By Nicholas Brown
Staff Writer

The Bio Energy power plant in West Hopkinton could be in operation as soon as July. A Supreme Court judge ruled that Hopkinton Selectmen's cease-and-desist order is invalid. (File Photo)

The state Supreme Court dismissed a 2003 cease-and-desist order issued by Hopkinton selectmen to Bio Energy officials to stop plans to burn construction and demolition debris at the West Hopkinton power plant.

In a Dec. 30 opinion written by Chief Justice John Broderick, the court also upheld an appeal from Bio Energy to pursue legal fees stemming from the case.

"I can't understand why they would rule against us and then slap us around," said Hopkinton Selectmen Chairman Don Lane.

"All we're trying to do is protect our residents."

In issuing the order for cessation, town officials argued that Bio Energy – in changing its fuel source from pure wood chips to construction and demolition debris wood – had changed uses not supported by a 1983 variance granted by the town's zoning board.

The Merrimack Superior Court, however, ruled in 2004 that the 1983 variance didn't specify allowed fuel sources, and also that local legislators must bow to state legislators on issues of air emission policy.

"We feel vindicated," said Bio Energy spokesman Mark Dell'Orfano of Regenisis Corporation.

Lane, however, thinks the Supreme Court made some erroneous assumptions based on the lower court's ruling, including asserting that town officials were aware that Bio Energy was burning wood construction debris for years prior to 2002.

"We know we can't stand in the way of them burning virgin wood," said Lane. "We have an argument with them burning construction debris."

Bio Energy owners have said it would be less expensive to burn used construction and demolition debris, including painted wood, for fuel than virgin wood. But town officials and residents are more concerned with the health effects of burning recycled materials that may contain lead.

Residents Environmental Action Committee for Health (REACH) President Ron Lajoie described the court's rulings as part of an ongoing political "battle about what control towns can have over these types of industries and what is relegated to the state."

REACH has gathered some 900 local members opposed to the company's use of construction and demolition debris.

"We would have liked the Supreme Court to have said there has to be some local control over this type of facility," said Lajoie.

Dell'Orfano declined to disclose how much money Bio Energy has spent on lawyers throughout the two-year legal battle.

"We've expended significant resources on protecting our rights," he said. "It's probably at the level that the town would need to raise a bond to pay it off."

Dell'Orfano said, however, that he hopes the energy company and town officials can now work collaboratively to resolve one another's differences.

"None of this had to happen," he said of the lengthy legal battle. "That's the sad thing."

Hopkinton has already shelled out $170,000 in legal fees related to the Bio Energy case, Lane said.

The court's ruling to allow Bio Energy to pursue recouping legal expenses "shows absolutely no sensitivity," Lane said.

"We're talking about taxpayer money here. There was nothing frivolous about this."

Dell'Orfano said Bio Energy may resume power generating operations – using clean wood sources – by the end of this month, and the company hopes to incorporate construction and demolition sources into production once the state's moratorium on burning recycled materials expires in July.

The state legislature passed the moratorium last spring, forming a committee to study potential health effects related to the burning of materials that could include toxins such as lead.

Bio Energy faces other obstacles as it moves toward fully resuming its operations.

A Dec. 29 letter from the Attorney General's Office to Hopkinton selectmen, says the state may require that Bio Energy secure a new temporary permit to burn construction and debris materials.

The letter also says Bio Energy must demonstrate to the state Department of Environmental Services that the plant meets new emission controls standards outlined in state legislation passed last year.

Hopkinton selectmen – citing federal regulations that view plants that haven't operated in two or more years as shut down – have asserted that the Bio Energy facility should be treated as a new plant, and be subjected to special review by the Environmental Protection Agency.

Dell'Orfano, in a phone interview, thought otherwise.

"There's been a continuous intent always to operate this facility," he said, adding that the plant has undergone maintenance and inspections since operations ceased in 2002.

According to the Attorney General's Office letter, the state may rule on the "permanent shutdown" issue by the end of this month.

While Lane identified the Supreme Court's ruling as a setback "that certainly cut the legs out from under the town," he said he expects local and state environmental agencies, such as REACH, to continue fighting Bio Energy's use of construction and debris material.