City of Brockton v. Energy Facilities Siting Board (No. 1) ( 2014 )

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SJC-11406
CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD (No. 1)
(and two consolidated cases 1).
Suffolk. March 4, 2014. - July 31, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ. 2
Energy Facilities Siting Board. Public Utilities, Energy
company, Electric company. Electric Company.
Massachusetts Environmental Policy Act. Administrative
Law, Decision, Judicial review, Substantial evidence.
Environment, Air pollution, Environmental impact report.
Municipal Corporations, Electric plant, Water supply.
Civil actions commenced in the Supreme Judicial Court for
the county of Suffolk on August 24, August 28, and September 2,
2009.
After consolidation, the case was reported by Spina, J.
Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, &
Staci Rubin with her) for Frank J. Babbin & others.
John L. Holgerson for town of West Bridgwater.
Gregor I. McGregor (Nathaniel Stevens with him) for city of
Brockton.
1
Frank J. Babbin & others vs. Energy Facilities Siting
Board; Town of West Bridgewater vs. Energy Facilities Siting
Board.
2
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
Sookyoung Shin, Assistant Attorney General, for Energy
Facilities Siting Board.
David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler
with him) for Brockton Power Company LLC.
The following submitted briefs for amici curiae:
Veronica Eady for Conservation Law Foundation.
Rahsaan D. Hall, Matthew Cregor, Sasha N. Kopf, Tyler D.
Crosby, & Priya A. Lane for Lawyers' Committee for Civil Rights
and Economic Justice.
Wendy B. Jacobs & Aladdine D. Joroff for Hands Across the
River Coalition.
BOTSFORD, J. Brockton Power Company LLC (Brockton Power,
or company) filed a petition pursuant to G. L. c. 164, § 69J¼
(§ 69J¼), with the Energy Facilities Siting Board (board) to
construct and operate a 350-megawatt combined-cycle energy
generating facility (facility) powered by natural gas and ultra-
low sulfur distillate (ULSD) on a 13.2-acre lot in the city of
Brockton (city). After extensive hearings, the board approved
Brockton Power's petition, with conditions. The city, the town
of West Bridgewater (town), and a group of residents of the city
and the town (residents), all interveners in the proceedings
before the board (collectively, interveners), filed appeals in
the county court pursuant to G. L. c. 164, § 69P, and G. L.
c. 25, § 5. 3 A single justice reserved and reported the case to
the full court. 4
3
The following interveners participated in the proceeding
before the board: Taunton River Watershed Alliance; the city of
Brockton (city); the town of West Bridgewater (town); various
residents of the city and the town who were represented by
Alternatives for Communities and Environment, Inc.; and New
England Power Company, Custom Blends, LLC. In addition the
3
On appeal the interveners argue 5 that the board (1) failed
to adopt and apply the 2002 environmental justice policy that is
a binding environmental protection policy of the Commonwealth;
(2) improperly relied on the National Ambient Air Quality
Standards for fine particulate matter; (3) erroneously accepted
Logan Airport weather data as representative of the proposed
facility site; (4) erroneously determined that the facility's
impact on the town's water supply was accurate and complete; and
following limited participants took part in the proceedings:
Brockton City Councilor Thomas G. Brophy; State Representative
Geraldine Creedon; former State Senator Robert S. Creedon, Jr.;
Linda Balzotti, mayor of the city; State Representative
Christine E. Caravan; and Susan Nicastro.
4
The single justice granted the parties' joint motion to
consolidate the appeals and proceed on a single record. In
2011, while the consolidated appeal was pending, Brockton Power
Company LLC (Brockton Power or company) submitted a project
change filing (PCF) to the board, seeking approval of
modifications to its proposal including changing its proposed
water source from wastewater obtained from the advanced
wastewater reclamation facility (AWRF) operated by the city to
the city's municipal potable water supply, eliminating the use
of ultra-low sulfur distillate (ULSD) as an auxiliary fuel, and
certain changes to facility structure height. The board denied
the PCF with respect to the modification of the water source for
the project, but approved the elimination of the secondary fuel
source and changes to facility structure. Brockton Power and
the city appealed; we consider the appeals in Brockton Power Co.
v. Energy Facilities Siting Bd., post (2014).
5
We list here all the claims raised by the interveners,
some of which are raised by all the interveners and some of
which are not.
4
(5) improperly designated delivery routes to and from the
facility. We affirm the decision of the board. 6
Section 69J¼ requires the board to conduct an evidentiary
hearing 7 on a petition to construct a generating facility within
180 days of filing, and to approve a petition within one year of
filing if it "determines that the petition meets the following
requirements: (i) the description of the proposed generating
facility and its environmental impacts are substantially
accurate and complete; (ii) the description of the site
selection process used is accurate; . . . (iii) the plans for
the construction of the proposed generating facility are
consistent with current health and environmental protection
policies of the commonwealth and with such energy policies as
are adopted by the commonwealth for the specific purpose of
guiding the decisions of the board; [and] (iv) such plans
minimize the environmental impacts consistent with the
minimization of costs associated with the mitigation, control,
and reduction of the environmental impacts of the proposed
6
We acknowledge the amicus briefs submitted in support of
the interveners' appeals by the Conservation Law Foundation,
Hands Across the River Coalition, and the Lawyers' Committee for
Civil Rights and Economic Justice.
7
Under G. L. c. 164, § 69J¼ (§ 69J¼), fourth par., the
evidentiary hearing is an adjudicatory proceeding conducted
pursuant to G. L. c. 30A.
5
generating facility." G. L. c. 164, § 69J¼, fourth & fifth
pars.
Pursuant to G. L. c. 164, § 69P, in reviewing a decision of
the board, we are limited to considering
"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]."
We give the board's evidentiary rulings great deference, and the
interveners, as appellants, bear the burden of showing that the
board's decision is invalid. G. L. c. 25, § 5, seventh par.
Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities
Siting Bd., 448 Mass. 45, 51 (2006) (Alliance I).
1. Environmental justice policy. The interveners 8 argue
that the board erred by failing properly to apply the
Commonwealth's environmental justice (EJ) policy, as promulgated
by the predecessor to the Executive Office of Energy and
Environmental Affairs (EOEEA). 9 The resolution of this issue
8
The residents principally advance the argument concerning
the environmental justice (EJ) policy in this case, joined by
all the other interveners.
9
The EJ policy was promulgated in 2002 by the Executive
Office of Environmental Affairs (EOEA), the predecessor to the
Executive Office of Energy and Environmental Affairs (EOEEA).
At the time the EJ policy was issued, the Energy Facilities
Siting Board (board) was under the jurisdiction of the Executive
6
requires a two-part analysis: whether the EJ policy is among
the factors the board must consider under § 69J¼ (and is
therefore subject to our review); and if so, whether the board
correctly applied the policy to Brockton Power's petition.
The EJ policy states: "Environmental justice is based on
the principle that all people have a right to be protected from
environmental pollution and to live in and enjoy a clean and
healthful environment. Environmental justice is the equal
protection and meaningful involvement of all people with respect
to the development, implementation, and enforcement of
environmental laws, regulations, and policies and the equitable
distribution of environmental benefits." The EJ policy defines
"[e]qual [p]rotection" to mean "that no group of people, because
of race, ethnicity, class, gender, or handicap bears an unfair
share of environmental pollution from industrial, commercial,
state and municipal operations or have limited access to natural
resources, including greenspace (open space) and water
Office of Consumer Affairs. The EJ policy expressly states that
"[t]his policy is not intended to regulate agencies outside the
EOEA secretariat. . . . This policy is not intended to
interfere with, super[s]ede, or create any new obligations on
the [board], an entity which is not by law or otherwise a part
of the EOEA secretariat." In April, 2007, the Legislature
created the EOEEA, and placed the former EOEA and two energy-
related agencies, the Department of Public Utilities (under
which the board is organized, see G. L. c. 164, § 69H) and the
Department of Energy Resources, within the new executive office.
See St. 2007 c. 19, §§ 12, 28, 53. See also G. L. c. 21A, § 1.
The board concluded in this case that as of April, 2007, it was
subject to the EOEEA's EJ policy, and all parties agree with
this determination.
7
resources." 10 An "[e]nvironmental [j]ustice [p]opulation" is
defined as "a neighborhood whose annual median household income
is equal to or less than [sixty-five] percent of the statewide
median or whose population is made up [of twenty-five] percent
[m]inority, [f]oreign [b]orn, or [l]acking [e]nglish [l]anguage
[p]roficiency." Brockton Power's proposed project site was
within one-half mile of EJ communities to the west, north, and
northeast.
The EJ policy directs agencies within the EOEEA to "develop
their own strategies to proactively promote environmental
justice in all neighborhoods in ways that are tailored to the
specific mission of each agency. . . . [EOEEA] agencies shall
identify and promote agency-sponsored projects, funding
decisions, rulemakings or other actions intended to further
environmental justice in the Commonwealth." 11 The EJ policy also
10
"Meaningful [i]nvolvement" is defined in the EJ policy to
mean "that all neighborhoods have the right to participate in
partnership with government in environmental decision-making
including needs assessment, planning, implementation,
enforcement, and evaluation, and neighborhoods are enabled and
administratively assisted to participate fully through education
and training means, and encouraged to develop environmental
stewardship."
11
The board apparently has not yet undertaken any
"rulemakings" or developed guidelines in order to carry out
these EJ policy directives, but of course it may establish rules
and agency policy through adjudication as well as rulemaking.
See Alliance to Protect Nantucket Sound, Inc. v. Energy
Facilities Siting Bd., 448 Mass. 45, 51 (2006), quoting Arthurs
v. Board of Registration in Med., 383 Mass. 299, 312–313 (1981).
8
mandates specific agency action in two areas: enhanced public
participation in EJ communities and, in certain circumstances,
enhanced substantive review of new projects in EJ communities
when a proposed generating facility exceeds thresholds
established by the Massachusetts Environmental Policy Act, G. L.
c. 30, §§ 61-62H (MEPA). 12
With respect to public participation, the EJ policy
mandates that "all [EOEEA] agencies shall have an inclusive,
robust public participation program that focuses agency
resources on outreach activities that enhance public
participation opportunities for agency activities that
potentially affect EJ populations." The policy calls for
See also Securities & Exch. Comm'n v. Chenery Corp., 332 U.S.
194, 203 (1947).
12
The Massachusetts Environmental Policy Act, G. L. c. 30,
§§ 61-62H (MEPA), and its implementing regulations establish a
process to ensure that State permitting agencies have adequate
information on which to base their permitting decisions, and
that environmental impacts of the project are avoided or
minimized. See G. L. c. 30, §§ 61 & 62C, fourth par.; 301 Code
Mass. Regs. § 11.00 (2013). Pursuant to MEPA, a project
proponent requiring a permit from a State agency files an
environmental notification form (ENF) with the Secretary of the
EOEEA (Secretary), who determines whether the project meets the
review threshold requiring an environmental impact report (EIR).
See G. L. c. 30, § 62A; 301 Code Mass. Regs. § 11.06. If so,
and after submission of a final environmental impact report
(FEIR) and opportunity for review by the public, the Secretary
certifies whether the FEIR has complied with MEPA. G. L. c. 30,
§ 62C, fourth par. Certification under MEPA, however, "does not
constitute final approval or disapproval of a particular
project, which ultimately is left to various permitting
agencies." Allen v. Boston Redev. Auth., 450 Mass. 242, 247
(2007), citing G. L. c. 30, § 62C.
9
"enhanced public participation" through "use of alternative
media outlets such as community or ethnic newspapers . . . and
translation of materials or interpretation services at public
meetings" in cases where a project exceeds Environmental
Notification Form (ENF) thresholds for "air, solid and hazardous
waste . . . or wastewater and sewage sludge treatment and
disposal" as determined by the Secretary of EOEEA (Secretary)
under MEPA and its implementing regulations, and the project
site is within one mile (or, in the case of air emissions, five
miles) from an EJ population.
In addition to these procedural requirements, the EJ policy
substantively provides for enhanced analysis and review of
"impacts and mitigation" in relation to projects that meet two
conditions: (1) the project exceeds "a mandatory EIR
[environmental impact report] threshold for air, solid and
hazardous waste . . . , or wastewater sewage sludge treatment
and disposal"; and (2) the project is located within one mile of
an EJ population, or within five miles for projects exceeding
the EIR threshold for air. "Enhanced analysis . . . may include
analysis of multiple air impacts; data on baseline public health
conditions within affected EJ [p]opulation; analysis of
technological, site planning, and operational alternatives to
reduce impacts; and proposed on-site and off-site mitigation
10
measures to reduce multiple impacts and increase environmental
benefits to the affected EJ [p]opulation."
The project at issue here, construction of Brockton Power's
facility, was subject to mandatory MEPA review. In conducting
that review, the Secretary certified that because the project
exceeded the ENF threshold for air and is located within five
miles of an EJ community, it was subject to enhanced public
participation under the EJ policy. However, the Secretary also
certified that the project did not exceed the mandatory EIR
threshold for air pollutants, and therefore was not subject to
enhanced review under the EJ policy.
The board addressed the EJ policy in its decision,
interpreting it to provide for both "enhanced analysis" and
additional procedures during a review of a petition filed with
the board pursuant to § 69J¼. The board concluded, however,
that the EJ policy's enhanced analysis provisions applied only
to § 69J¼ petitions that propose a generating facility that
would exceed the EIR threshold for air emissions. Because the
Secretary's MEPA certification had determined that the
facility's expected emissions did not exceed this threshold, the
board found that the policy, as applied to Brockton Power's
petition, was limited to additional procedures, namely,
11
"enhanced outreach and public participation" during the board's
review process. 13
Before turning to the interveners' claims, however, we
first discuss whether the board's interpretation and application
of the EJ policy in its decision is subject to our review at
all. The board, joined by Brockton Power, contends that
judicial review of this aspect of its decision is not available,
because the EJ policy states that it "is intended only to
improve the internal management of [EOEEA] agencies" and
expressly disclaims the creation of "any right, benefit, or
trust responsibility, substantive or procedural, enforceable at
law or equity," as well as "any right to judicial review
involving compliance or noncompliance" with the policy.
The board's contention fails. As the board recognized in
its decision, § 69J¼, fifth par., requires the board to
determine whether "plans for the construction of the proposed
generating facility are consistent with current health and
environmental protection policies of the commonwealth and with
13
The board concluded that Brockton Power had complied with
the "enhanced outreach and public participation" requirements of
the EJ policy. As the board noted, the procedures in this case
"included numerous public meetings, translations of Company-
issued public information into multiple languages, translation
[of] material on its website into multiple languages, and the
posting of meeting notices in multiple languages at many
locations within the [city]. The record shows both enhanced
outreach and tremendous public participation through the [board]
proceedings." The interveners do not argue that the company's
petition was deficient in this respect.
12
such energy policies as are adopted by the commonwealth for the
specific purpose of guiding the decisions of the board," and
also that the EJ policy is among the "environmental protection
policies of the Commonwealth." 14 It follows, therefore, that the
board's application of the EJ policy is subject to judicial
review as part of the court's consideration whether the board's
decision meets the requirements of § 69J¼, fifth par. Cf.
Communities Against Runway Expansion, Inc. v. Federal Aviation
Admin., 355 F.3d 678, 688-689 (D.C. Cir. 2004) (where defendant
agency included analysis of compliance with Federal EJ executive
order on environmental justice in its evaluation of compliance
with National Environmental Policy Act [NEPA], issue of agency's
compliance with EJ executive order was reviewable by court
because it arose under NEPA, not executive order, which
disclaimed right of judicial review). Accord Allen v. National
Insts. of Health, 974 F. Supp. 2d 18, 46-47 (D. Mass. 2013). 15
The standard of review is that set out in § 69P, namely, whether
14
General Laws c. 21A, § 2 (1), provides that "the [EOEEA]
and its appropriate departments and divisions shall carry out
the state environmental policy and in doing so . . . shall . . .
develop policies, plans, and programs for carrying out their
assigned duties." By placing the board under the authority of
the EOEEA, the Legislature made it subject to the State
environmental policies as identified by the EOEEA, including the
EJ policy.
15
But cf. Sur Contra La Contaminacion v. Environmental
Protection Agency, 202 F.3d 443, 449 (1st Cir. 2000) (declining
to review claim that Environmental Protection Agency's decision
to grant environmental permit was in violation of executive
order).
13
the board's application "was supported by substantial evidence
of record in the board's proceedings; and was arbitrary,
capricious or an abuse of discretion."
The interveners' claims concerning the EJ policy, however,
fail on the merits. As mentioned, the Secretary certified that
the proposed facility did not exceed the mandatory EIR threshold
under MEPA for air pollutants. 16 Under the express language of
the EJ policy, therefore, Brockton Power's petition was not
subject to "enhanced analysis." The interveners do not
challenge the Secretary's determination under MEPA, nor do they
argue that the board failed to meet the EJ policy's procedural
requirements. In the context of this case, we cannot accept the
interveners' contention that, independent of a triggering MEPA
threshold for enhanced analysis, the EJ policy required the
16
As explained, the EJ policy calls for "enhanced analysis
of impacts and mitigation" when, among other possible triggering
factors, increased air pollution above the "mandatory EIR
threshold for air" is likely to be the result of the proposed
project. With respect to air, the MEPA regulations call for a
mandatory EIR if the new project, "after construction and the
imposition of required controls," is likely to produce, inter
alia, potential emissions of "250 [tons per year (tpy)] of any
criteria air pollutant; 40 tpy of any [hazardous air pollutant
(HAP)]; or 100 tpy of any combination of HAPs." 301 Code Mass.
Regs. § 11.03(8)(a)(1). With respect to Brockton Power's
proposed project, the Secretary, in conducting his MEPA review,
determined that it would result in the following increases
related to air pollution: 85 tpy of particulate matter; 109 tpy
of carbon monoxide; 7 tpy of sulfur dioxide; 31 tpy of volatile
organic compounds; 107 tpy of oxides of nitrogen; 1.134 million
tpy of carbon dioxide; and 7.247 tpy of HAPs. There is no
argument made here that these projected quantities exceed the
mandatory EIR threshold for air pollution.
14
board to apply unspecified "substantive equal protection"
principles to its review of Brockton Power's proposed facility
and that the board's failure to do so rendered its decision
arbitrary, capricious, or an abuse of the board's discretion.
The interveners do not point to a specific or affirmative
requirement in the EJ policy to do so, and we have found none. 17
2. Air quality standards. The city and the residents
object to the board's reliance on the National Ambient Air
Quality Standards (NAAQS) to review the environmental and
cumulative health impacts of particulate matter 2.5 micrometers
or less in diameter (PM2.5). They argue that the NAAQS for PM2.5
are insufficiently protective of public health, and that the
board's reliance on the standards is unsupported by substantial
evidence.
17
The issue of timing is important here -- i.e., the fact
that the petition in this case was filed within a few months
after the EJ policy became applicable to the board. The EJ
policy does impose a general, but affirmative, requirement on
all agencies covered by it (and therefore the board) to develop
strategies designed "to proactively promote environmental
justice in all neighborhoods" in a manner tailored to and
consistent with that agency's "specific mission"; and to
promote, inter alia, "rulemakings or other actions intended to
further environmental justice in the Commonwealth." There may
be an argument that under this general requirement, the board,
in connection with issuing "its own list of [petition review]
guidelines" pursuant to § 69J¼, fourth par., or otherwise, has
an obligation under the EJ policy to incorporate specific
environmental justice principles into its consideration of
petitions to construct generating facilities. We do not reach
the question, however, because even if the EJ policy did impose
such an obligation, the board reasonably could not be expected
to have carried it out in time to apply to its review in this
case.
15
The Clean Air Act, see 42 U.S.C. §§ 7408, 7409 (2006),
directs the Environmental Protection Agency (EPA) to develop
national standards for ambient air quality -- the NAAQS -- that
are to cover for air pollutants "reasonably . . . anticipated to
endanger public health or welfare," including particulate
matter. 18 42 U.S.C. § 7408(a)(1)(A). The Clean Air Act charges
the EPA with promulgating NAAQS that are protective of public
health with an adequate margin of safety. See 42 U.S.C.
§ 7409(b); 40 C.F.R. Part 50 (2006). 19 In setting the NAAQS, the
EPA relies on criteria developed by EPA staff that "accurately
reflect the latest scientific knowledge useful in indicating the
kind and extent of all identifiable effects on public health or
welfare" from the pollutant, 42 U.S.C. §§ 7408(a)(2), and
recommendations of the Clean Air Scientific Advisory Committee,
a seven-member, independent scientific review committee. 42
18
No challenge is made to the board's reliance on NAAQS
standards for other criteria pollutants analyzed by the board:
sulfur dioxide, carbon monoxide, nitrogen dioxide, ozone, and
particulate matter with diameter up to 10 micrometers in
diameter.
19
The National Ambient Air Quality Standards (NAAQS) are
expressed as ambient pollutant concentrations, measured in
micrograms per cubic meter (µg/m3), and averaged over a specified
period of time, usually twenty-four hours or one year. In
addition to the "primary" standards intended to protect human
health, 42 U.S.C. § 7409(b)(1) (2006), the Clean Air Act
provides for "secondary" NAAQS to "protect the public welfare
from any known or anticipated adverse effects associated with
the presence of such air pollutant in the ambient air." 42
U.S.C. § 7409(b)(2) (2006). The secondary NAAQS for PM2.5 are
not at issue in this appeal.
16
U.S.C. § 7409(d)(2). The EPA reviews, and, if necessary
revises, the NAAQS every five years. 42 U.S.C. § 7409(d)(1).
The NAAQS are implemented, maintained, and enforced by the
States under EPA-approved State implementation plans. 42 U.S.C.
§ 7410. See Reitze, Air Quality Protection Using State
Implementation Plans -- Thirty-Seven Years of Increasing
Complexity, 15 Vill. Envtl. L.J. 209, 210-213 (2004). In
Massachusetts, the Department of Environmental Protection (DEP),
in the course of the permitting process for new emission
sources, enforces NAAQS in part by comparing total level of
expected criteria pollutant (the sum of the background
concentration and expected emissions from the new source) with
the NAAQS. See, e.g., G. L. c. 111, § 142D; 310 Code Mass.
Regs. §§ 7.00 (2014). 20 Pursuant to its statutory mandate to
review siting petitions for new energy facilities, the board
relied on NAAQS to determine whether Brockton Power's petition
"minimize[d] the environmental impacts consistent with the
minimization of costs associated with the mitigation, control,
20
General Laws c. 111, § 142D, authorizes the Department of
Environmental Protection (DEP) to promulgate a State
implementation plan and comply with Federal Clean Air Act
requirements. Pursuant to 310 Code Mass. Regs. § 7.02(3)(j)
(2005), the DEP will approve a plan for an energy facility
subject to, inter alia, a requirement that the facility's
emissions "do not result in air quality exceeding either the
Massachusetts or National Air Quality Standards." The DEP has
not promulgated a standard for PM2.5. See 310 Code Mass. Regs.
§ 6.04 (2002). Accordingly, the DEP and the board refer to the
NAAQS standard for this pollutant.
17
and reduction of the environmental impacts of the proposed
generating facility." G. L. c. 164, § 69J¼, fifth par.
At the time of Brockton Power's petition, the annual NAAQS
for PM2.5 was 15 micrograms per cubic meter (µg/m3). 40 C.F.R.
Part 50. According to Brockton Power's atmospheric dispersion
modeling (AERMOD) analysis -- a model approved by the EPA, 70
Fed. Reg. 68,218 (2005) -- the relevant background annual
concentration of PM2.5 for the facility site was 9.9 µg/m3. 21 Upon
completion, the facility would emit approximately 85 tons per
year (tpy) of PM2.5 pollutants, resulting in a 0.25 µg/m3 increase
in the annual PM2.5. These emissions represent a cumulative
annual impact of 10.15 µg/m3 PM2.5, or about two-thirds of the
annual NAAQS standard for this criteria pollutant at the time
the petition was filed. 22 Considering this evidence, the board
determined that Brockton Power's description of the health and
environmental impacts of PM2.5 emissions from the facility was
substantially accurate and complete, and that such environmental
impacts would be minimized under the proposal.
The interveners argue, however, that by relying on the
NAAQS set by the EPA and DEP, the board failed to comply with
21
Brockton Power established background ambient
concentration levels for PM2.5 from a DEP monitoring site in
Brockton.
22
The board noted that Brockton Power conservatively had
included all expected emissions of particulate matter over ten
micrometers in diameter (PM10) in its PM2.5 analysis, which
necessarily overestimated the PM2.5 emissions.
18
its independent duty to analyze the petition under G. L. c. 164,
§ 69J¼, fifth par., and that, moreover, the NAAQS standards for
PM2.5 are themselves arbitrary, capricious, and not based on
substantial evidence. The interveners' arguments fail. As the
board explained, it "gives great weight to expected compliance
with [EPA] and [DEP] air quality regulatory requirements as an
indicator of whether the potential impacts to air quality of a
proposed facility would be minimized." The board's position is
reasonable in light of the EPA's mandate and expertise under the
Clean Air Act, 42 U.S.C. §§ 7408, 7409, as implemented by the
EPA's regulations and enforced by the DEP in Massachusetts.
Moreover, the NAAQS methodology, as well as the data used to
calculate the estimated ambient pollutant concentrations for the
facility, were fully presented in Brockton Power's petition and
analyzed in the board's final decision. 23 Although the board
must ensure that the facility's environmental impacts are
accurately modeled and described, G. L. c. 164, § 69J¼, fifth
par., it is not required to establish its own quantitative
23
The board expressly addressed the issue whether the
annual NAAQS standards for PM2.5 are adequate to demonstrate that
the cumulative health impacts of criteria pollutants are
minimized, including whether the standards are adequate to
protect public health; the board was not required in its
decision specifically to discuss testimony by the residents'
expert that measurable health effects occur below the NAAQS
threshold for PM2.5. See Box Pond Ass'n v. Energy Facilities
Siting Bd., 435 Mass. 408, 418 (2001) ("An agency need not refer
to all evidence in its decision").
19
values with respect to criteria pollutants (or any other
environmental impact) to guide its siting decisions. "The
legislative scheme contemplates that much of what the board does
in the area of air pollution will be dependent on decisions of
the department, which has a significant and independent role in
the permit process for new generating facilities." Andover v.
Energy Facilities Siting Bd., 435 Mass. 377, 381-82 (2001)
(Andover). We conclude that the board's reliance on the NAAQS
was consistent with its statutory mandate and precedent, and was
neither arbitrary nor an abuse of discretion. See Alliance I,
448 Mass. at 51.
The interveners may, of course, challenge the basis of a
NAAQS standard set by the EPA and relied on by the board in its
statutory review. Here, the interveners contend that the NAAQS
standard for PM2.5 used by the EPA and DEP has been discredited,
and that, consequently, the board erred by relying on this
standard. This argument is also without merit. In American
Farm Bur. Fed'n v. Environmental Protection Agency, 559 F.3d 512(D.C. Cir. 2009) (American Farm), the United States Court of
Appeals for the District of Columbia Circuit considered the
EPA's "decision to set the primary annual NAAQS for PM2.5 at 15
µg/m3" and held that "the EPA failed adequately to explain why
. . . its annual standard is sufficient 'to protect the public
health [with] an adequate margin of safety.'" Id. at 519-520,
20
quoting 42 U.S.C. § 7409(b)(1). Accordingly, the court remanded
the standard to the EPA for reconsideration or an adequate
explanation of the NAAQS. Id. at 528.
At the time of the board's final decision, the EPA was in
the process of reconsidering the NAAQS standard for PM2.5, in
light of the District of Columbia Circuit's decision in American
Farm. As the board recognized, during the rulemaking process
leading up to the adoption of this NAAQS standard, see 71 Fed.
Reg. 61,144, 61,144-61,146 (2006), the EPA staff and the Clean
Air Scientific Advisory Committee advocated an annual PM2.5 NAAQS
of between 12 and 14 µg/m3. 24 In its decision, the board
observed that the total estimated annual PM2.5 of 10.15 µg/m3 "is
far below the lowest of the possible limits (12 µg/m3) that were
being considered and recommended during [the EPA] rulemaking."
Accordingly, the board determined that "the facility meets the
NAAQS standard that is currently in place, as well as any
reasonably foreseeable revised standard that may be established
by [the] EPA on remand." We note that in January, 2013,
subsequent to the board's final decision, the EPA adopted an
annual NAAQS for PM2.5 of 12 µg/m3. See 40 C.F.R. § 50.18 (2013);
78 Fed. Reg. 3,086-01 (2013). We conclude, therefore, that the
24
The United States Court of Appeals for the District of
Colombia Circuit noted that 15 µg/m3 standard was higher than
that recommended by the EPA staff and the Clean Air Scientific
Advisory Committee. American Farm Bur. Fed'n v. Environmental
Protection Agency, 559 F.3d 512, 520-521 (D.C. Cir. 2009).
21
board did not abuse its discretion by considering the NAAQS for
PM2.5 in the course of its statutory review.
3. Logan Airport data. The meteorological data that
Brockton Power used for predicting emissions of criteria
pollutants under AERMOD, the atmospheric dispersion modeling
system approved by the EPA, were derived from a National Weather
Service (NWS) monitoring station at Logan Airport in Boston,
approximately twenty miles from the proposed site. The city and
the residents contend that this modeling did not accurately and
completely describe the facility's impact, because the Logan
Airport data were not representative of meteorological
conditions at the site in Brockton, which lacks the influence of
ocean breezes at Logan Airport; these interveners suggest that
Brockton Power should have used meteorological data from a
different source, or should have gathered data itself
specifically from the facility site.
In its decision, the board found that the data at the Logan
Airport site were adequate for the purposes of its review under
§ 69J¼, fifth par., because "given established wind patterns and
wind regimes experienced in general over eastern Massachusetts,
meteorological data for Logan Airport is representative of
conditions at the proposed Brockton site." In addition, the
board noted that the DEP, which ultimately would be responsible
for approving Brockton Power's air permit, raised no concerns
22
with respect to the company's air modeling in its comments on
the final environmental impact report under MEPA.
The record shows that no suitable meteorological data for
the Brockton site were available, and as none of the interveners
disputes, the data from the Taunton Municipal Airport NWS
monitoring station, a location closer to the Brockton site that
the city and the residents contend more closely approximates
meteorological conditions in Brockton, failed to meet the EPA
guidelines for air quality modeling data capture 25 in four out of
five years prior to Brockton Power's petition, making it
unsuitable for AERMOD dispersal analysis. In contrast, the
Logan Airport NWS monitoring site provided five years of off-
site data fully compliant with the EPA data capture guidelines.
Despite the inadequacy of the Taunton meteorological data,
at the city's request, Brockton Power modeled data from 2005
(the single year for which the Taunton data met the EPA
guidelines) for both the Taunton and Logan Airport sites. This
modeling exercise produced cumulative concentrations for several
criteria pollutants that were higher than when the Logan Airport
data were used. In no instance, however, did the Taunton data
result in expected cumulative concentrations exceeding the
25
See 40 C.F.R. Part 51, App. W § 8.3(a) (2005).
23
annual or twenty-four hour thresholds set by the EPA. 26 With
respect to annual PM2.5, for example, models from both sites
yielded nearly identical cumulative expected concentrations
below the NAAQS of 15 µg/m3 (the standard at the time of the
board's final decision) and 12 µg/m3 (the NAAQS subsequently
adopted by the EPA after American Farm).
The city concedes that the Taunton data were not adequate
for AERMOD analysis, but contends that the estimated differences
between ambient air pollutants at each site demonstrate that
"meteorological data may vary significantly from location to
location, even within eastern Massachusetts" and consequently
that modeling using Logan Airport data failed accurately and
completely to describe the facility's air emission impacts as
required by § 69J¼, fifth par. Instead, the city and the
residents suggest the board should have required Brockton Power
to provide site-specific data -- although it did not exist, as
the city and residents acknowledge. Nothing in the statute,
however, requires the board to use on-site meteorological data
in its review of a petition for accuracy, completeness, and
26
Moreover, the expected cumulative concentrations of
criteria pollutants using Taunton data were below the NAAQS
threshold.
The largest increase for criteria pollutants was for
twenty-four hour PM2.5, where the modeled facility contribution
of twenty-four hour PM2.5 is 1.47 µg/m3 using Taunton data, as
compared with 1.01 µg/m3 using Logan Airport data. The modeled
cumulative impact using Taunton data, however, was still below
the NAAQS threshold for twenty-four hour PM10.
24
minimization of environmental impacts. G. L. c. 164, § 69J¼,
fifth par. The five years of Logan Airport data, considered in
combination with the one year of supplemental Taunton data,
constituted substantial evidence on which the board could base
its analysis of air emissions under § 69J¼. Moreover, to the
extent the interveners argue that the board abdicated its
statutory duty by referencing the DEP's acceptance of Logan
Airport data in the course of the MEPA review, we disagree. The
board's role "with respect to air emissions is limited to a
review of the [petitioner's] description of the environmental
impacts of the proposed generating facility for substantial
accuracy and completeness, and a determination whether [the]
construction plans minimize the environmental impacts consistent
with the minimization of costs associated with the mitigation,
control, and reduction of the environmental impacts of the
proposed facility." Andover, 435 Mass. at 380. The board's
conclusion pursuant to § 69J¼, fifth par., that air emission
estimates using Logan Airport data were substantially accurate
and complete necessarily referenced the DEP (which uses EPA-
derived NAAQS thresholds), as the agency responsible for
evaluating Brockton Power's air dispersal modeling procedures
and compliance with the air regulations.
4. Town drinking water. The town challenges the board's
determination that the facility's impact on the town's drinking
25
water supply was "substantially accurate and complete" as
required by § 69J¼. The town's challenge fails.
The facility's cooling tower would require an average
annual volume of 1.6 million gallons per day (mgd) of water (or
1.9 mgd at peak, during a hot summer day), which Brockton Power
anticipated would be sourced from discharge from the city's
advanced water reclamation facility (AWRF). This would reduce
the volume of the annual average flow immediately downstream
from the AWRF, where the treated wastewater is discharged into
the Salisbury Plain River, from 40.0 mgd to 38.4 mgd, which is
still above the average annual naturally occurring flow of 20.5
mgd. The board noted that the availability of AWRF water for
use by the facility was uncertain at the time of its final
decision, and directed the company to submit a project change
filing to the board in the event that it modified the
anticipated source for the majority of the project's water
requirements. 27
The town obtains its drinking water supply from high
yielding wells in a Zone II aquifer encompassing a large portion
27
As indicated previously, subsequent to the board's
decision, Brockton Power was unable to secure an agreement with
the city to use AWRF water, and pursuant to the board's
directive, submitted a PCF to the board anticipating the use of
Brockton municipal water. The board denied the project change
filing based on the change of water source. We consider
Brockton Power's appeal from that decision in Brockton Power Co.
v. Energy Facilities Siting Bd., supra, also decided today. See
note 4, supra.
26
of northeastern West Bridgewater and a small area of
southeastern Brockton, totaling more than 740 acres. 28 The
town's current permit issued pursuant to the Massachusetts Water
Management Act, G. L. c. 21G, authorizes up to 1.53 mgd of
withdrawal from wells in the Zone II aquifer, although actual
use is between 0.60 to 0.77 mgd. Under extremely conservative
assumptions (low-flow conditions in the river and peak
operations at the facility), the estimated effect on river flow,
below the AWRF, would be fifteen per cent at most, or sufficient
to maintain a flow of 10.9 mgd. 29 Based on these estimates, the
board concluded that recharge to the town's wells would not be
adversely affected by the facility's withdrawals.
The town raises three primary objections to the board's
analysis of the facility's impact on the aquifer. The first
focuses on the timing of the testimony addressing the facility's
water use. The town argues that because the expert testimony
and the analysis regarding the aquifer were introduced in the
course of the hearings before the board, rather than in the
28
The DEP regulations define "Zone II" as "that area of an
aquifer that contributes water to a well under the most severe
pumping and recharge conditions that can be realistically
anticipated (180 days of pumping at approved yield, with no
recharge from precipitation)." 310 Code Mass. Regs. § 22.02
(2009).
29
These assumptions include: full permitted use of aquifer
withdrawal from wells (1.5 mgd), forty per cent of recharged
water from the Salisbury Plain River; peak project water use
(10.9 mgd); and extreme low-flow conditions continuing for
twelve weeks rather than one.
27
actual petition that Brockton Power submitted at the start of
the review process, the description of environmental impacts in
the petition was not "substantially accurate and complete," as
required by § 69J¼, fifth par. However, the language and
structure of the statute make clear that the term "petition"
refers to a project proponent's over-all submissions to the
board, including evidentiary hearings in the course of the
board's petition review process, and is not limited to the
initial petition commencing the board's review. See Andover,
435 Mass. at 386 (changes in estimates of air impacts during
proceeding did not violate requirement that petitioner's
description of proposed project and environmental impacts be
"substantially accurate and complete"). Our review of the
record here persuades us that the board properly considered all
substantial evidence submitted in the course of its review,
including Brockton Power's submissions and expert testimony
addressing the facility's impact on the Zone II aquifer.
The town's second contention -- that the board neglected to
make required subsidiary findings -- also fails. 30 The board's
decision contained a "statement of reasons . . . including
30
The town complains that the board "failed to make the
necessary subsidiary findings [1] as to the issues concerning
the impacts of the proposed project upon the slope of the
aquifer, the aquifer's saturated thickness, and the expansion of
the wells laterally within it; and [2] as to [Brockton Power's]
use of outmoded, [eighteen to twenty-two] year old assumptions,
information and modeling."
28
determination of each issue of fact or law necessary to the
decision," which is an adequate "'guide to its reasons' so that
[a] court may 'exercise . . . [its] function of appellate
review'" as required by G. L. c. 30A, § 11. Massachusetts Inst.
of Tech. v. Department of Pub. Utils., 425 Mass. 856, 868 (1977)
(citations omitted). Our review of the extensive record before
the board assures us that substantial evidence supported the
board's conclusion that the facility would allow water flows in
the Salisbury Plain River in excess of the volume necessary to
ensure recharge of the aquifer. 31 The absent subsidiary findings
claimed by the town are either unnecessary or implicit in the
board's decision. 32
Finally, the town's arguments regarding the reliability and
admissibility of testimony by Brockton Power's expert witness --
evidence the town contends was based on hydrology reports that
are hearsay and otherwise unreliable -- lack merit. The board
has broad discretion to weigh and assess the credibility of
31
In this regard, the board based its conclusion on a
number of conservative assumptions regarding both wastewater
volume and river flows that the town has not rebutted.
32
For example, the town contends that the board's
determination was unsupported because, in its decision, the
board referred to the impact of the facility's water withdrawals
on the town's wells and water supply, and did not address
expressly the impact on the "aquifer." However, a fair reading
of the decision and the record makes clear that the board
properly analyzed the project's impact on the Zone II aquifer
for accuracy and completeness and to ensure that environmental
impacts were minimized, as required by § 69J¼.
29
evidence, including hearsay evidence. See, e.g., Box Pond Ass'n
v. Energy Facilities Siting Bd., 435 Mass. 408, 418 (2001) (Box
Pond). Here, the expert's testimony and submissions referenced
hydrology reports examining the Zone II aquifer in the context
of conservative estimates of the wastewater recharge on the
aquifer. The board had an opportunity to consider the
methodology and accuracy of the reports in the course of the
hearings. We conclude that Brockton Power's submissions,
including the evidence presented by its expert, were
substantially accurate and complete, and that the town has not
met its burden of showing that the board abused its discretion
in crediting the company's evidence. See Alliance to Protect
Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass.
663, 690 (2010) (Alliance II); Box Pond, supra.
5. Traffic impacts. We address briefly the city's
contention that the board lacked statutory authority to
establish traffic routes for deliveries of ULSD and aqueous
ammonia as a condition of its approval of the petition. The
board's final decision directed Brockton Power to require that
its ULSD and aqueous ammonia vendors use one of two State
highways (Routes 27 and 123) through the city, effectively
precluding deliveries using Route 106, which runs through the
30
town, unless the vendor is located in the town. 33 The board
concluded that, consistent with the company's petition and
traffic analysis, limiting deliveries to these routes would
minimize the traffic impacts of the facility.
Section 69J¼, fourth par., requires the board to review a
range of environmental impacts including "local and regional
land use impact, local and regional cumulative health impact
. . . , and noise impact of the proposed generating facility" as
a part of its statutory review. The board has consistently
interpreted this mandate to include the environmental impacts of
traffic, and "[w]e accord substantial discretion to an agency to
interpret the statute it is charged with enforcing." Alliance
II, 457 Mass. at 681. See, e.g., City Council of Agawam v.
Energy Facilities Siting Bd., 437 Mass. 821, 830-831 (2002);
Andover, 435 Mass. at 391. Here, the effect of deliveries to
the facility comes under the board's jurisdiction as a "local
and regional land use impact." G. L. c. 164, § 69J¼, fourth
par. Considering that traffic from construction and regular
deliveries presents potentially significant environmental
impacts, the board's interpretation of the statute is entirely
reasonable. See, e.g., Alliance to Protect Nantucket Sound,
33
The company predicted that aqueous ammonia deliveries
would occur two to three times per month. At most, during the
coldest days of winter, ULSD deliveries would occur twice per
hour. The board noted that the company would minimize the
impact of deliveries by scheduling deliveries during the period
of lowest traffic.
31
Inc. v. Energy Facilities Siting Bd., 461 Mass. 166, 187 (2011)
("agency's powers are shaped by its organic statute taken as a
whole . . . [and] include those necessarily or reasonably
implied" [citations omitted]). 34
6. Conclusion. Because the board's procedures and
conclusions were proper in all respects, and supported by
substantial evidence, we affirm the board's decision approving,
with conditions, Brockton Power's petition.
So ordered.
34
The board's conclusion that the designated routes will
minimize these impacts is supported by substantial evidence.
G. L. c. 164, § 69P. The town's expert testified that it would
be difficult for trucks carrying ULSD to make a left-hand turn
from Route 106 to Route 18, as required to approach the facility
from the town.