435 Mass. 408 | Mass. | 2001
IDC Bellingham, LLC (IDC), filed a petition pursuant to G. L. c. 164, § 69JV4, with the Energy Facilities Siting Board (board) to construct and operate a net nominal 700-megawatt natural gas-fired, combined-cycle, electric generating facility on a 156-acre site in Bellingham.
1. Statutory and regulatory background. The board’s review of electric generating facilities is governed by G. L. c. 164,
The board’s review of generating facilities is an adjudicatory proceeding “under the provisions of chapter 30A,” the Massachusetts Administrative Procedure Act, see G. L. c. 164, § 69P/4, and the board has adopted rules for the conduct of these proceedings. 980 Code Mass. Regs. §§ 1.00 et seq. (1993). Pursuant to these rules, the hearing officer is authorized to hold hearings on petitions filed under G. L. c. 164, § 69JV4, and is delegated broad authority in governing such proceedings. The hearing officer may issue subpoenas, administer oaths, and in general determine the course and conduct of the hearings. 980 Code Mass. Regs. § 1.04. Other than in circumstances not relevant here, the hearing officer proposes a tentative decision for the board’s consideration. 980 Code Mass. Regs. § 1.06(3). The board renders a final decision “after considering the tentative decision and all timely-filed comments and supporting arguments.” 980 Code Mass. Regs. § 1.06(5).
2. Procedural background. IDC filed its petition with the board on November 18, 1997. A public hearing was held in Bellingham on March 11, 1998. Numerous individuals and entities were permitted to intervene in the proceedings, including the petitioners in the present appeal. See G. L. c. 30A, § 10; 980 Code Mass. Regs. § 1.05(2) and (3).
Thirteen days of evidentiary hearings were conducted between April 14 and May 26, 1999.
After the final decision was issued, IDC submitted a compliance filing to the board indicating that, in place of two Siemens Westinghouse turbines, it intended to use two General Electric turbines. The main reason for the turbine change was IDC’s inability to purchase the Siemens Westinghouse turbines with manufacturer guarantees that the turbines would meet the proposed facility’s emissions limits. IDC also stated that in addition to changing to General Electric turbines, it would reconfigure the proposed electric generating facility so that the net nominal electrical output of the facility would be reduced from 700 megawatts to 525 megawatts.
The hearing officer issued a ruling on March 31, 2000, defining the scope of the compliance proceeding and establishing a procedural schedule. After four days of evidentiary hearings, the board issued a final decision on September 12, 2000, again approving IDC’s petition subject to specific conditions. The interveners appealed from the compliance decision pursuant to G. L. c. 25, § 5, as permitted by G. L. c. 164, § 69P. IDC’s motions to intervene in both appeals were allowed by the single justice who consolidated the cases and reserved and reported the appeals to the full court.
On appeal, the interveners argue that (1) the hearing officer abused her discretion by refusing to grant intervener Eckert’s request for a six-week extension to retain a noise expert, when allied intervener Mention withdrew its noise expert, Michael D. Theriault (Theriault), two business days before he was scheduled to testify on the noise impact of the power plant; (2) the hearing officer violated the board’s regulations and abused her discretion by revoking a subpoena compelling Theriault to testify at the hearing; (3) the board erred by giving Theriault’s testimony “only limited weight” and considering it only “for the sake of completeness”; (4) the board erred in the compliance decision in refusing to consider the testimony of Gregory C. Tocci (a
3. Standard of review. Any party aggrieved by a decision of the board may seek judicial review in the Supreme Judicial Court. G. L. c. 164, § 69P. G. L. c. 25, § 5. “Our review of petitions under G. L. c. 25, § 5, is limited, although not perfunctory.” Stow Mun. Elec. Dep’t v. Department of Pub. Utils., 426 Mass. 341, 344 (1997), quoting Wolf v. Department of Pub. Utils., 407 Mass. 363, 367 (1990). We shall uphold the board’s decision unless it is demonstrated that “it is based on an error of law, unsupported by substantial evidence, arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.” Stow Mun. Elec. Dep’t v. Department of Pub. Utils., supra, citing Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867-868 (1997). The plaintiffs have “the burden of proving such error. This burden is a heavy one. We give great deference to the [board’s] expertise and experience in areas where the Legislature has delegated to it decision making authority . . . .” Wolf v. Department of Pub. Utils., supra, quoting Costello v. Department of Pub. Utils., 391 Mass. 527, 533 (1984).
4. Rulings concerning Mendon’s noise expert. The board is required to evaluate the noise impact from proposed generating facilities to determine whether the plans for the facility “minimize the environmental impacts consistent with the minimization of costs.” G. L. c. 164, § 69JV4. The board reviews the noise impacts of a proposed facility for general consistency with applicable government regulations, including the Department of Environmental Protection Policy 90-001 (Jan. 16, 1990), which limits increases from new noise sources to ten decibels (dBA). Moreover, the board considers the significance of expected noise increases which, although lower than ten dBA, may adversely affect existing residences or other sensitive receptors.
Mendon retained an expert in acoustics, Theriault, who conducted an ambient sound level survey at two residential
a. Six-week extension request. When Mention withdrew, Eck-ert filed a request for a six-week extension to retain a noise expert to provide the type of measurements and analyses previously furnished by Theriault. The request was denied. The interveners claim that the hearing officer’s denial of the request for an extension was arbitrary and capricious, and failed to take into account relevant facts.
The decision whether to grant a motion to continue lies within the sound discretion of the hearing officer or the board. 980 Code Mass. Regs. § 1.02(6). See Foote v. Process Equip. Co., 353 Mass. 755 (1967). Cf. Commonwealth v. Super, 431 Mass. 492, 496-497 (2000). The refusal to grant a continuance will not constitute error absent an abuse of that discretion. Elbar Realty, Inc. v. Shapiro, 342 Mass. 276, 278, appeal dismissed, 368 U.S. 802 (1961), and cases cited.
The interveners contend that Eckert was misled by the hearing officer into relying on Mention’s noise expert because the hearing officer had urged the parties not to duplicate efforts. The record does not support this contention. The hearing officer, in denying the six-week extension, stated: “To promote administrative efficiency, parties were encouraged in this proceeding not to duplicate discovery. However, at no point in time were par
The interveners further claim that the hearing officer’s denial of the extension request was arbitrary and capricious because she had granted IDC’s extensions that delayed the case for several months and then denied Eckert a six-week extension that would not have delayed the case. Although the hearing officer did grant IDC several extensions that delayed the original procedural schedule, these extensions were necessitated by IDC’s filing of significant project changes. These project changes reduced the environmental impacts of the facility, and continuances were granted so that IDC could provide all available information about the changes before the case proceeded. To do otherwise would have been a waste of all parties’ resources given the significance of the changes. (The hearing officer treated the parties evenhandedly and granted the interven-ers an extension of five weeks to submit their prefiled testimony following IDC’s submission of its updated discovery responses.)
Given the lack of record support for the requested delay and the time requirement of G. L. c. 164, § 69F/4, the hearing officer acted within her discretion in denying Eckert the extension. Unlike the delays afforded IDC, there was no showing that Eck-ert’s delay “would measurably contribute to the resolution of the case.” Commonwealth v. Miles, 420 Mass. 67, 85 (1995).
b. Quashing of Theriault’s subpoena. The interveners next argue that the hearing officer erred in quashing a subpoena that had been issued to Theriault. The board claims that the interven-ers cannot raise this argument as the subpoena in question was issued at the request of one Kathleen Johnson,
The hearing officer revoked Theriault’s subpoena in accordance with the subpoena procedures of G. L. c. 30A, § 12, and 980 Code Mass. Regs. § 1.05, which do not require a formal opposition period. An agency’s interpretation of its own regulation and statutory mandate will be disturbed only “if the ‘interpretation is patently wrong, unreasonable, arbitrary, whimsical, or capricious.’ ” TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 17 (2000), quoting Brookline v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 398 Mass. 404, 414 (1986). See Boston Police Superior Officers Fed’n v. Boston, 414 Mass. 458, 462 (1993). “This is particularly so with respect to internal agency matters such as the issuance of subpoenas directed at the gathering of evidence for an agency proceeding . . . .” Id.
The authority to issue subpoenas derives from G. L. c. 30A. Section 12 authorizes agencies to issue subpoenas in adjudicatory proceedings, id. at 463, and, pursuant to § 12 (4), an agency may vacate a subpoena “[ajfter such investigation as the agency considers appropriate,” without a formal opposition period or other hallmark of motion practice. The board’s regulation governing subpoenas follows the statutory standard. See 980 Code Mass. Regs. § 1.05(l)(b). The hearing officer properly applied the procedures governing subpoenas as opposed to the more general motion practice provisions.
Moreover, the interveners’ substantial rights were not prejudiced by the claimed procedural missteps in quashing The-riault’s subpoena because Johnson was fully heard on the merits of quashing Theriault’s subpoena. Cf. Martorano v. Department of Pub. Utils., 401 Mass. 257, 262-263 (1987) (“[tjhere must be some showing of prejudice before an agency’s disregard of its rules may constitute reversible error”). After the hearing officer
In regard to the substance of the ruling, the subpoena issue is in large part a variation of the six-week extension issue. Once the extension had been denied (and we have determined that such a ruling was not an abuse of discretion), the hearings ended on May 26, 1999. The issuance of the subpoena would, in effect, have prolonged the hearings and been in effect the equivalent of granting the extension request. Although the hearing officer ruled that to subpoena Theriault at this juncture would render meaningless the deadline she had ordered for pre-filed testimony, it appears that she had concluded that it would disrupt the entire schedule of the proceedings. As the hearing officer concluded, “Parties have been given a full and fair opportunity to present [their] cases within the parameters established by the procedural schedule. That being the case, there is no compelling reason to allow the testimony of Mr. Theriault at this time in the proceeding.”
Apart from the above reasoning, there were other adequate grounds for quashing the subpoena. See Hawthorne’s, Inc. v. Warrenton Realty, Inc., 414 Mass. 200, 210 n.6 (1993) (we may affirm a judgment on reasons not specifically relied on by the judge). The general rule is that an expert witness, such as Theriault, who has not been retained by the party seeking his testimony, cannot be required to give an opinion already formed unless “necessary for the purposes of justice.” Ramacorti v. Boston Redevelopment Auth., 341 Mass. 377, 379 (1960), quoting Barrus v. Phaneuf, 166 Mass. 123, 124 (1896). While there may be exceptions, there has been no showing on this record of any exceptional circumstances for relaxing the general rule. To the extent that there were any unusual circumstances, i.e., the withdrawal of Mention, the problems for Eckert were self-created. She had relied unreasonably on her belief in a commitment by the hearing officer that is not supported by the record.
c. The board’s consideration of Theriault’s testimony. The interveners’ final argument regarding Theriault’s testimony is that the board erred by giving Theriault’s prefiled testimony “only limited weight” and considering it only “for the sake of completeness” when rendering its final decision. The interveners contend that, although Theriault’s testimony constitutes hearsay, it warranted full consideration because hearsay is admissible in administrative proceedings. See School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 423 Mass. 7, 15 (1996), citing Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm’n, 401 Mass. 526, 530 (1988). The interveners do not challenge the substantive determinations made by the board on Theriault’s testimony, but only the fact that the board’s decision did not address all of its aspects.
Despite the interveners’ representations to the contrary, the board ultimately considered and reviewed Theriault’s prefiled testimony. Although his testimony was unsworn and not subject to cross-examination, “for the sake of completeness and to respond to issues raised by interveners,” the board reviewed his evidence. Because Theriault’s testimony was never adopted by him under oath and he was not subject to cross-examination, the board need not have considered it at all. See Planning Bd. of Braintree v. Department of Pub. Utils., 420 Mass. 22, 30 (1995). To the extent the board considered the testimony, the interveners received an unwarranted benefit. The fact that the board did not refer to all aspects of Theriault’s testimony in its final decision does not indicate that it failed to consider such aspects. An agency need not refer to all evidence in its decision. See Catlin v. Board of Registration of Architects, 414 Mass. 1, 6 (1992).
5. Refusal to consider interveners’ expert in the compliance proceeding. The final decision provided that, “if [IDC’s] choice of turbine changes, the [board] will determine, based on the
The interveners contend that the board erred in excluding the testimony of Gregory C. Tocci of Cavanaugh Tocci Associates, Inc., an expert offered by the interveners to demonstrate ambient noise levels at a specific site in Bellingham. In its compliance decision, the board explained that it refused to consider Tocci’s testimony because it was unrelated to IDC’s change in turbine and was merely “an attempt to relitigate issues decided in the underlying proceeding.” The board acted within its authority.
The board had already decided the proper measure and level of ambient noise in its final decision. Although the interveners argue that the board never determined the proper background ambient noise measurements and left these determinations for the future, this contention is unsupported by the record. In its final decision, the board limited noise increases at the closest residence to the proposed site to five dBA. In doing so, the board implicitly accepted the ambient noise measurements presented by IDC’s expert rather than those offered by Theriault. As this court stated in Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 135 (1998), quoting Stowe v. Bologna, 415 Mass. 20, 22 (1993), “[a] final order of an administrative agency in an adjudicatory proceeding . . . precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction.”
The board had determined in its final decision that the original
The interveners contend also that, in declining to consider Tocci’s testimony, the board failed to meet its statutory mandate requiring that plans for a proposed facility “minimize the environmental impacts consistent with the minimization of costs.” G. L. c. 164 § 64J1/4. The compliance decision, however, demonstrates a proper application of this standard. When a decision of an agency is based on the application of the proper standard, this court will not overturn that decision unless it is unsupported by “substantial evidence.” Stow Mun. Elec. Dep’t v. Department of Pub. Utils., 426 Mass. 341, 344 (1997). The board adequately determined the proper measure of ambient noise in its final decision. We defer to the board’s expertise and specialized knowledge in this area, as it was supported by substantial evidence. See id.
The interveners argue further that, even if Tocci’s testimony were beyond the scope of the compliance proceeding, the board should have reconsidered its final decision on the proper measure of ambient noise and accepted Tocci’s testimony as a part of this reconsideration. Although the interveners sought reconsideration, they in fact were attempting to reopen the record to present additional evidence. An agency may reopen a hearing, see 980 Code Mass. Regs. § 1.05(12), but we accord agencies broad discretion in deciding whether to do so, and an agency’s refusal to reopen is not disturbed absent an abuse of that discretion. See Zachs v. Department of Pub. Utils., 406 Mass. 217, 227 (1989).
The interveners contend that reopening was appropriate
6. Denial of interveners’ motion to reopen the proceeding. The tentative decision issued by the hearing officer on November 22, 1999, proposed that the full board find that a new ammonia-free air pollution technology called SCONOx is not commercially available or feasible for IDC’s facility. On December 6, 1999, the interveners filed a motion to reopen the proceedings and allow them to present “previously unknown” information on the SCONOx technology. This “new evidence” consisted of a two-page press release issued by ABB Alstom Power stating that it would guarantee and sell the SCONOx technology. The hearing officer declined to reopen the proceedings on the basis of this press release. As stated above, we do not reverse an agency’s decision denying the reopening of a hearing unless there was an abuse of discretion or other error of
The hearing officer rejected the interveners’ motion to reopen because she found that the information provided in the press release did not bolster the interveners’ assertions.
The interveners also argue that the hearing officer applied the wrong standard. They claim that she erroneously declined to reopen the record because the press release could not support a finding that SCONOx technology is “BACT” or “LAER,”
Pursuant to the board’s regulations, the hearing officer has the authority “to regulate the course of hearings ... to hear and rule upon motions ... to rule upon offers of proof and to receive relevant, material, and probative evidence.” 980 Code Mass. Regs. § 1.04(l)(b). The hearing officer, acting within the authority granted by this regulation, concluded that the press release was irrelevant.
7. Conclusion. Because we find it proper in all respects, we affirm the board’s decision. ludgment shall enter in the county court affirming the decision of the board.
So ordered.
In its original petition, IDC stated that the proposed facility would generate 1,035 megawatts and would use oil as a backup fuel. By a letter dated October 28, 1998, IDC informed the Energy Facilities Siting Board (board) that the output of the proposed facility was being reduced to 700 megawatts and that it had eliminated oil as a backup fuel.
Because at least one intervener has standing to pursue this appeal, we need not address the standing of any other intervener.
The tentative and final decision both state that “the board” conducted the evidentiary hearings. As the transcript of said hearings indicates, however, these evidentiary hearings were held before the hearing officer who obviously uses the term “the board” in the tentative decision to refer to findings and rulings she has made on behalf of the board. See the tentative and final compliance decisions, infra at 411-412.
The hearing officer may, as in this case, set a schedule requiring that the testimony of all witnesses in a proceeding be submitted in advance of the evidentiary hearings. 980 Code Mass. Regs. § 1.05(10) (1993). This written prefiled testimony is admissible when the witness adopts it under oath on the record at the hearing and the witness is available for cross-examination. See Planning Bd. of Braintree v. Department of Pub. Utils., 420 Mass. 22, 30-31 (1995).
This language is directory and not mandatory. See Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 157-158 (1976).
The hearing officer did in fact permit Theriault’s prefiled testimony to remain in the evidentiary record, and the board considered his testimony to some extent. See Part 4(c), infra.
The board refers to the subpoena to Theriault as having been requested by “the Johnsons.” Other documents in the record indicate that the subpoena was requested only by Kathleen Johnson.
The hearing officer originally issued the subpoena to Theriault because she believed that G. L. c. 30A gave her no discretion to deny it. But she interpreted the statute as permitting her to vacate a subpoena if a witness who had been summonsed so petitioned her.
Although agencies such as the board need not observe the rules of evidence, for evidence to be admitted and given probative effect it must be “the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.” Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm’n, 401 Mass. 526, 529 n.5 (1988), quoting G. L. c. 30A, § H (2).
Although the interveners filed a motion “to reopen” the record, they cited the standard for reconsideration. The hearing officer acknowledged this error but, nevertheless, addressed the motion on its merits pursuant to the regulation for reopening hearings. See 980 Code Mass. Regs. § 1.05(12).
“BACT” and “LAER” are terms defined by the Federal Clean Air Act. See 42 U.S.C. §§ 7479(3), 7501(3) (1994). “BACT” stands for “best available control technology” and “LAER” stands for “lowest achievable emission rate.” Id. The Clean Air Act is administered by the Department of Environmental Protection. See 310 Code Mass. Regs. § 7.00 (2001).
The hearing officer only commented on the issue whether SCONOx was BACT and LAER because the interveners specifically requested in their motion to reopen the proceedings that the hearing officer find that SCONOx is BACT and LAER. The interveners cannot now complain that the hearing officer erred in commenting on whether SCONOx was BACT and LAER because they invited this error. “One who by his conduct induces the commission of some error by the trial court, or, in other words, who has invited error, is estopped from insisting that the action of the court is erroneous.” Deland v. Old Republic Life Ins. Co., 758 F.2d 1331, 1336 (9th Cir. 1985), quoting Noble v. Miles, 129 Cal. App. 724, 727 (1933). See Nevins v. Tinker, 384 Mass. 702, 705-706 (1981); Fairfield v. Lowry, 207 Mass. 352, 358 (1911).
The interveners cite Vinal v. Contributory Retirement Appeal Bd., 13 Mass. App. Ct. 85 (1982), for the proposition that “an agency must have access to all relevant, material and probative evidence — even if the hearing officer discounted such evidence in arriving at the tentative decision.” Yet the Vinal case does not require that the board review testimony the hearing officer has excluded.