435 Mass. 377 | Mass. | 2001
The Energy Facilities Siting Board (board) approved the petition of Nickel Hill Energy, LLC, to construct and operate a 750-megawatt natural gas-fired, combined cycle electrical generating facility on a twenty-five acre site in the town of Dracut. The town of Andover and Merrimack Valley Residents for the Environment, Inc., interveners in the administrative proceedings below,
On appeal the interveners argue that (1) the board’s decision improperly relies on future actions by other agencies and thus is not a final agency decision; (2) the board’s decision and subsidiary findings are not supported by substantial evidence; (3) the board improperly limited its review of the site selection process to whether Nickel Hill’s description of the process was accurate; (4) the board violated the interveners’ procedural rights; and (5) Nickel Hill lacked standing to pursue its petition because it did not have a property interest in the selected site. We affirm the decision of the board.
1. Scope of review. Our review of the board’s decision is governed by the provisions of G. L. c. 25, § 5, and G. L. c. 164, § 69P. Section 69P states that “[t]he scope of such judicial review shall be limited to whether the decision of the board is
2. The finality of the board’s decision. The interveners argue that the board’s decision should be vacated because it is not sufficiently final. They contend that the board failed to make findings regarding certain environmental impacts, and that the board improperly relied on future actions by the Department of Environmental Protection (department) and other contingencies in lieu of making these findings. The interveners rely on Point of Pines Beach Ass’n v. Energy Facilities Siting Bd., 419 Mass. 281 (1995), for the proposition that only a final decision may be upheld. There we vacated a decision where the board had concluded that it was “unable to determine that the proposed project is needed to provide a necessary energy supply for the Commonwealth,” an ultimate finding required by G. L. c. 164, § 69J, for nongenerating facilities. Id. at 285-286. The board, unlike in the Point of Pines Beach Ass’n case, did not fail to make ultimate findings. Its decision was final.
General Laws c. 164, § 69JV4, which governs petitions for construction of generating facilities,
(a) Delegation of responsibility. The interveners claim that the board improperly delegated its responsibility under § 69JV4 to the department when it said that “[fjinal, binding, emissions limits for the proposed facility will not be established until [the department] issues its final air plan approval.” Far from constituting a delegation, the statement is an accurate observation of the different roles of the board and the department in the over-all permit process. The board concluded that the department “may not [issue its final air plan approval] until after the [board] issues its final approval” (emphasis added). 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 first has been approved by the board. See G. L. c. 164, § 69F/4, first par.
As to the specific contention of the interveners, the role of the board in this case with respect to air emissions is limited to a review of Nickel Hill’s description of the environmental impacts of the proposed generating facility for substantial accuracy and completeness, and a determination whether Nickel Hill’s 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. See G. L. c. 164, § 69JV4, fifth par. Nickel Hill’s descriptive accuracy of the environmental impacts of its proposed generating facility and its plans to minimize those impacts consistent with the cost of mitigation may satisfy
The board neither delegated nor abdicated its responsibility to establish “final, binding emissions limits for the proposed facility” because it never had that authority. Regulation of the actual emissions of the proposed facility is a matter within the jurisdiction of the department, not the board, and it will be determined on Nickel Hill’s petition for a major comprehensive air plan, without which the facility may not operate. See 310 Code Mass. Regs. § 4.10 Appendix at (2) (c) (BWPAQ03) (2001); 310 Code Mass. Regs. § 7.02 (2) (a). The board also correctly stated, referring to “SCONOx technology” (see discussion, infra at 383), that because the department’s “primacy of jurisdiction and ... its greater expertise in emissions control technologies, [it] is the agency best suited to determine whether and when to introduce new emissions control technologies into the Commonwealth.” In point of fact, it is the State agency to make that determination. See G. L. c. Ill, § 142D; 310 Code Mass. Regs. §§ 7.00, 7.02 & Appendix A.
Section 69JV4 anticipates the role of the department in the broader process, one which is by no means subservient to, or duplicative of, the role of the board. Illustrative is the requirement in § 69P/4 that the board establish a technology performance standard (TPS) for pollutants reflecting the best available control technology (BACT) or the lowest achievable emissions rate (LAER) for each pollutant, as applicable for each year. The TPS “shall reflect emission rates that are achievable by state of the art fossil fuel generating and control technologies, as demonstrated by air permits for construction that have been issued by the [department]. The promulgation or application of this standard shall not in any way supersede or impair the authority of the [department] with respect to these or other facilities’'’ (emphasis added). G. L. c. 164, § 69JV4, second par. The legislative scheme contemplates that much of what the board does in the area of air pollution will be dependent on
The fact that the department has the “final” decision governing the specific emissions limits for regulated pollutants, the precise technology that will be used to achieve those limits, and the allowable offset plans, and thereby ultimately will determine whether the proposed generating facility can start its turbines and keep them running, does not mean that the findings made by the board are not final for purposes of review under G. L. c. 164, §" 69R The board made the ultimate findings required by § 69J 1A and thus has appropriately performed the role carved out for it by the Legislature. The board’s requirement that Nickel Hill return for further hearings if the department’s findings are substantially different from its own can hardly be viewed as an abdication. It is an acknowledgment that its decision may need to be modified to reflect more stringent requirements determined by the department, and thus it is sensible administrative coordination with the agency ultimately responsible for regulating the actual and specific air emissions from the proposed generating facility, and with other agencies that may rely on the board’s decision regarding the descriptive accuracy of Nickel Hill’s plans.
(b) Turbines. The interveners contend that the board failed to make a finding about the turbines to be used or their emission rates. Nickel Hill’s description of the proposed facility, required under § 69P/4, third par., stated that two Siemens-Westinghouse or Mitsubishi Heavy Industries “G” technology combined-cycle combustion turbines with steam injection capability and two 170-foot stacks, two heat recovery steam generators, one steam turbine generator, and a wet mechanical cooling system would be used, together with a selective catalytic reduction (SCR) system for nitrogen oxides (NOx) control and an oxidation catalyst for carbon monoxide control (CO). The proposed facility would burn only natural gas. The board’s finding that the facility would make use of “G” technology combined-cycle combustion turbines with steam injection capability sufficiently identifies the turbines. Because there is no significant difference
There is no requirement that the board make findings as to emissions rates of turbines.
(c) Emissions control technology. There is no merit to the claim that the board failed to make findings concerning the emissions control technology to be installed. The interveners fault the board for failing to require Nickel Hill to evaluate zero-ammonia SCONOx technology. Evidence was presented both by Nickel Hill and by the interveners on the subject of SCONOx technology. That evidence indicated that although SCONOx technology had achieved the lowest achievable emission rate (LAER) for NOx, its use had not been demonstrated to
(d) Noise. The interveners next contend that the board failed to make any findings about noise pollution control measures, in particular, the noise control technology that Nickel Hill intends to install on site. Nickel Hill proposed several noise mitigation measures that the board found would minimize the noise impacts of the proposed facility, consistent with minimization of the cost of mitigation, as required by § 69JV4. Those measures include: enclosure of the combustion turbines, the steam turbines, and the heat recovery steam generators; use of mufflers for air inlets and exhaust on the combustion turbines; noise controls to limit cooling tower noise to forty-eight decibels (dBA) at a distance of 400 feet; acoustic louvers on ventilation air inlets on the north, east, and south sides; mufflers on roof exhaust fans; enclosure or wrapping of pressure reduction valves and exposed pipes associated with gas metering equipment;
(e) Health. The interveners claim that the board failed to make findings concerning the health impacts of the proposed generating facility, noting that the Department of Public Health had requested Nickel Hill to conduct additional modeling to address public health concerns about pediatric asthma. The request of the Department of Public Health for additional modeling came during the course of, but outside the scope of, the environmental review process under G. L. c. 30, §§ 61-62H, the Environmental Protection Act. See Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 136-139 (2000). The hearing officer ruled that the evidence expected from the additional modeling was beyond the scope of the hearing before the board, and noted that it would not even be available until years after the time the board must issue its decision under § 69JV4. The interveners have not argued that the ruling was incorrect. The issue is deemed waived. Nevertheless, the request to conduct additional modeling did not diminish the finality of the board’s findings.
It bears mentioning that the board devoted twenty-four pages of its 149-page decision to the cumulative health impacts of the proposed generating facility, including the issue of pediatric asthma. The board found that the cumulative impacts from expected criteria pollutant emissions under national ambient air quality standards
(f) Total emissions. Last, the interveners claim that the board failed to make ultimate findings about total emissions from the facility. They contend that Nickel Hill admitted that its data were negotiable and that it did not provide “firm” data about the facility’s emissions. One witness for Nickel Hill explained that its original estimates were preliminary and that further information would be provided as the review process progressed and as negotiations progressed with the manufacturers of the relatively new “G-class” technology. The board expressly accepted this explanation, noting that “changes in emissions estimates are not unexpected during the early stages of the permitting process, as a developer works with its equipment vendors to meet the information and performance requirements of this agency.” After reviewing the voluminous record, we conclude that the evidence on which the board rested its decision was appropriately reliable and had substance from which the board could responsibly find that Nickel Hill’s description of the proposed generating facility and its environmental impacts were substantially accurate and complete. Thus, the board made the required ultimate finding.
3. Substantial evidence. The interveners argue that the board’s decision and subsidiary findings in five areas were not supported by substantial evidence. See G. L. c. 164, § 69R The hearings before the board were conducted in accordance with the provisions of G. L. c. 30A. See G. L. c. 164, § 69JV4, fourth par. In that context, substantial evidence is evidence that “a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6). See Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 678 (1975). We address the interveners’ specific claims under this standard.
The interveners also claim that there are inconsistencies between estimates of Nickel Hill and Siemens-Westinghouse, one of its potential vendors of the “G-class” turbines, as to NOx emissions. There are no inconsistencies. Siemens indicated that NOx emissions from the “G-class” turbines would be 2.5 ppm. Nickel Hill stated that NOx emissions from the generating facility would be two ppm. Nickel Hill’s estimate was based on the use of supplemental SCR technology if Siemens-Westinghouse could not guarantee NOx emissions of two ppm. A similar result obtains for the interveners’ contention regarding VOC emissions of one ppm, the LAER for VOC consistent with recent department approvals. Nickel Hill was committed to working with the selected “G” turbine manufacturer to ensure that LAER for VOC could be met. The board required Nickel Hill to meet all of its estimates as a condition of the permit. There was substantial evidence to support the board’s findings.
The interveners contend that, because Nickel Hill’s natural gas supplier would only guarantee a sulfur content of not less than twenty grains of sulfur per one hundred cubic feet of gas, Nickel Hill’s reliance on a sulfur content of 1.07 grains per one
The interveners also misconstrue the evidence regarding the effect of plant startups due to maintenance, estimated by Nickel Hill to be approximately twenty “hot starts” (startups following a shutdown of less than two days) each year, up from a preliminary estimate of six “hot starts.” Nickel Hill offered testimony that there would be no significant environmental impact between six and twenty “hot starts,” in contrast to the negative impact of “cold start” (startups following a shutdown of more than three days). There was no contrary testimony. On appeal, the interveners contend that, without differentiating between “hot” and “cold starts,” startups would have an impact. The argument is in the abstract and it is not based on testimony about the operation of the proposed generating facility. Similarly unpersuasive is the claim that Nickel Hill changed its position about the increase in the number of “hot starts” based solely on general discussions. The discussions were anything but general, as the testimony indicated. A team of experts had been engaged in an ongoing process over a period of several months, constantly reevaluating new and changing data regarding the capability of the advancing technology. Contrast Massachusetts Mun. Wholesale Elec. Co. v. Energy Facilities Siting Council, 411 Mass. 183, 199-200 (1991). The board could properly rely on this testimony, and we must give “due weight to the experience, technical competence, and specialized knowledge” of the board. G. L. c. 30A, § 14 (7). See id. at 199. The interveners have failed to show that the board’s decision as to air emissions was invalid.
(b) Minimization of environmental impacts (air quality). The interveners argue that the evidence does not support the board’s finding that the air quality impacts of the proposed generating facility would be minimized. The interveners imply that minimization means that the proposed facility must be shown to
The board found that Nickel Hill had incorporated measures specifically designed to reduce emissions, including the use of natural gas as fuel, a full GEP stack height of 170 feet, and the SCR system. The board noted that the proposed generating facility would be required to achieve LAER for NOx and VOC emissions, and to employ BACT for CO, S02, and particulate matter ten microns or less in size, with the precise emission rates to be determined by the department.
The board further found that Nickel Hill had used accepted air modeling protocols to estimate the level of various pollutants that will be in the air when the proposed generating facility is in operation, that the facility “would not cause local air quality to significantly worsen, as compared to established air quality standards,” and that “impacts from the proposed facility would be below SILs [significant impact levels] for all [NAAQS] criteria emissions.” The board concluded that the use of natural gas as the exclusive fuel, combined with the 170-foot stack height, would minimize S02 impacts in Lawrence, a finding the interveners do not challenge. Contrary to the interven-ers’ assertion, the board did not rely on Nickel Hill’s intention to make use of offsets and displacement of older power plants in reaching its conclusion.
The board also required Nickel Hill to devise a specific mitigation measure with respect to carbon dioxide (C02) because C02 is the only pollutant emitted by new generating facilities that is not regulated by the department. See 310 Code
(c) Noise. The interveners challenge the adequacy of the board’s finding that Nickel Hill’s plan minimizes noise impacts consistent with minimizing the cost of mitigation. The evidence showed that the operation of the proposed generating facility would result in a maximum increase of six decibels (dBA) over existing noise levels at the closest residences to the north, northeast, and southeast, and a maximum increase of four dBA at another residence to the southeast, using a measure of the sound level that is exceeded ninety per cent of the time. An increase of three dBA is the minimum increase in sound level that is generally perceptible to the human ear. The department Policy 90-001 (Jan. 16, 1990) limits noise increases at property lines and nearest residences to ten dBA above background levels.* *
The record indicates that the cost of reducing the noise impacts from six to three dBA would be in excess of $14 million, and over $28 million to reduce the noise from six to zero dBA. The board concluded that limiting noise increases from the proposed generating facility beyond the measures proposed by Nickel Hill “would not provide sufficient benefit to warrant the significant additional cost,” and that noise from “operation of the proposed facility as designed would be minimized, consistent with minimizing cost of mitigation.”
The interveners further challenge Nickel Hill’s proposed
The findings of the board concerning noise impacts are supported by substantial evidence, and they are entitled to due deference. See Massachusetts Mun. Wholesale Elec. Co. v. Energy Facilities Siting Council, 411 Mass, at 199. The interveners have failed to show that these findings are invalid.
(d) Traffic safety issues. The interveners argue that the board’s finding that Nickel Hill had minimized safety risks was unsupported by substantial evidence, in two respects. They first challenge the credibility of Nickel Hill’s traffic expert. Credibility determinations are a matter for the board that will not be set aside unless shown to be arbitrary or unsupported by substantial evidence. See Zachs v. Department of Pub. Utils., 406 Mass. 217, 224-225 (1989). There has been no showing that the board’s acceptance of the testimony was invalid. Based on the witness’s testimony and the documentary traffic analysis presented by Nickel Hill, the board found that operation of the proposed generating facility “would create minimal additional traffic.” Moreover, the board noted that Dracut found that the proposed relocation of the industrial park access road would likely improve traffic safety. The board’s finding was supported by substantial evidence.
The second issue involves the transportation of liquid ammonia in tankers to the proposed generating facility. The board limited deliveries to the hours between 3 a.m. and 6 a.m., when traffic is light. Concluding that the probability of a spill is small, based on Nickel Hill’s model of a hypothetical spill, the board required Nickel Hill to develop an emergency response plan in conjunction with Dracut and Methuen to cover such a contingency. The interveners have failed to show that these measures do not minimize environmental impacts or that the board’s findings were not supported by substantial evidence.
The interveners again rely on Point of Pines Beach Ass’n v. Energy Facilities Siting Bd., 419 Mass. 281, 285 (1995), for the proposition that an agency must make the required ultimate findings and may not abdicate its responsibility to other agencies. The board made all the necessary ultimate findings, and its ultimate findings were supported by substantial evidence.
The board’s determination that it would not require SCONOx technology was based on its analysis that SCONOx technology would not minimize environmental impacts consistent with the minimization of costs associated with mitigation. That determination was properly within the board’s jurisdiction. See G. L. c. 164, § 69JV4, fifth par. The board went on to note that the department might nevertheless require the use of SCONOx technology as the BACT or LAER technology for a particular pollutant, in which case Nickel Hill would have to return to seek an amendment to its permit. The decision to require SCONOx technology as BACT or LAER for a pollutant is a decision for the department, as regulator of air emissions,
The board must consult the department’s decisions about BACT or LAER, when, under its rulemaking authority, it establishes a technology performance standard (TPS) for a given year. TPS, in turn, can be used only “to determine whether a petition . . . shall include information regarding other fossil fuel generation technologies,” a requirement that has no application here. See G. L. c. 164, § 69JV4, second par. Outside
The board did not delegate its responsibility, nor did it fail to make any required factual finding. Its findings in this area were supported by substantial evidence.
4. Site selection process. The interveners argue that the board’s review of Nickel Hill’s site selection process was improperly limited to whether the description of the process was accurate. They contend that the board had the further obligation to conduct what they describe as a “substantive investigation into the site selection process,” including a “determin[ation] that the selection process itself contributes to a reliable power source for the Commonwealth with minimum environmental impacts consistent with the minimization of cost.” The interveners cite no authority in support of their position. The board’s duties with respect to site selection review are limited to a determination whether “the description of the site selection process used is accurate.” G. L. c. 164, § 69JV4, fifth par. It is not argued that Nickel Hill’s description of that process was not accurate.
There is no merit to the interveners’ further claim that the board improperly precluded inquiry into advantages and disadvantages of the proposed site over other available sites. Section 69JV4, fifth par., expressly states that “[n]othing in this chapter shall be construed as requiring the board to make findings regarding the need for, the cost of, or alternative sites for a generating facility.”
5. Procedural errors. The interveners, but chiefly Merrimack Valley Residents for the Environment, Inc. (MVRE), argue in cursory fashion that the board precluded cross-examination or discovery into eight areas of testimony, in violation of 980 Code Mass. Regs. § 1.04(4)(a) (1993).
(a) The restriction of cross-examination into matters of cost
(b) MVRE received those portions of Nickel Hill’s term sheet governing its lease of the site pertaining to environmental impacts. Other portions, particularly those relating to cost, were not relevant to the proceedings and therefore were not discoverable. See G. L. c. 164, § 69H (“the board shall review only the environmental impacts of generating facilities”), § 69E/4.
(c) MVRE’s cross-examination of an expert witness retained by Nickel Hill concerning conversations with Nickel Hill’s attorney was excluded on the basis of the attorney-client privilege. The discussion does not rise to the level of adequate appellate argument, and we do not consider it. See Mass. R. A. R 16 (a) (4), as amended, 367 Mass. 921 (1975).
(d) Cross-examination into the comparative cost of air emissions and noise mitigation measures, and the cost of the project, was excluded. We are unable to address the issue because the interveners have provided no record reference.
(e) MVRE argues that the hearing officer improperly struck or limited most of its direct case, and improperly refused its request to introduce rebuttal testimony. The portions struck included a lengthy legal argument by counsel, together with supporting materials. The material was not evidence and was properly struck. Other exhibits were properly struck after MVRE •failed to designate an expert witness whose testimony was needed to give foundation for and to explain the exhibits.
MVRE’s request for an opportunity to present rebuttal testimony was not rejected, but was in fact honored, and MVRE was given five weeks to submit the testimony. When MVRE offered the testimony, after the deadline, the hearing officer excluded the evidence, not on ground that it was not timely, but because it was irrelevant and not proper rebuttal evidence. MVRE has offered no authority suggesting that the ruling was invalid.
(f) The hearing officer acted within her discretion by refusing to extend discovery after MVRE failed to act within the time allowed. We need not consider MVRE’s naked assertion, unsupported by any authority or reasoned argument, that the hearing officer denied portions of its motion to compel discovery.
(h) The hearing officer properly sustained an objection to continued cross-examination of a Nickel Hill expert witness on which portions of a document had been written by which authors, after the witness testified he could not say. The question was answered and its impeachment value established as to that point. Pressing the matter had little or no value, other than to harass the witness and waste time. Counsel was not precluded from using the document to impeach the witness for other purposes, as the witness had adopted the entire document as a comprehensive statement of his own views.
There was no violation of the interveners’ procedural rights under 980 Code Mass. Regs. § 1.04(4)(a).
6. Nickel Hill’s standing. There is no merit to the argument that Nickel Hill lacks standing to petition for a permit to construct the proposed generating facility at the selected site because it had not secured an ownership, leasehold, or other interest in the site. The statute does not require such an interest.
The decision of the board is affirmed.
So ordered.
The interveners were granted full party status by the hearing officer, a decision that has not been challenged on appeal. Cf. Tofias v. Energy Facilities Siting Bd., ante 340 (2001).
A generating facility is defined as one “designed for or capable of operating at a gross capacity of 100 megawatts or more.” G. L. c. 164, § 69G.
Evidence was presented that the department had approved “G” technology turbines for two combined-cycle projects using turbines manufactured by Mitsubishi Heavy Industries, and that Mitsubishi had committed to emissions of volatile organic compounds (VOC) of less than one part per million (ppm), a subject of particular concern to the interveners.
See 40 C.F.R. Part 50 (2001). The department has adopted the same standards. See 310 Code Mass. Regs. §§ 6.00 (1994).
Generally, an “offset” is a type of credit, approved by the department, that would permit a proposed facility to exceed allowable levels of emissions of a particular pollutant in exchange for a reduction of the same or another pollutant at the same or some other facility, and producing a net air quality benefit in the affected area. See 310 Code Mass. Regs. §§ 7.00 Appendix A.
The department’s air quality plan approval process serves as the State’s method for noise impact review. See 310 Code Mass. Regs. §§ 7.00, 7.10; Policy 90-001 (Jan. 16, 1990).
A waiver of Policy 90-001 will be required for the ten-decibel property line limit with respect to an adjacent nonresidential receptor, but this does not affect any of the residential receptors.
See 310 Code Mass. Regs. § 7.02 (2) (a) (2) (g) (1994); 310 Code Mass. Regs. §§ 7.00 Appendices A and B. See also 42 U.S.C. §§ 7479(3), 7501(3) (1994).
Titie 980 Code Mass. Regs. § 1.04(4)(a) (1993) states: “All parties shall have the right to introduce both oral and documentary evidence. All witnesses shall testify under oath . . . and shall be subject to cross-examination.”