PROVIDENCE — Attorneys for the towns of Portsmouth and Middletown both argued during a public hearing last week that the R.I. Energy Facility Siting Board has jurisdiction over National Grid’s temporary installation and operation of a controversial portable liquefied natural gas (LNG) facility in a residential area on Old Mill Lane.

“I think there’s a real question as to whether the board would have authority to essentially amend a status enacted by the General Assembly,” Portsmouth Town Solicitor Kevin Gavin told the three-member siting board (EFSB) during the virtual hearing on Dec. 10.

He argued that state law contains “pretty unambiguous” language that considers the Old Mill Lane site a major energy facility and therefore subject to EFSB’s jurisdiction. 

“There’s no room for interpretation,” Mr. Gavin said.

The question of jurisdiction is part of National Grid’s larger goal of continuing — for an undetermined number of years — the Old Mill Lane facility as one solution for meeting its longterm gas supply needs. Representatives from National Grid say the extra oversight could prevent them from mobilizing equipment quickly during an emergency situation, while critics say EFSB’s authority is critical to ensure safety protocols and to protect homeowners and the environment.

After many of National Grid’s 13,800 Aquidneck Island natural gas customers experienced severe outages in 2019, the EFSB in January approved the company’s request to place five tanker trucks carrying LNG at a temporary vaporization facility on Old Mill Lane for the next several years. 

The backup facility is operational during the four months of each year when the demand for gas is high — from Dec. 1 to March 31. The company promises to return the site to its original state in April of each year it is operational. 

National Grid, however, now believes the siting board should have no jurisdiction over the facility. In its petition for a declaratory order filed with the board on Sept. 16, 2020, the Narragansett Electric Company, doing business as National Grid, argues the portable LNG vaporization equipment on Old Mill Lane is not a major energy facility as defined by state law, and therefore not subject to the board’s jurisdiction. 

The towns of Portsmouth and Middletown, which have raised numerous concerns over the vaporization facility, filed motions to intervene in the proceedings before the EFSB.

Marissa Desautel, attorney for the Town of Middletown, said the town is concerned about what appears to be a “fast-and-loose approach” to the Energy Facility Siting Act. She charged that National Grid seems to be skirting local jurisdiction.  

The law is clear, she said — the siting board has jurisdiction over the Old Mill Lane facility. “I haven’t heard anything today that seems to allow for deviation of the statute,” Ms. Desautel said.

The town has major concerns over security, transportation of LNG trucks, training of National Grid staff, fire department coordination, property values and more, she added. She also brushed aside National Grid’s argument that the Old Mill Lane site is a temporary solution to the gas shortage problems on the island, and therefore doesn’t meet the definition of a major energy facility.

“There is no such exception in the act,” Ms. Desautel said. “We also don’t believe there is an emergency (exception) to the act.” 

Mr. Gavin agreed. 

“As to whether this is an emergency situation, I would suggest it’s not,” he said. “National Grid just seems to kick this can down the road and say, ‘We have an emergency.’”

The Town of Portsmouth has been more than cooperative toward National Grid, and is not looking to shut down the facility, the solicitor said. He noted the town granted National Grid a zoning certificate for the facility in 2018, and after the 2019 outage informed the company there was no need to acquire another one under the circumstances.

But now that the original zoning certificate has expired, Mr. Gavin said if the EFSB determines it has no jurisdiction over the matter, “National Grid will have to go before the (Portsmouth) zoning board and apply for a special-use permit.”

National Grid’s response

George Watson, an attorney for National Grid, said the company is not opposed to filing for the necessary permits. However, there may be future challenges to National Grid’s plans, which could threaten the delivery of natural gas, he said. The company’s paramount concern is to have a framework for an “expedited review” so the equipment on Old Mill Lane can be readily used to ensure reliability, he said.

“We’re not against getting local approval; we’re not trying to circumvent review of these temporary facilities. The main concern is that we need the flexibility to do it quickly,” Mr. Watson said. “When you talk about mobilizing equipment in 12 hours and you talk about getting a license from the EFSB, that’s worlds apart. There’s nothing in the rules that provides a mechanism for that.”

Letter from abutters

At the start of the hearing, EFSB Chairman Ronald Gerwatowski read a letter from two abutters of the facility, Stephen and Laurie McDonald, who have lived on Old Mill Lane since October 1992.

They said that ever since National Grid was granted an operational waiver by the EFSB for a wintertime LNG operation, the facility has had an adverse impact on the neighborhood. They complained of loud noises and lighting that overwhelms the area. The LNG trailer trucks are very large and have trouble navigating the narrow intersection of Wapping Road and Old Mill Lane, often crossing over private property, the McDonalds said.

The couple also took exception to a statement made in National Grid’s Aquidneck Island Long-Term Gas Capacity Study — that the LNG facility is “in the vicinity” of a residential neighborhood.

“That is an inaccurate statement,” the McDonalds stated in their letter. “It’s actually in the neighborhood.”

Council member responds

Linda Ujifusa, vice president of the Town Council, said she was pleased to see that members of the siting board “appeared to agree with our town solicitor and reject National Grid's claim that the Old Mill Lane LNG vaporization facility was not a ‘major energy facility’ and subject to the EFSB jurisdiction and licensing requirements under state law.”

Although the hearing focused on the narrow issue of EFSB jurisdiction, Ms. Ujifusa said she was hopeful the siting board will also agree with the council’s unanimous recommendation, submitted to National Grid, to discontinue the use of the Old Mill Lane facility as soon as possible. In addition, she hopes the company will “institute a moratorium on new gas hook-ups and incentivize alternatives to natural gas and accelerate programs to reduce natural gas demand.”

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