13 N.E.3d 955
Mass.2014Background
- Board approved Brockton Power's 350-MW facility in Brockton in 2009 under G. L. c. 164, §69J¼, including use of AWRF wastewater for cooling.
- Brockton Power filed a project change filing in 2010 seeking a BMWS water source, elimination of ULSD, and design changes; board denied the water-source change but approved the other two changes.
- Consolidated appeals were filed by Brockton Power and the City; a single justice reserved and reported to the full court; the court affirms the board’s PCF decision.
- The PCF was treated as a continuation of the original proceeding under §69J¼, sixth par., with the board having discretion on whether to consider changes within the original proceeding.
- The board balanced environmental impacts and water management constraints with DEP authority, and concluded environmental impacts of the BMWS water use were not minimized; ULSD elimination and design changes were found to minimize impacts; zoning issues were deemed outside the PCF's scope.
- The court affirms the board’s PCF decision in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCF is an amended petition under §69J¼. | Brockton Power argues the filing is an amended petition. | Board treated PCF as continuation of original proceeding, within its discretion. | Yes; board acted within statutory discretion. |
| Whether board properly analyzed environmental impacts of BMWS water use under §69J¼. | Power contends DEP authority was misapplied. | Board coordinated with DEP; not required to defer entirely to DEP; substantial evidence supports board. | Board's analysis supported by substantial evidence. |
| Whether elimination of ULSD and design changes minimize environmental impacts. | Power shows reductions in emissions. | Board properly evaluated changes and emission impacts, including CO and PM standards. | Yes; changes minimize environmental impacts per §69J¼. |
| Whether board could approve changes without conforming to local zoning. | City argues zoning compliance is prerequisite. | Zoning compliance outside §69J¼ scope. | Zoning outside scope; PCF decisions affirmed. |
Key Cases Cited
- Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45 (Mass. 2006) (board deference; substantial evidence standard; agency discretion in procedure)
- Box Pond Ass'n v. Energy Facilities Siting Bd., 435 Mass. 408 (Mass. 2001) (deference to agency procedural rulings; relitigation limits)
- Andover v. Energy Facilities Siting Bd., 435 Mass. 377 (Mass. 2001) (complementary roles of board and DEP; coordination on environmental issues)
- Zachs v. Department of Pub. Utils., 406 Mass. 217 (Mass. 1989) (broad deference to agency conclusions on procedural matters)
- Box Pond Ass'n v. Energy Facilities Siting Bd. (No. 2), 461 Mass. 190 (Mass. 2011) (guidance on governing scope of review in subsequent proceedings)