Opponents of PSNH Mercury Scrubber Have Their Day in Court

The commercial ratepayers challenging the scrubbers are Stoneyfield Farm, H&L Instruments and Great American Dining.

Their attorney is the state’s high court to find that the PUC should have held a hearing on the scrubber.

Attorney Edward Haffer argued that the law that required PSNH install the mercury scrubbers also mandated the public hearings.

Its section 13 that actually imposes the obligation to install the scrubber technology by july1 2013. It does so in the very first section of section 13. The very next sentence that is to install by july1 2013, is contigent upon obtaining necessary approvals from regulatory bodies, which would include, obviously, the puc…..

Attorney Habber also argued that the law compelled regulators to review the cost of the scrubber.

The original price had been set by the legislature at about 250 million dollars.

But the actuall cost is about 200 million more.

And the plaintiffs argue that ratepayers will be saddled with paying the bill.

But justices asked Habber if the PUC hadn’t been right to refuse to hear the case about the scrubber’s cost.

That’s because the legislature mandated the scrubber for public health reasons.

Habber admitted that was true.

But he said there was room in the law for consideration of cost because of the way the scrubber was initially priced for lawmakers.

And the circumstances under which that determination was made was crystal clear testimony or a crystal letter from the commissioner of DES saying based on data provided by psnh the cost of installing the scrubber technology will not exceed 250 million dollars in 2013 dollars not today’s dollars but in 2013 dollars.

The attorney for PSNH argued the commercial ratepayers were asking the PUC to overturn legislative intent by pushing for a cost review.

Lawyer Bill Glahn said he thought that was a mistaken reading of the laws governing installation of the scrubber.

One of the problems with the appellant’s argument with respect to what is reasonable is a little like justice stuart’s view of pornography. They can’t define it, but they know it when they see it. And the problem with that is the puc would be required to continually review the cost of this project during construction, to determine whether 325 is reasonable but 335 is not. Clearly that’s not what the legislature had in mind in section 13.9.

Glahn also argued the plaintiffs had no right to appeal the law, because they were not necessarily affected.

His pointed out that under deregulation, as commercial customers, they are free to change their energy suppliers at any time.

Glahn also told the justices that the companies had already taken their cause to the correct place; the New Hampshire’s Legislature.

Then in 2009 this legislature had this exact issue in front of it. Brought to it, in many respects by these appellants. Asked to require the public utilities commission to undertake this review and to cap the costs, and the legislature refused to do so.

The justices could take several weeks to deliberate the issues in this case.

But in the meantime, PSNH has already begun expanding the plant in preparation for the scrubber.

Spokesman Martin Murray says the project is about one third completed.

At current time we have about 100 workers specifically working on one aspect of it which is construction of a stack which the emissions of the scrubber will be put into the air.

Once the scrubber is operational, mercury emissions would be cut by about 80 percent.

PSNH hasn’t yet asked regulators for permission to recover the cost of scrubber from ratepayers.

But as the project proceeds, it’s likely the company will make that request within the next couple of years.