioner Reb. DI-2.
181. Exh. Petitioner Reb. DI-2.

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We also decline to find that the Project would meet a regional need for renewable power for two reasons. First, while the Board has in the past recognized a regional need for renewable energy as part of a determination of need for a particular project, that need has never alone served as the basis for a positive finding under § 248(b)(2). In Docket 7156, the Board stated: UPC's Project would contribute to meeting the regional need for power generally while also helping to meet the region's need for renewable power. Additionally, as discussed below, UPC has entered into power purchase contracts with Vermont electric distribution utilities; this would assist those utilities in meeting their renewable energy requirements under 30 V.S.A. § 8005.

These factors lead us to conclude that the Project would contribute to both Vermont and the region's need for renewable power, a need that cannot be met through energy efficiency, conservation, or load management measures.182 In Docket 6911, the Board found that a proposed project met the need criterion because: [n]ot only would EMDC's Project help meet the regional need for power in general, it would also help meet a regional need for renewable resources in particular. The power from the Project would also be sold directly to LED at below-market prices, thereby helping serve the in-state needs of LED ratepayers.183

Lastly, in Docket 7250, the Board recognized that the project would help meet the demand for renewable power in the region, but also stated: Here, we find that the Project would provide power that is needed by the region. The Project will add to the pooled resources that serve the region and should thereby contribute to lowering the wholesale price of power, which should, in turn, lead to lower retail costs for Vermont consumers. Thus, although there may not be a specific need in the short term for power in Vermont, the Project ultimately serves Vermont needs even without purchases by Vermont utilities.184
182. Amended Petition of UPC Vermont Wind, LLC, Docket 7156, Order of 8/8/07 at 29.
183. Petition of EMDC, LLC, Docket 6911, Order of 7/17/06 at 23.
184. Amended Petition of Deerfield Wind, LLC, Docket 7250, Order of 4/16/09 at 24.

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In each of these cases, the Board recognized a project's ability to help meet a regional need for renewable energy through the sale of RECs into the regional market. However, in each of those cases the regional need for renewable power was not the sole basis for the Board's affirmative finding under criterion (b)(2), and the Board identified additional needs that the project in question would meet. In Docket 7156, the Board found that the project would help meet the region's need for energy as well as the needs of Vermont distribution utilities for renewable energy. In Docket 6911,185 the Board found that the project would help meet both Lyndonville Electric Department's and the region's need for energy. And, in Docket 7250, the Board found that the project would help serve Vermonters by supplying power needed regionally, thereby contributing to lowering the wholesale price of power.

Second, as the Department's own witness testified, it is uncertain whether this Project would qualify to participate in RPS programs in the other New England states on a forward-going basis due to the characteristics of woody-biomass generation.186 The evidence supports a conclusion that the Project would potentially qualify for participation in the RPS program of one New England state for the near term.187 However, there is no evidence on which to conclude the Project would be able to participate in any RPS program in New England over the long term. Given the Project's anticipated useful life of 50 years, we do not believe that NSSEP has met its burden of demonstrating that the Project would meet a "present and future" regional need for renewable power.188

Given that Board precedent to date has not found that meeting a regional need for renewable power is in and of itself sufficient to support an affirmative finding under criterion
185. The project proposed in Docket 6911 was not granted a CPG, albeit for reasons unrelated to the need criterion.
186. For example, Massachusetts recently tightened its eligibility standards for participation in its RPS program, requiring a woody-biomass plant to operate at a minimum efficiency level, and to achieve certain minimum greenhouse gas reductions over the course of 20 years. See 225 CMR 14.00. Based on the minimum efficiency requirement alone, it appears the Project would not qualify for the Massachusetts program.
187. Hopkins pf. (10/9/12) at 8.
188. 30 V.S.A. § 248(b)(2) (emphasis added).

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(b)(2), and given the less than certain ability of the Project to qualify as a source of renewable energy to participate in other New England states' RPS programs in the future, we decline to take that step in this proceeding.189

We also do not find there to be a sufficiently strong correlation between this Project and the renewable energy goals set forth in 30 V.S.A. § 8001(a) and identified by the Department. The Department believes that the Project would be consistent with statutory goals 2 and 4, and potentially goals 5 and 6.190

Goal 2 speaks to supporting the development of renewable energy that uses natural resources efficiently.191 While approval of the Project would support the development of the renewable energy industry in Vermont, the evidence in this proceeding demonstrates that the Project would use Vermont's forest resource at a low level of thermal efficiency when compared to other more efficient uses such as heating, and would therefore be inconsistent with the goal's vision of efficient use of natural resources.

Goal 4 speaks to the development of viable markets for renewable energy and energy efficiency projects.192 Development of viable markets for renewable energy requires that there be not only supply, but demand for the renewable energy as well. Dr. Hopkins' testimony simply states that the Project would help meet this goal, but does not explain how approval of the Project would promote demand for the power the Project would produce.193 As a result, the Project's consistency with goal 4 has not been demonstrated.

Goal 5 seeks to protect and promote air and water quality in the state and region through the displacement of fuels, including fossil fuels, which are known to emit or discharge
189. The Project's qualifications as a renewable energy project for participation in other states' RPS programs would be determined with reference to the law in each of those states, and not by whether the Project meets the definition of renewable energy in Vermont under 30 V.S.A. § 8002(17).
190. See Hopkins pf. (10/9/12) at 11-12.
191. 30 V.S.A. § 8001(a)(2).
192. 30 V.S.A. § 8001(a)(4).
193. Hopkins pf. (10/9/12) at 11-12.

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pollutants.194 By its plain language, goal 5 seeks to displace the use of all fuels that discharge or emit pollutants, not just fossil fuels. The evidence in this proceeding shows that the Project would result in a significant annual discharge of greenhouse gas emissions that would not be sequestered for decades. When these greenhouse gas impacts are considered together with the low thermal efficiency at which the Project would operate, we conclude that this Project would be inconsistent with goal 5.

Goal 6 encourages reductions in global climate change,195 a goal consistent with the State's goals for greenhouse gas reductions established in 10 V.S.A. § 578. As with goal 5, we find that the combination of the Project's greenhouse gas emissions and the expected low level of thermal efficiency would result in an outcome inconsistent with goal 6.

Thus, for the foregoing reasons we decline to find that the Project would meet a present and future need for regional renewable energy and decline to adopt the Hearing Officer's recommended finding number 56. Rather, we find instead that NSSEP has failed to demonstrate that the Project would meet a present and future demand for service which could not otherwise be provided in a more cost-effective manner through energy conservation programs and measures, and energy-efficiency and load-management measures. Accordingly, we are unable to make the affirmative finding under § 248(b)(2) that is required for approval of the Project.

3. System Stability and Reliability
NoSAG contends that the PFD wrongly recommends a finding that the Project would not adversely impact system stability and reliability. According to NoSAG, the evidentiary record does not support the proposed finding because the evidence the Hearing Officer relied on is limited to a 2008 feasability study for a 30 MW project, even though the proposed Project is a 35 MW plant. NoSAG is also critical of the proposed decision's reliance on the completion and submission of a System Impact Study and Facilities Study as a condition of approval.196
194. 30 V.S.A. § 8001(a)(5).
195. 30 V.S.A. § 8001(a)(6).
196. NoSAG Comments at 15-16.

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We are not persuaded by NoSAG's arguments regarding system stability and reliability. The Hearing Officer did not exclusively rely on the 2008 feasability study for a 30 MW project in making his determination. Rather, he relied on the testimony of Mr. Estey, which used the 2008 study as a starting point for his analysis of the impacts of interconnecting the 35 MW plant proposed in this proceeding. Additionally, the Hearing Officer relied on the content of the MOU between GMP and NSSEP to further support his recommended finding.197 We agree with the Hearing Officer that there is sufficient evidence to find that there would be no adverse impact to system stability and reliability from interconnection of the Project provided the recommended conditions were fulfilled.

4. Economic Benefit
According to NoSAG, there is insufficient evidence to support the recommended finding that the Project would result in an economic benefit to the State and its residents. NoSAG asserts that the economic modeling that was performed for the Project was nothing more than a "hypothetical exercise" in the absence of a PPA for the sale of power from the Project. NoSAG asserts that, without a PPA, all of the economic benefits described by the economic modeling are purely speculative.198 NoSAG further contends that § 248 "contemplates a real project with real contracts, real numbers and real impact assessments – something dramatically missing in this proceeding."199 NoSAG also takes issue with the Hearing Officer's determination that § 248 does not require a finding of how much economic benefit would result from the construction of the Project, but only that some amount of benefit must be found, and claims that the lack of analysis of the Project's impacts on the price of wood is fatal to the finding of economic benefit.200
197. PFD at 33.
198. NoSAG Comments at 18-19.
199. NoSAG Comments at 17 (emphasis in original).
200. NoSAG Comments at 17-19.

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NSSEP presented detailed and extensive evidence regarding the economic impacts from the Project, including the acknowledgment that there may be some localized decline in real estate values for those properties closest to the Project site. The conclusion of the report was that the Project would result in significant economic benefits to the Town of Springfield and the regional and State economies. NoSAG is correct that the economic benefits described in the economic modeling are premised on an operating plant. However, the absence of a PPA is not fatal to a finding of economic benefit for two reasons. First, there is a regional wholesale market into which the Project could potentially sell its power. Second, in case the Project proved to be uneconomic and ceased operations, the Hearing Officer recommended that we require the establishment of a decommissioning fund. If the Project were to be constructed but could not be run economically, it would be decommissioned and the economic benefits realized from the construction and decommissioning of the Project, though only a small part of what was identified in the economic modeling, would nonetheless have been realized. Lastly, NoSAG is incorrect in its criticism of the Hearing Officer's conclusion that criterion (b)(4) does not require that a specific amount of economic benefit be identified, but only that some level of economic benefit be found. The Hearing Officer's construction of the § 248(b)(4) criterion is squarely supported by Vermont Supreme Court precedent.201 Therefore, we find that NoSAG's arguments on economic benefit are without merit.

5. Aesthetics
NoSAG believes that the Project would have an undue adverse impact on aesthetics because its construction and operation would be contrary to both the Springfield Town Plan and a Town zoning bylaw that restricts building heights to no greater than 60 feet.202
201. See In re Amended Petition of UPC Vermont Wind, LLC, 2009 VT 19 at ¶¶ 5-11 (construing 30 V.S.A. § 248(b)(4)).
202. NoSAG Comments at 22-23.

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The Board assesses a proposed project's aesthetic impacts using the Environmental Board's Quechee test.203 In addition to the Quechee analysis, the Board's consideration of aesthetics under Section 248 is "significantly informed by overall societal benefits of the project."204 All parties to this proceeding agreed that the Project would have an adverse visual impact under the first part of the Quechee analysis. Therefore, it is necessary to review the Project's impacts under the second part of the Quechee analysis to determine if those adverse impacts are also undue. NoSAG asserts they are undue because the construction and operation of the Project would violate clear written community standards set forth in both the Springfield Town Plan and the Town's zoning bylaw that restricts building heights to no greater than 60 feet. The language that NoSAG relies on from the Town Plan is not specific enough to constitute a clear written community standard. It is general in nature and expresses a desire to preserve air quality in the town, gives examples of what might cause a degradation in that quality, tasks the Town with being responsible in its own actions, and states that the Town should take an active role in the review of development proposals that could degrade air quality.205 While this language does express the desire to maintain air quality in the town, it does not establish any particular standard that would be recognizable under the Quechee analysis.206 Therefore, we find NoSAG's reliance on the Town Plan to be misplaced.

NoSAG is also incorrect that the zoning bylaw constitutes a clear written community standard for the purpose of aesthetics review under § 248. As the Hearing Officer explained, projects being reviewed under § 248 are statutorily exempt from both local zoning and Act 250. Reliance on a zoning bylaw in an aesthetics review under § 248 would frustrate the legislative policy behind these exemptions.207 Additionally, as we have made clear in prior decisions,
203. Amended Petition of UPC Vermont Wind, Docket 7156, Order of 8/8/07 at 64-65.
204. In Re: Northern Loop Project, Docket 6792, Order of 7/17/03 at 28.
205. See NoSAG Comments at 22 (quoting Springfield Town Plan).
206. See Application of Seneca Mountain Wind, LLC, Docket 7867, Order of 8/9/13 at 57-58.
207. See Petition of Georgia Mountain Community Wind, LLC, Docket 7508, Order of 6/11/10 at 53.

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zoning bylaws are not an appropriate source of clear written community standards when conducting an aesthetics review under § 248 because towns often grant variances to their bylaws on a case-by-case basis.208 For these reasons, the height-restrictive zoning bylaw is not a clear written community standard for purposes of our review of the aesthetic impacts of the Project under § 248.

6. Groundwater Impacts
NoSAG contends that NSSEP has failed to demonstrate that the Project would not result in the injection of waste materials into groundwater or wells because NSSEP did not provide the wastewater chemical constituents that would be injected into the proposed leachfield from the boiler blowdown process. NoSAG further claims that this same information was not provided to ANR in NSSEP's application for an Underground Injection Control ("UIC") permit, lists chemicals that it apparently believes will be injected into the groundwater, and states that it is prepared to produce an expert witness to testify to the negative effects these chemicals would produce.209 NoSAG also states that neither Mr. Nelson nor Mr. Ingold, two of NSSEP's witnesses, was able to testify as to the content of the wastewater that would be injected into the ground from plant operations. NoSAG finds Mr. Ingold's inability to answer questions on this topic particularly troubling since Mr. Ingold signed NSSEP's application for the UIC permit, which included a certification that Mr. Ingold was familiar with the information in the application, including the effluent chemistry and a list of generic chemicals.210 Lastly, NoSAG contends that it was not permitted to cross-examine NSSEP's witnesses on the question of groundwater impacts, and in the event ANR issues the UIC permit, asks that it be allowed an opportunity to conduct discovery and cross-examination on the contents of that permit since its issuance would create only a presumption that the wastewater criterion has been met.211
208. See Petition of Green Mountain Power Corporation et al., Docket 7628, Order of 5/31/11 at 86-87.
209. NoSAG Comments at 34.
210. NoSAG Comments at 35-36.
211. NoSAG Comments at 37-38.

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We reject NoSAG's arguments regarding groundwater impacts because they are based on a mischaracterization of the record in this proceeding. First, there is unrebutted testimony from Mr. Nelson that the wastewater stream that would be injected into the leachfield would comply with all applicable health and environmental conservation department regulations regarding the disposal of waste, and would not involve the injection of waste materials into groundwater or wells.212 Additionally, there is also unrebutted testimony that the makeup of the wastewater stream to be injected into the leachfield was provided to ANR when the UIC permit application was filed. The chemical makeup of the water as it enters the blowdown process was not provided because the water undergoes chemical changes in that process, so what is relevant is the chemical makeup as it exits that process. NoSAG apparently never sought this information in discovery, nor did it specifically ask NSSEP to provide the information when NSSEP's witness was on the stand.213

Second, NoSAG's contention that certain specific chemicals would be introduced into the groundwater, causing negative impacts, is unsupported by the evidentiary record. The only testimony on this point is that there will be no toxic substances injected into the groundwater. If NoSAG believed that the wastewater stream contained prohibited chemicals, it could have sought the constituent content of the wastewater stream in discovery and submitted testimony supporting that position. This it failed to do.

Third, NoSAG's contention that neither of NSSEP's witnesses could identify the makeup of the wastewater stream to be injected into the leachfield is also without merit. As noted above, Mr. Nelson provided unrebutted testimony that the wastewater outflow would comply with all applicable regulations and would not involve the injection of waste materials into groundwater or wells.214 NoSAG's criticism of Mr. Ingold's inability to answer a certain question on the stand in light of his signing the UIC permit application also relies on a mischaracterization of the record.
212. PFD at 75-76.
213. Tr. 4/2/13 at 204-05 (colloquy).
214. Nelson pf. (12/22/11) at 6-7; Nelson pf. (6/1/12 as revised 3/12/13) at 3-4.; tr. 4/1/13 at 46, 49, 51 (Nelson); see also tr. 4/2/13 at 202-203, 219, 220 (Smith).

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The question that Mr. Ingold deferred to Mr. Smith had nothing to do with the chemicals used in the boiler blowdown process or the makeup of the wastewater stream. Rather, it had to do with whether and what type of impurities might build up in the boiler during the generation process. Mr. Ingold deferred this question to Mr. Smith as the expert witness on the boiler's design.215 There is no inconsistency between Mr. Ingold's response on the stand and his signature on the UIC permit application.

Fourth, NoSAG's contention that it was not allowed to cross-examine NSSEP's witnesses on groundwater impacts is also unsupported by the record. The transcripts indicate that NoSAG was provided ample opportunity to cross-examine both Mr. Nelson and Mr. Smith on the wastewater stream that would result from the boiler blowdown process.216 The Hearing Officer sustained an objection interposed by NSSEP to a question asked by ANR. That question was directed at NSSEP's UIC permit application process at ANR. The objection was properly sustained because the manner in which that application was being processed at ANR is not a proper subject for litigation in this proceeding, particularly where that permit, if it were ultimately issued, would be subject to appeal before the Board. Litigating the permit's processing or its yet to be known contents in this proceeding would be premature and present a potential conflict in the event the permit were to be issued and appealed. Not only was the objection properly sustained, it was aimed at a question asked by ANR and had no effect on NoSAG's previously completed cross-examination on groundwater impacts of the witness who was on the stand at the time.217

Finally, NoSAG's contention that it is entitled to additional process before the Board in the event the UIC permit was issued is moot given our decision here today.
215. Tr. 4/2/13 at 12 (Ingold).
216. See tr. 4/1/13 at 42-48 (examination of Mr. Nelson) and tr. 4/2/13 at 201-06 (examination of Mr. Smith).
217. See tr. 4/2/13 at 220-21 (colloquy).

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7. Traffic, Public Safety and Public Investment Impacts
NoSAG asks the Board to find that the Project would result in undue impacts to traffic, public safety, and public investments, focusing on the number of truck trips that would be added to vehicles already traveling on South County Road and Main Street. According to NoSAG, the additional truck trips would cause undue congestion and create a dangerous situation.218 The evidence of record does not support the findings requested by NoSAG. The traffic impact study conducted by NSSEP concluded that intersection delay times for the roads in question would increase by approximately one second as a result of the added traffic, due in large part to the low volume of traffic on these roads. Therefore, congestion is not an issue. The evidence regarding the existence of truck conflicts at the intersections in question does not support a finding of unsafe conditions. Rather, it indicates that the existing ingress and egress for the industrial park is insufficient for large trucks currently seeking access. There was no testimony presented by any party that suggests a threat to public safety as a result of the trucks traveling on South County Road and Main Street. Lastly, there is also no evidence to support a finding of undue impacts to public investments, including these two streets.

C. General Good of the State – 30 V.S.A. § 248(a)(2)
NoSAG and VNRC/NWF each filed comments addressing the expected levels of greenhouse gas emissions and thermal efficiency that would result from the Project's combustion of wood fuel, contending that those high emissions and low thermal efficiency levels would not promote the general good of the State.

VNRC/NWF state that the PFD's finding that the Project would promote the general good of the State is unfounded because there is no evidence on which to find when, if ever, the Project would have a net carbon benefit. According to VNRC/NWF, the failure of NSSEP to perform a carbon accounting makes it impossible to know whether the Project will help or hinder the State in meeting its greenhouse gas reduction goals set forth in 10 V.S.A. § 578. Additionally, VNRC/NWF assert that compliance with the ANR MOU will not ensure compliance with these greenhouse gas reduction goals because the ANR MOU is not intended to address gross
218. NoSAG Comments at 38-40.

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emissions from the Project, and will have only the potential to reduce net greenhouse gas emissions. Without evidence demonstrating when the Project will result in a net carbon benefit and how it will help meet the State's greenhouse gas reduction goals, VNRC/NWF assert that the Project would not promote the general good.219

With respect to thermal efficiency, VNRC/NWF contend that approval of the Project would not promote the general good of the State given the quantities of wood it would use to realize a relatively low thermal efficiency level, and the resulting pressure on the wood supply that would otherwise be available for more thermally efficient uses. According to VNRC/NWF, the ANR MOU does not address the thermal efficiency of the Project, and compliance with that MOU would not ensure rapid forest regeneration after harvesting for the Project has occurred. VNRC/NWF also argue that the low thermal efficiency level expected from Project operations would result in increased greenhouse gas emissions per unit of energy produced when compared to generation relying on most fossil fuels. Thus, absent a higher thermal efficiency level, VNRC/NWF contend the Project would not promote the general good and would interfere with the State's efforts to meet its greenhouse gas reduction goals.220

NoSAG contends that the Project would not promote the general good and would have an undue adverse impact on the natural environment as a result of Project emissions. With respect to greenhouse gases, NoSAG notes that the Project would emit up to 448,000 tons of greenhouse gases each year it is in operation, which would frustrate the State's efforts to meet its greenhouse gas reduction goals and would largely offset any greenhouse gas reduction benefits achieved annually by the work of Efficiency Vermont. Further, NoSAG states that compliance with the ANR MOU would not address gross emissions, and even if compliance with that MOU would result in some net carbon benefit – an outcome NoSAG does not believe is supported by the evidentiary record – such a benefit would not be realized for decades and therefore would not contribute to the short term efforts needed to meet the statutory greenhouse gas reduction goals.
219. VNRC/NWF Comments at 2-4.
220. VNRC/NWF Comments at 4-7.

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NoSAG also contends that the Project would be inconsistent with the Springfield Town Plan's provisions concerning air quality due to its greenhouse gas emissions as well as the emission of small particulates into the air.221

With respect to the Project's thermal efficiency, NoSAG states that the slowing growth rate in Vermont's forests, combined with an increased demand for wood fuel for more thermally efficient purposes, requires denial of a CPG for the Project to avoid diverting valuable wood fuel to an inefficient and polluting electric generating plant.222

The Hearing Officer concluded that compliance by NSSEP with the terms and conditions of the ANR MOU would allow for a finding that the Project would promote the general good of the State. However, we decline to adopt this recommended conclusion in light of the Project's expected level of greenhouse gas emissions when its low level of thermal efficiency is taken into consideration.

In determining whether a project will promote the general good under § 248(a)(2), we consider whether the benefits of a proposed project would outweigh its potentially adverse impacts.223 In this case, the evidentiary record supports a finding that the Project would release as much as 448,714 tons of CO2e per year, and that sequestration of those greenhouse gases would not occur until future years, possibly not for decades, and would not occur at all in the case of forest-regeneration failures. This annual level of greenhouse gas emissions is a significant burden to be weighed in determining whether the Project would promote the general good.

The evidence also shows that even under the most optimistic projections, the Project would operate at an annual average thermal efficiency of no higher than 28.1%, and that assumes full utilization of both the proposed District Heating System and any Community District
221. NoSAG Comments at 20-34.
222. NoSAG Comments at 20. NoSAG's comments on thermal efficiency were made with respect to orderly
development of the region and impacts to the environment under § 248(b)(5). We are including them here in our
analysis of general good under 30 V.S.A. § 248(a)(2).
223. Docket 7628, Order of 5/31/11 at 140.

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Heating System. Since full utilization of the proposed thermal loop is unlikely, the efficiency of the Project is not likely to reach even a 28% thermal efficiency level.224 While utilization of waste heat from a generation project like the one proposed in this proceeding would provide a benefit to be weighed in our analysis of burdens and benefits, we find that the anticipated low level of thermal efficiency for the Project would not result in a benefit sufficiently significant to offset the burdens the Project would impose in the form of annual greenhouse gas emissions. Additionally, the State has established statutory goals for reducing greenhouse gas emissions in Vermont from the 1990 baseline, including reductions of 25 percent by January 1, 2012, 50 percent by January 1, 2028, and if practicable using reasonable efforts, 75 percent by January 1, 2050.225 The record in this case supports a finding that operation of the Project would interfere with the State's ability to meet these statutory goals as a result of the large annual releases of greenhouse gases that would result from combustion of the wood fuel. Use of a natural resource at the expected thermal efficiency level, which would in turn result in impacts that are contrary to the State's legislated policy goals, would not promote the general good of the State.

We agree with NSSEP that the version of § 248 applicable in this proceeding does not expressly require a carbon accounting. However, it is still NSSEP's burden to demonstrate that operation of the Project would promote the general good, and this it has failed to do. NSSEP's own witness, Mr. Ingold, acknowledged that it was important to understand when the Project would have a beneficial carbon outcome, and admitted that NSSEP had not undertaken any analysis to reach that understanding.226

Today's ruling is based on the evidence presented regarding this Project and should not be interpreted to mean that no wood-fired biomass facility could ever be approved under § 248. Our concerns over the annual greenhouse gas emissions from the Project are deepened by the
224. PFD findings 346 and 347.
225. 10 V.S.A. § 578.
226. Tr. 4/2/13 at 124-25 (Ingold).

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expected low level of thermal efficiency at which the Project would operate. When we weigh the impacts from the Project's greenhouse gas emissions along with the low level of thermal efficiency, and account for the absence of evidence regarding if and when the Project would have a net carbon benefit, we conclude that the Project's burdens would outweigh its benefits. It is possible that a project could be proposed with a high enough efficiency level that the balance between burdens and benefits may shift such that we could find a project would promote the general good. In this case, NSSEP failed to present evidence sufficient for us to reach that finding.

D. COMMENTS ON SPECIFIC RECOMMENDED CONDITIONS
NSSEP filed comments seeking changes to several of the Hearing Officer's recommended conditions. Additionally, ANR filed comments seeking changes to one of the recommended conditions. Given our decision today, there is no need to address these comments since those conditions would only be relevant if we had found that the Project satisfied all of the substantive criteria of 30 V.S.A. § 248(b) and would promote the general good under 30 V.S.A. § 248(a)(2). For the reasons discussed above, we have declined to make those findings. Therefore, the changes recommended by NSSEP and ANR are moot.

X. CONCLUSION
Based on the evidence of record, we find that:
(1) The Project would unduly interfere with the orderly development of the region, with due consideration given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality;
(2) The Project would not meet a need for present and future demand for service which could not otherwise be provided in a more cost-effective manner through energy conservation programs and measures and energy-efficiency and load-management measures, including those developed pursuant to the provisions of subsection 209(d), section 218c, and subsection 218(b) of this title; and

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(3) The Project would not promote the general good of the State of Vermont, with consideration given to the Project's expected annual greenhouse gas emissions and the low level of thermal efficiency at which the Project would operate.

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XI. ORDER
IT IS HEREBY ORDERED, ADJUDGED AND DECREED by the Public Service Board of the State of Vermont that:
1. The findings, conclusions and recommendations of the Hearing Officer are hereby adopted, except as modified above.
2. The Petition of North Springfield Sustainable Energy Project LLC for a certificate of public good pursuant to 30 V.S.A. § 248 is denied.
Dated at Montpelier, Vermont, this 11th day of February , 2014.
s/James Volz ))PUBLIC SERVICE
)
s/John D. Burke ) BOARD
))
OF VERMONT
s/Margaret Cheney )
OFFICE OF THE CLERK
FILED: February 11, 2014
ATTEST: s/Judith C. Whitney
Deputy Clerk of the Board

NOTICE TO READERS: This decision is subject to revision of technical errors. Readers are requested to notify the Clerk of the Board (by e-mail, telephone, or in writing) of any apparent errors, in order that any necessary corrections may be made. (E-mail address: psb.clerk@state.vt.us) Appeal of this decision to the Supreme Court of Vermont must be filed with the Clerk of the Board within thirty days. Appeal will not stay the effect of this Order, absent further order by this Board or appropriate action by the Supreme Court of Vermont. Motions for reconsideration or stay, if any, must be filed with the Clerk of the Board within ten days of the date of this decision and Order.

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Link to the complete 156 page document: 

7833 Final Order.pdf