Brockton Power Co. LLC v. EFSB/City of Brockton v. EFSB (No. 2) ( 2014 )

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SJC-11405
SJC-11407
BROCKTON POWER COMPANY LLC vs. ENERGY FACILITIES SITING BOARD
& others.1
CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD
& another2 (No. 2).
Suffolk. March 4, 2014. - July 31, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.3
Energy Facilities Siting Board. Public Utilities, Electric
company, Energy company. Municipal Corporations, Electric
plant, Water supply. Environment, Air pollution. Electric
Company. Administrative Law, Decision, Judicial review,
Substantial evidence.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 28, 2011.
The case was reported by Spina, J.
1
City of Brockton (city), and various residents of the city
and the town of West Bridgewater, interveners.
2
Brockton Power Company LLC, intervener (Brockton Power or
company).
3
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 26, 2011.
The case was reported by Spina, J.
Gregor I. McGregor (Nathaniel Stevens with him) for city of
Brockton.
David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler
with him) for Brockton Power Company LLC.
Sookyoung Shin, Assistant Attorney General, for Energy
Facilities Siting Board.
Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, &
Staci Rubin with her) for Frank J. Babbin & others.
Wendy B. Jacobs & Aladdine D. Joroff, for Massachusetts
Rivers Alliance & others, amici curiae, submitted a brief.
BOTSFORD, J. On August 7, 2009, the Energy Facilities
Siting Board (board), acting pursuant to G. L. c. 164, § 69J¼
(§ 69J¼), approved the petition of Brockton Power Company LLC
(Brockton Power or company), to build and operate a 350-megawatt
combined-cycle energy generating facility (facility or project)
powered by natural gas and ultra-low sulfur distillate (ULSD) in
the city of Brockton (city). As approved by the board, the
facility would use wastewater from the city's advanced
wastewater reclamation facility (AWRF) for its cooling tower.
In a consolidated appeal by three of the interveners, we
affirmed the board's decision. See Brockton v. Energy
Facilities Siting Bd. (No. 1), ante (2014) (Brockton [No.
1]), decided today.
On April 9, 2010, while the consolidated appeal was
pending, Brockton Power submitted a project change filing (PCF)
3
to the board, seeking approval of three changes to its project.
In the PCF, Brockton Power sought to: (1) change the source of
the facility's cooling tower water from the AWRF to the Brockton
municipal water supply (BMWS); (2) eliminate the use of ULSD as
an alternative fuel and rely solely on natural gas as the
facility's fuel; and (3) make certain changes in the design of
the facility. After additional public comment, extensive
discovery, testimony, and six days of evidentiary hearings that
the board considered as a "continuation of the [o]riginal
[p]roceeding," the board issued its PCF decision, denying
Brockton Power's proposal to use BMWS but approving the two
other project changes.4 Brockton Power appealed from the board's
denial of the PCF with respect to the facility's water source,5
and the city appealed from the board's approval of the design
and fuel changes. A single justice of this court reserved and
reported the appeals to the full court. We affirm the board's
final decision with respect to both appeals.
4
The city, Brockton Power, various residents of the city
and the town of West Bridgewater represented by Alternatives for
Communities and Environment, Inc., and the Taunton River
Watershed Alliance intervened in the project change filing (PCF)
proceeding.
5
We acknowledge the amicus brief filed by Massachusetts
Rivers Alliance, Charles River Watershed Association, Jones
River Watershed Association, North and South Rivers Watershed
Association, and Taunton River Watershed Alliance.
4
The scope of our review of the board's PCF decision is the
same as in Brockton (No. 1), supra, and is set forth in G. L.
c. 164, § 69P.6 The board's evidentiary rulings are entitled to
deference, and the appellants bear the burden of showing that
the board's decision is invalid. Alliance to Protect Nantucket
Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45, 51
(2006) (Alliance I).
1. Board's authority to consider PCF as part of original
proceeding. In its August 7, 2009, final decision, the board
required Brockton Power to notify it of "any changes other than
minor variations to the proposal so that the [board] may decide
whether to inquire further into a particular issue." In
addition to this general requirement, noting "the uncertainty
. . . around the availability of the Brockton AWRF water
supply," the board directed Brockton Power to "work with the
[city] regarding use of [the city's] AWRF water, and to provide
a report to the [board] with respect to the outcome of such
efforts." In the event that Brockton Power determined not to
6
General Laws c. 164, § 69P, provides that the court's
review is limited to "whether the decision of the board is in
conformity with the constitution of the commonwealth and the
constitution of the United States, was made in accordance with
the procedures established under [G. L. c. 164, §§ 69H to 69O,]
and with the rules and regulations of the board with respect to
such provisions, was supported by substantial evidence of record
in the board's proceedings, and was arbitrary, capricious or an
abuse of the board's discretion under the provisions of [§§ 69H
to 69O]."
5
use the AWRF water and instead "to use potable [municipal] water
for the majority of the water requirements of its proposed
facility," the board directed the company to "provide a project
change filing to the [board], together with a detailed analysis
focused on those issues that are germane to the use of potable
water, including opportunities for water conservation."
Consistent with this directive, on April 9, 2010, Brockton
Power submitted its PCF to the board seeking approval of a
change in the source of the facility's water supply for the
cooling tower, approval of the nonuse of ULSD as an alternate
fuel, and approval of building design changes. Over the
objection of interveners, who argued that the PCF should be
treated as a new petition, the board, as previously described,
held evidentiary hearings on the PCF and issued a decision
rejecting the proposed change in source of water supply for the
cooling tower, but approving the two other changes.
Under § 69J¼, fifth and sixth pars., the board may approve,
reject in whole or in part, or conditionally approve a petition
for an electrical generating facility.7 The statute provides
7
General Laws c. 164, § 69J¼ (§ 69J¼), fifth and sixth
pars., provide in relevant part:
"The board shall, within one year from the date of filing,
approve a petition to construct a generating facility if
the board determines that the petition meets [certain
enumerated] requirements . . . .
6
that "[i]n the event of rejection or conditional approval, the
applicant may, within 180 days, submit an amended petition.
Public and evidentiary hearings on the amended petition shall be
held on the same terms and conditions applicable to the original
petition." G. L. c. 164, § 69J¼, sixth par. See note 7, supra.
The city contends that Brockton Power's PCF was an "amended
petition" within the meaning of § 69J¼, sixth par., and because
it was submitted on April 9, 2010, 245 days after the board
issued its original decision, the board did not have the
authority to consider it as part of the original proceeding --
the window for filing an amended petition had already closed.
According to the city, the board should have reviewed the PCF as
a new petition, which would have required readjudication of the
full range of issues the board considered in its original
decision issued on August 7, 2009. The city's argument fails.
"We accord substantial discretion to an agency to interpret
the statute it is charged with enforcing . . . ." Alliance to
Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd.,
"If the board determines that the standards set forth above
have not been met, it shall, within one year of the date of
filing, either reject, in whole or in part, the petition,
setting forth in writing its reasons for such rejection, or
approve the petition subject to stated conditions. In the
event of rejection or conditional approval, the applicant
may, within 180 days, submit an amended petition. Public
and evidentiary hearings on the amended petition shall be
held on the same terms and conditions applicable to the
original petition."
7
457 Mass. 663, 681 (2010). Moreover, "administrative agencies
have broad discretion over procedural matters before them."
Zachs v. Department of Pub. Utils., 406 Mass. 217, 227 (1989)
(Zachs). We defer to an agency's procedural rulings and review
them for "error of law or abuse of discretion." Id. This is so
in particular when the ruling concerns whether to reopen a
proceeding or an administrative record. See Alliance to Protect
Nantucket Sound, Inc. v. Department of Pub. Utils. (No. 2), 461
Mass. 190, 193-194 & n.7 (2011); Box Pond Ass'n v. Energy
Facilities Siting Bd., 435 Mass. 408, 420 (2001) (Box Pond).
The board determined that Brockton Power's PCF was not an
"amended petition" within the meaning of § 69J¼, sixth par. As
interpreted by the board, the "amended petition" provision is
limited to an amended filing submitted by a project proponent
within six months after the board has issued a final decision
rejecting the original petition or imposing conditions from
which the proponent seeks relief. The board contends that its
power under § 69J¼, fifth and sixth pars., to approve a petition
with conditions, combined with its ability to "issue orders with
respect to any matter over which it has jurisdiction," see G. L.
c. 164, § 69H, provides it with more than sufficient authority
to include in a final decision an order requiring the project
proponent to bring back to the board for potential review any
8
proposed changes to the project that may affect the basis on
which it was originally approved.
The board's interpretation of its "statutory mandate will
be disturbed only if the interpretation is patently wrong,
unreasonable, arbitrary, whimsical, or capricious." Box Pond,
435 Mass. at 416, quoting TBI, Inc. v. Board of Health of N.
Andover, 431 Mass. 9, 17 (2000). Where, as here, the relevant
statutes are silent on the means of enforcing compliance with
its orders, the board has broad discretion to establish
appropriate procedures. See Zachs, 406 Mass. at 227-228. An
administrative agency may, as here, "adopt policies through
adjudication as well as through rulemaking." Alliance I, 448
Mass. at 51, quoting Arthurs v. Board of Registration in Med.,
383 Mass. 299, 312–313 (1981). The board's interpretation of
§ 69J¼, fifth and sixth pars., is a reasonable one to which we
accord deference, and the procedure the board adopted to review
potentially material changes to Brockton Power's project does
not constitute an abuse of its discretion.8
2. Water source. The board in its original final decision
approved Brockton Power's proposed use of water from the city's
8
Moreover, requiring new proceedings on the full petition
would be futile, because "[a] final order of an administrative
agency in an adjudicatory proceeding . . . precludes
relitigation of the same issues between the same parties." Box
Pond Ass'n v. Energy Facilities Siting Bd., 435 Mass. 408, 419
(2001) (Box Pond), quoting Tuper v. North Adams Ambulance Serv.,
Inc., 428 Mass. 132, 135 (1998).
9
AWRF for the facility's cooling tower. Because the city refused
to supply recycled wastewater from the AWRF for the facility,
Brockton Power submitted a PCF based on the use of water from
BMWS, which supplies potable water to the city. The board
concluded that the environmental impacts associated with the
Brockton Power's use of BMWS water failed to "minimize the
environmental impacts consistent with the minimization of costs
associated with the mitigation, control, and reduction of the
environmental impacts of the proposed generating facility."
G. L. c. 164, § 69J¼, fifth par.
Brockton Power argues that the board's analysis of
environmental impacts intruded on the authority of the
Department of Environmental Protection (DEP) was unsupported by
substantial evidence. We disagree, and conclude that Brockton
Power has not met its burden of showing that the board's
decision is invalid. See Alliance I, 448 Mass. at 51.
The record reflects the following facts. The city draws
its water supply from the Silver Lake system, the Brockton
Reservoir, the Hubbard Avenue well and, beginning in 2008, a
desalination plant owned and operated by Aquaria, LLC (Aquaria),
in Dighton.9 The city's permits issued under the Water
Management Act (WMA), G. L. c. 21G, authorize withdrawals of
9
The Silver Lake system includes Silver Lake, Monponsett
Pond, and Furnace Pond.
10
11.94 million gallons per day (mgd) from the Silver Lake system
and Brockton Reservoir.10 In addition, the city is authorized to
purchase up to 4.07 mgd from Aquaria, which draws water from the
Taunton River.11
In 1986, subsequent to a prolonged drought, the predecessor
agency of the DEP issued an administrative order and emergency
declaration that, among other requirements, directed the city to
control water demand and withdrawals, and to develop new water
sources. Thereafter, in 1995, an administrative consent order
(ACO) replaced the emergency declaration. Pursuant to the ACO,
the city reestablished its water commission and, among other
measures, prepared a comprehensive water management plan
concerning its water supply. In 1997, a modification to the ACO
10
The Water Management Act (WMA), G. L. c. 21G, permits for
the Silver Lake system authorize withdrawals of 11.11 million
gallons per day (mgd). The WMA permit for the Hubbard Avenue
well authorizes withdrawals of 0.04 mgd, but this well may be
used only in emergency situations with permission of the
Department of Environmental Protection (DEP). The WMA permit
for the Brockton Reservoir authorizes a withdrawal of 0.83 mgd.
Since 1994, however, the city has obtained less than ten per
cent of its supply from the Brockton Reservoir.
11
By contract, the city is entitled to 3.5 mgd from
Aquaria, LLC (Aquaria), in 2014, a withdrawal amount that will
increase incrementally to 4.07 mgd by 2019. The city also has
the right to purchase the first 1 mgd of excess water from
Aquaria and to demand Aquaria produce and provide a minimum of
0.5 mgd of excess water during June, July, and August in
addition to the contracted amounts described above. In 2014,
the city is expected to pay Aquaria $5.8 million for the right
to 3.5 mgd of water from the plant, not including any payments
for excess water purchased.
11
also established a "safe yield" of 10.33 mgd for the city from
its then existing sources, which did not yet include the Aquaria
plant. The ACO provides that in the event the city's water
withdrawals exceed 11.3 mgd or 110 per cent of the "safe
yield,"12 whichever is larger, the excess withdrawal will
"constitute a request for the imposition of a [d]eclaration of
[w]ater [e]mergency."13 From 1996 to 2010, the city's average
annual water use was relatively constant, at approximately 10
mgd. In 2014, the city is estimated to require between 10.15
and 11.44 mgd of water from all sources. The ACO, and the safe
yield limits, remain in effect.14
As proposed to be modified by the PCF, the facility's
cooling tower will require 1.75 mgd of water at full capacity on
12
Pursuant to G. L. c. 21G, § 2, "[s]afe yield" is defined
as "the maximum dependable withdrawals that can be made
continuously from a water source including ground or surface
water during a period of years in which the probable driest
period or period of greatest water deficiency is likely to
occur; provided, however, that such dependability is relative
and is a function of storage and drought probability."
13
In its November, 2009, comprehensive water management
plan (CWMP), which has not yet been approved by the DEP, the
city sought to increase its permissible withdrawals from the
Silver Lake system and Brockton Reservoir to 13.1 mgd from the
currently approved 11.3 mgd.
14
In its draft CWMP required as a part of the MEPA
certification for use of water from the Aquaria plant, the city
requested that the administrative consent order (ACO) be lifted.
However, the DEP has not yet lifted the ACO.
12
a typical day, or 1.1 mgd on an average annual basis.15,16 During
the summer electrical peak period, when the Silver Lake system
is the most stressed, the facility is expected to use water at
the rate of 2.1 mgd, roughly twice its estimated annual average
rate.17
Brockton Power contends that BMWS readily can supply the
volume of potable water necessary for the facility's cooling
tower, essentially because, in Brockton Power's view, "most (if
not all) of the incremental water needed to supply [the
facility] will come from Aquaria rather than the city's historic
system." The board disagreed, noting that the city had never
had to manage the supply demand of a water customer the size of
the Brockton Power facility, that the facility would account for
15
The estimate for operating at full capacity on a typical
day is based on the facility's operation at one hundred per cent
capacity on a day with a temperature of fifty-nine degrees
Fahrenheit. The average annual basis estimate is based on
operation at seventy per cent capacity, which Brockton Power
asserts would be typical for the facility, on a day with a
temperature of fifty-nine degrees Fahrenheit. Due to design
changes, these estimates represent reductions from the volumes
initially approved by the board for the use of effluent from the
city's AWRF.
16
In Brockton Power's original petition as approved by the
board, it was estimated the facility would require 0.257 mgd of
potable water from the city for process and sanitary water
needs. The city has issued a permit approving the facility's
use of this quantity, and this aspect of the original project
filing remains unchanged in Brockton Power's PCF.
17
This estimate is based on operation at full capacity on a
day with a temperature of ninety degrees Fahrenheit.
13
more than ten per cent of the city's current water demand, and
that despite greater flexibility in water withdrawal allocations
due to Aquaria, "some, and possibly even a significant portion,
of the [facility's] municipal water could come from Silver
Lake." Noting that the city's water supply problems have
resulted in significant environmental impacts to the Silver Lake
system over the years and that Brockton Power had not provided
evidence concerning the additional environmental impacts on that
system that might result from Brockton Power's increased
consumption for the project, the board concluded that Brockton
Power had not met its burden to show that the environmental
impacts of the proposed change would be minimized consistent
with the minimization of related costs, as required by § 69J¼,
fifth par.
On appeal, Brockton Power contends that the board
impermissibly intruded into the DEP's statutory and regulatory
authority as expressed in the ACO’s threshold for triggering a
declaration of water emergency for the city. Brockton Power
argues that the DEP's "determination of safe yield as the basis
for the 1995 ACO limit of 11.3 [mgd] specifically included
minimization and balancing of environmental protection factors"
to which the board was obligated to defer in conducting its
review of the PCF. We disagree.
14
In evaluating a claim that the board's determination is
arbitrary, capricious, or unsupported by substantial evidence,
we "give[] great deference to the board's expertise and
experience." Alliance I, 448 Mass. at 51. "In determining
whether an agency decision is supported by substantial evidence,
we must consider the record as a whole and reverse the agency's
decision if 'the cumulative weight of the evidence tends
substantially toward opposite inferences.'" Boston Gas Co. v.
Department of Telecomm. & Energy, 436 Mass. 233, 237 (2002),
quoting Cobble v. Commissioner of the Dep't of Social Servs.,
430 Mass. 385, 391 (1999). Here, Brockton Power has not met its
burden of showing that board's decision was erroneous.
Pursuant to § 69J¼, fifth par., the board is the agency
charged with determining whether a project proponent's petition
is an accurate and complete description of the environmental
impacts of the proposed facility, and also minimizes
environmental impacts consistent with the minimization of costs
associated with mitigation, control, and reduction of
environmental impacts. "A permit issued by the board is only
the first of many permits and licenses that will be required of
a developer of a generating facility, and no other State agency
may issue a construction permit for a generating facility until
it has first been approved by the board." Andover v. Energy
Facilities Siting Bd., 435 Mass. 377, 380 (2001) (Andover). The
15
Legislature has provided for complementary but independent roles
for the board and the DEP. Just as the board does not delegate
or abdicate its statutory responsibility by recognizing the
authority and expertise of the DEP over water management issues,
see id. at 381, the board's independent exercise of its
statutory authority does not intrude upon DEP's authority over
issues relating to municipal water supplies under the WMA, G. L.
c. 21G, §§ 3, 7.
In short, the board's and the DEP's mandates are not
identical although they touch on many of the same environmental
concerns; "sensible administrative coordination" between the two
agencies is necessary.18 See Andover, 435 Mass. at 382. The
board's approval of a petition to construct an energy facility
will not necessarily satisfy the DEP's requirements for a permit
for that facility under the WMA. Cf. id. at 380-381 (discussing
different roles of board and DEP in relation to review of air
emissions). Likewise, a DEP permit issued to a municipality
18
General Laws c. 164, § 69H, fourth par., provides in
part: "In carrying out its functions, the board shall cooperate
with, and may obtain information and recommendations from every
agency of the state government and of local government which may
be concerned with any matter under the purview of the board.
Each state or local government agency is directed to provide
such information and recommendations as may be requested by the
board." In addition, § 69H, second par., provides that the
board membership include "the secretary of energy and
environmental affairs, who shall serve as chairman, . . . the
commissioner of the department of environmental protection,
. . . or the designees of any of the foregoing . . . ."
16
under the WMA is not equivalent to a determination that a
proposed facility would minimize environmental impacts as
required by § 69J¼, nor does the existence of such a permit
compel the board to grant a petition under that statute. Far
from intruding on the DEP's authority, the board would have
abdicated its statutory duties if it had based its decision on
the proposed water source change wholly on the DEP's municipal
water withdrawal determinations under the WMA.19
Moreover, the board's determination was supported by
substantial evidence. In its PCF, Brockton Power contended that
because the city was already withdrawing close to the limit of
its ACO threshold from its traditional sources, the incremental
water volume required by the facility would primarily come from
the Aquaria plant, which provided a significant new source of
19
Although Brockton Power correctly notes that
environmental protection principles, including water
conservation, are an integral component of DEP's water
management authority, it does not follow that the ACO threshold
limit of 11.3 mgd (or 110 per cent of the system's safe yield at
the time of the ACO) is "fully protective" of the environmental
concerns that the board must consider under § 69J¼, fifth par.
Indeed, other than the DEP's general mandate to consider
environmental effects of water withdrawals under G. L. c. 21G,
§ 7, there is no evidence that the ACO specifically considers
the environmental effects of the safe yield threshold. Rather,
the focus of the ACO is to "ensure an ample supply of potable
water is available to [the city]." The safe yield established
by the ACO merely sets a threshold at which a declaration of
water emergency will be imposed on the city if the twelve month
average exceeds the designated amount; it does not purport to
establish a level of water withdrawals that is protective of the
city's traditional water sources, such as the Silver Lake
system.
17
potable water for the city. Consequently, Brockton Power urged,
despite the city's historical water supply challenges, the
facility would not have a negative effect on the environment of
the Silver Lake system. As the board recognized, however, the
city's water conservation efforts and stable population forecast
made it likely that the city's withdrawals would remain under
the ACO threshold. Moreover, Brockton Power had no control over
the origins of the municipal water required by the facility, and
given the city's view of the Aquaria plant as a supplemental
source of its water needs, the volume required by the PCF might
come entirely or at least in part from the Silver Lake system.
Given the evidence that the city's municipal water withdrawals
continue to have a significant environmental impact on the
Silver Lake system, the board concluded that Brockton Power had
not met its burden of proving that the environmental impacts of
the incremental potable water usage from BMWS had been minimized
consistent the requirements of § 69J¼, fifth par.
Brockton Power complains that the board did not analyze
sufficiently the environmental impacts of the additional
withdrawals anticipated by the PCF on the Silver Lake system,
but this appears to have been the result of the position the
company itself took before the board: the PCF filing proceeded
on the assumption that most or all of the increased water
18
required by the facility would come from the Aquaria plant.20
Nevertheless, it is apparent that the board did analyze and
consider the effect of the proposed water use on the city’s
traditional water sources, including two studies and expert
testimony indicating that the city's withdrawals have a
continued impact on the environment of the Silver Lake system by
degrading freshwater mussel habitat and increasing environmental
stress on the Jones River, the major tributary of Silver Lake.
Moreover, contrary to Brockton Power's assertion, the board
considered the city's water conservation progress in light of
continuing environmental challenges to the Silver Lake system
and the facility's projected water needs.21
20
In its PCF decision, the board noted: "The [c]ompany did
not provide information on or analysis of the different
environmental impacts on the Silver Lake system that would
result from the [c]ity's water consumption with the [p]roject's
use of [Brockton municipal water supply (BMWS)] water as
compared to the [c]ity's water consumption without the
[p]roject. Rather the [c]ompany restricted its argument to the
unsubstantiated and, in fact, highly questionable, claim that
its cooling tower water would predominately come from Aquaria.
Without analysis specific to the Silver Lake system, the
environmental impacts of the [p]roject change cannot be reliably
assessed."
21
Brockton Power's remaining arguments are without merit.
The board need not address or make findings with respect to all
the evidence in the record. See Box Pond, 435 Mass. at 418.
The board's initial approval of 0.257 mgd of BMWS water for
sanitary and process use by the facility does not compel the
conclusion that the proposed use of 1.1 mgd for the facility's
cooling tower minimized environmental impacts as required by
§ 69J¼. Further, the board did not deviate impermissibly from
its precedent. Although the board previously has granted siting
19
Although the board's denial of the PCF with respect to BMWS
appears to preclude construction of the facility as currently
proposed, we briefly review the city's appeal of the board's
approval of the two other proposed changes.22
3. Elimination of ULSD capacity. As initially approved by
the board, the facility would use ULSD as an alternative fuel
for up to sixty days per year. In its PCF filing, Brockton
Power proposed to construct the facility with natural gas-only
generators, eliminating the facility's capacity to use ULSD.23
permits for energy facilities utilizing municipal water for
their cooling towers, the board's decision on the PCF here
discussed and distinguished these precedents based on the
evidence of environmental threats to the Silver Lake system
contained in the record. See Tofias v. Energy Facilities Siting
Bd., 435 Mass. 340, 349 (2001), quoting Robinson v. Department
of Pub. Utils., 416 Mass. 668, 673 (1993) ("'reasoned
consistency' . . . means only 'that any change from an
established pattern of conduct must be explained'"). Finally,
Brockton Power asserts also that the board's decision interfered
with its right to obtain potable water from the BMWS in a
nondiscriminatory manner. Because of the projected quantity of
water that Brockton Power will need for the facility's cooling
tower, discussed infra, the company is not situated similarly to
other users of the system. See Rounds v. Board of Water & Sewer
Comm'rs, 347 Mass. 40, 44 (1964).
22
The board concluded, "The evidence in this case
demonstrated that the three proposed [p]roject changes are not
interrelated in such a way that implementation of one [p]roject
change without implementation of one, or both, of the other two
changes is prevented. Accordingly, our findings stated above
are made considering each proposed change on a stand-alone
basis."
23
The PCF did not propose modifying the facility's use of
three ULSD-powered "black-start" generators, used for restarting
the turbine when power is not available.
20
According to Brockton Power, a gas-only plant would reduce air
emissions, visual impacts, most ULSD deliveries, and the
facility's water requirements, while the expansion of gas
supplies in the Northeast would guarantee the reliability of the
facility's energy supply. The board found that a gas-only plant
would "reduce the environmental impacts, consistent with the
minimization of costs associated with the mitigation, control,
and reduction of the environmental impacts" of the facility, as
required by § 69J¼, fifth par.
On appeal, the city primarily asserts deficiencies with
respect to the air emission findings in the board's original
final decision.24 As stated previously, in reviewing a PCF, the
board need not consider issues that have already been decided in
the original decision. The board's PCF decision analyzed the
PCF for accuracy and completeness and "compared the
24
For example, the city argues that the board erred by
relying on the Environmental Protection Agency's National
Ambient Air Quality Standards (NAAQS) to evaluate the facility's
estimated emissions, and by using Logan Airport meteorological
data. We address these issues in Brockton v. Energy Facilities
Siting Bd. (No. 1), ante (2014) (Brockon [No. 1]), also
decided today. In addition, the city alleges that the board
erred by not considering an alternative turbine and cooling
tower design. However, the board was under no obligation to
examine design alternatives in the context of a review of the
PCF for a facility that it had already approved. See Box Pond,
435 Mass. at 419-420. Finally, the city argues that the board
failed to apply the Environmental Justice policy (EJ policy) to
the PCF. We also discuss the EJ policy in Brockton (No. 1),
supra. In this appeal, the city does not claim that the board
failed to implement the procedural protections of the EJ policy
in relation to the PCF.
21
environmental impacts of the facility as originally approved
with the environmental impacts of the project as changed." This
approach is reasonable and consistent with the board's statutory
mandate. See Zachs, 406 Mass. at 227 ("administrative agencies
have broad discretion over procedural aspects of matters before
them"). Our review of the city's appeal is limited to new
issues raised by the PCF. See Box Pond, 435 Mass. at 419-420
(rejecting attempt to relitigate issues already decided in
underlying proceeding). With respect to the elimination of ULSD
fuel, we conclude that Brockton Power's PCF was accurate and
complete, and "minimize[d] the environmental impacts consistent
with the minimization of costs associated with the mitigation,
control, and reduction of the environmental impacts." G. L.
c. 164, § 69J¼, fifth par.
The record indicates that with the elimination of ULSD, the
emissions of all criteria pollutants will be reduced from the
level estimated in the original petition, which the board has
already approved (and we have upheld).25 Accordingly, there is
25
Brockton Power's estimated percentage reductions based on
a comparison of the emission estimates in the proposal to those
in the original final decision are as follows: nitrogen
dioxide (twenty-nine per cent); carbon monoxide (ten per cent);
particulate matter up to ten micrometers in diameter (thirty-
nine per cent); particulate matter up to 2.5 micrometers in
diameter (PM2.5) (forty-two per cent); sulfur dioxide (twenty-
three per cent); and volatile organic compounds (thirty-eight
per cent). A smaller portion of this reduction is due to
updated estimates (with respect to the proportion of particulate
22
no basis upon which the board could have concluded that the PCF
would not minimize environmental impacts, as required by G. L.
c. 164, § 69J¼, fifth par.26 The city has not met its burden of
showing that the board's decision is invalid, unsupported by
substantial evidence, or an abuse of discretion. See Alliance
I, 448 Mass. at 51.
The city also argues that the board erred by
underestimating the carbon monoxide (CO) emissions from the
facility by basing its analysis on Brockton Power's allegedly
inaccurate estimates of plant "start-up and shut-down" events.27
In its PCF decision, the board noted that the city and Brockton
Power disagreed about the modeling of the CO emissions. Without
analyzing the dispute, the board noted Brockton Power's lower
matter classified as PM2.5) and improved aerodynamic downwash
resulting from changes in the design features in the PCF. See
note 26, infra.
26
With respect to the NAAQS for annual PM2.5 levels,
Brockton Power's new estimate, based on a gas-only plant,
updated projections regarding emissions, and design changes, is
9.46 micrograms per cubic meter (µg/m3) annual PM2.5. In Brockton
(No. 1), supra, we affirmed the board's approval of annual PM2.5
at a level of 10.15 µg/m3.
27
Brockton Power estimated that the gas-only facility plant
would emit 98.5 tons per year (tpy) of CO, a ten per cent
reduction from 108.9 tpy for the facility approved by the board
in the original final decision. According to the city's expert,
the correct estimate for the facility's CO emissions is 138.8
tpy. The city alleges that the lower figure, accepted by the
board, is "conveniently below the then-applicable 100 tpy
threshold for a rigorous review under the [F]ederal Clean Air
Act's Prevention of Significant Deterioration . . . permitting
process."
23
figures and stated that the facility would be subject to
"enforceable annual and hourly limits . . . set out in [the
DEP's] Conditional Air Plan Approval." Brockton Power's CO
emissions estimate, 98.5 tpy, represents 8.6 per cent of the
NAAQS threshold for one-hour CO, and 18.9 per cent of the NAAQS
threshold for eight-hour CO. Although the city's estimate of
138.8 tpy is higher than Brockton Power's, it is still well
below the NAAQS limit for this pollutant. The board is entitled
to rely on the NAAQS thresholds to determine whether a project
proposal has minimized the environmental impacts pursuant to its
review. See Brockton (No. 1), supra at . The board did not
err by concluding that the CO emissions from a gas-only plant
satisfied the standards of § 69J¼, fifth par.
4. Structural design changes. In the original final
decision, the board declined to grant Brockton Power's requested
zoning exemption under G. L. c. 40A, § 3, which would have
excused the facility from the Brockton zoning ordinance.
Brockton Power did not appeal this aspect of the board's
original decision. In its PCF, however, Brockton Power proposed
three changes to the facility as approved in the underlying
decision, which, in its view, would make the facility compliant
with the city's zoning ordinance.28 Although the board took no
28
First, Brockton Power proposed to replace the 130-foot
building enclosing the heat recovery steam generator with four
24
position on whether the modifications would meet the city's
zoning ordinance, it analyzed the changes with respect to noise
and visual impacts, and concluded that the changes minimized the
facility's environmental impacts as required by G. L. c. 164,
§ 69J¼, fifth par.29
On appeal, the city argues that the board erred by
approving a project that does not comply with a local zoning
ordinance. This argument is without merit. In contrast to the
minimization of visual and noise impacts, compliance with local
zoning is not a precondition for the approval of a siting
petition under § 69J¼. The board's determination that zoning
issues were "outside the scope" of its § 69J¼ review is
reasonable.
5. Conclusion. We affirm the board's PCF decision in all
respects.
So ordered.
116-foot sound walls. Second, Brockton Power proposed to reduce
the height of the main power facility building from sixty-four
to sixty feet. Third, Brockton Power proposed to redesign the
accessory buildings so that all of them would be under twenty-
five feet in height.
29
At the time of the board's PCF decision, the zoning
dispute was the subject of a case pending before the Land Court.