These consolidated cases involve appeals from several decisions of the Department of Environmental Quality Engineering (DEQE) pursuant to G. L. c. 30A, § 14. The decision of November 30, 1979, approved construction of that portion of a plan submitted by Medical Area Total Energy Plant, Inc. (MATEP), involving production of steam and chilled water in the Mission Hill area of Boston bordering the town of Brookline. The decision of May 27, 1980, disapproved construction of the other portion of the MATEP facility, involving production of electricity by six diesel engine generators. The decision of November 24, 1980, approved the diesel portion of the facility, subject to certain conditions. The town of Brookline and a group of residents of Brookline (Brookline opponents), and Michael Lambert (Mission Hill opponent)
Petitions for judicial review were filed in the Superior Court, consolidated, and reported to the Appeals Court pursuant to Mass. R. Civ. P. 64,
Facts. MATEP submitted, in January, 1977, an application to the DEQE for required preconstruction approval of its plan to build a cogeneration energy facility in the Mission Hill area. See 310 Code Mass. Regs. 7.02 (2) (1979). The plant would provide steam, chilled water, and electricity for hospitals, educational and research institutions, and the
It is principally the emissions and effects of the emissions from the diesel portion of the facility which are the subjects of this appeal. The diesels will emit quantities of oxides of nitrogen (NOx). The most common oxide emitted will be nitric oxide (NO). The NO will rise in the atmosphere and combine with ozone to produce nitrogen dioxide (NO2). The NO2, a harmful pollutant, will return to the earth’s surface. On January 31, 1978, the diesel portion of the facility was disapproved because it would have resulted in higher NO2 levels than the DEQE then thought allowable to protect the public health.
The Brookline opponents requested an adjudicatory hearing on the decision approving the steam/chilled water portion of the facility. MATEP requested an adjudicatory hearing on that part of the decision disapproving the diesel portion of the plant. The requests for adjudicatory hearings were granted, and the hearings were combined. Michael Lambert and several local groups (the Mission Hill interven-ers) were granted leave to intervene.
The hearing began in late 1978 and continued for over twenty-three days. The hearing officer, Ellyn Weiss, issued a tentative decision. After considering comments on Weiss’s decision, the DEQE, through Deputy Commissioner David Fierra, issued a final decision on November 30, 1979, approving the steam/chilled water portion of the facility and disapproving the diesel portion. In that segment of the decision disapproving the diesel portion of the facility, Fierra
In January, 1980, MATEP submitted a revised plan. Although most aspects of this plan were approved, the diesel portion was again disapproved because the DEQE found that it had insufficient data to determine whether the plan would violate the guidelines with respect to some heavily trafficked areas (“hot spots”).
On petition of MATEP, the DEQE held a hearing on the “hot spot” issue, which was presided over by both Weiss and Fierra. Following the hearing, on November 24, 1980, the DEQE issued a decision approving the diesel portion subject to certain conditions.
In addition to NOx, the diesel portion of the MATEP facility will emit quantities of particulates which include some particles of substances that are thought to be carcinogenic or mutagenic (polycyclic aromatic hydrocarbons [PAH], polynuclear organic matter [POM], and trace metals) . The DEQE, for reasons described later in this opinion, declined to make findings on the issues raised by the potentially carcinogenic and mutagenic emissions.
Before us are appeals in which the DEQE is defending its decision, MATEP is arguing for fewer controls, and the opponents are arguing for greater controls. For reasons appearing below, we are remanding the case to the DEQE for hearings on the carcinogen and mutagen issue, and affirming all other portions of its decision.
MATEP’s Challenge.
1. Vagueness of regulation. MATEP’s first attack on the DEQE decision is that the regulation on which the decision is based, 310 Code Mass. Regs. 7.01 (1979), is so vague that it failed to give fair warning as to what the standards for the
The regulation in question states: “No person owning, leasing, or controlling the operation of any air contamination source shall willfully, negligently, or through failure to provide necessary equipment or to take necessary precautions, permit any emission from said air contamination source or sources of such quantities of air contaminants which will cause, by themselves or in conjunction with other air contaminants, a condition of air pollution.” 310 Code Mass. Regs. 7.01 (1979). “Air pollution” is defined in the regulations as the presence of air contaminants which would: “a. cause a nuisance; b. be injurious, or be on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or c. unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business.” 310 Code Mass. Regs. 7.00 Definitions (1979).
MATEP contends that the above regulatory language im-permissibly fails to give fair notice of what levels of emissions will be tolerated. MATEP argues that so much administrative discretion is placed in the DEQE by the regulation that MATEP had no way of knowing during the design phase of the project whether, in the opinion of the agency, emissions from the diesels would “unreasonably interfere with the confortable enjoyment of life.” To buttress its argument, MATEP points to the variance in the levels of NOg that the DEQE was willing to accept during the years of hearings on the project. In 1977, the DEQE, before public hearings, proposed to accept a NO2 one-hour exposure
We note first that the regulation of business and economic activity is subject to a vagueness test less strict than that applied to most criminal behavior. Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra. Papachristou v. Jacksonville,
A vague rule subjects people to an unascertainable standard. Coates v. Cincinnati,
2. NO¿ standard derived in adjudicatory proceeding. MATEP’s second attack on the DEQE decision is an assertion that the DEQE abused its discretion by formulating an acceptable NOg level for the MATEP project in an adjudicatory hearing rather than by a formal rulemaking procedure. We disagree.
Like any administrative agency, the DEQE may, at its discretion, announce and apply new rules and standards in an adjudicatory proceeding. SEC v. Chenery Corp.,
MATEP had myriad opportunities to introduce evidence on the NO2 issue. Furthermore, in the rapidly evolving field
We do not agree with MATEP. If we were to construe c. 494 as MATEP urges, significant portions of the statute would be rendered meaningless. “Where it is possible, . . . a statute should be construed so as to avoid rendering words in that statute meaningless.” A Juvenile, petitioner,
Rather, we read the language “minimize the economic cost of such standards” in light of the over-all statutory mosaic. See Pereira v. New England LNG Co.,
1. Carcinogens. The opponents’ first attack on the DEQE order involves the failure by the DEQE to consider evidence or to make findings on certain supposedly carcinogenic substances.
A brief review of the sequence of events in this case will explain our remand. MATEP filed its application with the DEQE for approval of its proposed facility on January 24, 1977. On January 31, 1978, the DEQE denied approval of the diesel portion of the project. On February 10, 1978, MATEP requested an adjudicatory hearing with respect to the DEQE decision. The opponents, and others, filed petitions to intervene which were granted as to the opponents. All parties were given until August 28, 1978, to file specifications of issues and lists of witnesses.
In their memorandum regarding issues and witnesses, the Brookline opponents included Dr. William Balgord and stated that his testimony would be “on the interactions of N02 and particulate emissions from the MATEP diesels, and the potential carcinogenic effects of these emissions from the MATEP plant.” Mr. Lambert, the Mission Hill opponent, raised an issue in his memorandum in the following way: “What studies conclusively show that diesel emissions, as opposed to NOx or N02, in these qualities [sic] are not injurious to the public health and welfare of populations
While it is true that the matter of carcinogens was not mentioned in the opponents’ petitions to intervene, that is not dispositive of this issue. Rather, we look to the specifications of issues, modified, at least with respect to Mr. Lambert, by the September 11 memorandum. We hold that Mr. Lambert’s list of possible carcinogens identified those substances as issues before the DEQE, especially as the Brookline opponents also manifested concern with potential carcinogens. This court would not lightly overturn an administrative agency’s finding of fact, but we are convinced, from a close reading of the record, that the issue of carcinogens was properly before the DEQE.
2. Rehearings. The opponents’next attack on the DEQE decision involves an alleged denial of their due process rights by the agency’s refusal to grant a rehearing on the issues of (1) whether the guidelines in the final decision dated November 30, 1979, were adequate to protect the public health, and (2) whether MATEP’s revised 1980 diesel plan met those guidelines.
The opponents argue that the guidelines announced went far beyond the scope of evidence introduced in the adjudica
We note, initially, that the granting of a rehearing is discretionary with the agency. 310 Code Mass. Regs. 1.01 (10)(o) & (p) (1979). Cf. ICC v. Jersey City,
As to the guidelines, the opponents had the opportunity to make written submissions. Furthermore, the guidelines were merely conditions of approval permitted by 310 Code Mass. Regs. 7.02 (2)(c) (1979) to protect the public health. They were based on the record developed at the adjudicatory hearing. We defer, here, to the agency’s application of the regulation. See School Comm. of Boston v. Board of Educ.,
Likewise, the opponents are not entitled to a rehearing merely because the plan approved by the DEQE differed from that originally submitted. Had the plan approved differed so radically from the original that the opponents were, in fact, deprived of the opportunity to argue against it, their due process rights might have been violated. However, the DEQE determined that the revised plan raised no issues that were not subject to the prior hearings. Furthermore, the opponents were afforded, and took advantage of, an opportunity to submit written comments on the final plan. In such circumstances, we will not overrule the agency’s determination that a rehearing is not necessary.
3. Burden of proof. The opponents next argue that their due process rights were violated when the DEQE improperly shifted the burden of proof on the issue of the proportion of NO which could be expected to be converted to the pollutant NOg. Briefly, the Environmental Protection Agency (EPA) has a guideline that calls for the use of an assumption of 100% NOx to NO2 conversion when using a screening model for determining annual average impact of NO2. That guideline is inapposite to the MATEP hearings, however, because the DEQE was neither utilizing a screening model nor applying the estimate of conversion to an annual average.
We are convinced that the DEQE did not abuse its discretion by determining that, for the purposes of the MATEP plant, an 81 % conversion of NOx to NO2 would be utilized. The record shows that the 81 % figure was the highest proportion introduced by any of the technical experts who testified. We leave it to the DEQE to make this determination, especially as it is so clearly within the ambit of its expertise. See School Comm. of Boston v. Board of Educ.,
Assuming, arguendo, that MATEP must carry the burden of proving the facility is not a health hazard, that burden was not shifted to the opponents. Rather, voluminous evidence was introduced tending to show that the proportion should be no greater than 81 %. By asking the opponents if they had any evidence rebutting the 81 % figure, the DEQE did not shift the burden of proof. Rather, it was merely at
4. Hot spots. The opponents next argue that the DEQE finding that MATEP’s emissions would not harm public health at numerous “hot spots”
A. Disregard of the DEQE’s guideline. In the final decision of May 27, 1980, disapproving MATEP’s diesel plan, the DEQE found that MATEP had not provided for sufficient reduction in diesel emissions when they were causing or contributing to levels of N02 above 320 ug/m3 at hot spots. The DEQE promulgated a guideline
Brookline’s opposition to the revised guideline stems principally from the testimony of the DEQE staff employee who proposed the revised standard. He stated that, since motor
We note first that the declared rationale for the revised guideline was that it was “based upon the most recent method used by the Environmental Protection Agency (EPA) to set short-term air quality standards.” (The EPA had revised its one-hour ozone standard to allow more than one hourly exceedance a year if all exceedances occur on the same day.) The final decision adopting the revised guideline found this standard to be reasonable, and we will not disturb this finding, based, as it is, on the agency’s expertise. We hold that the use of identical limits by the EPA and the DEQE in their ambient air quality standards for ozone (40 C.F.R. § 50.9 [1981]; 310 Code Mass. Regs. 6.04 [4][1980]), a pollutant more toxic than N02, is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6), inserted by St. 1954, c. 681, § 1. Katz v. Massachusetts Comm’n Against Discrimination,
Secondly, there appears to be a difference of opinion on the likelihood of the reduction in automobile NOx emissions. Even if we disagree with the DEQE’s projection of a reduction of such emissions, there is sufficient evidence in the record supporting the agency’s view so that we will not disturb it. “A court may not displace an administrative board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de nova.” Labor Relations Comm’n v. University Hosp.,
The DEQE set certain standards of NOg levels at hot spots which, if exceeded, would compel MATEP to reduce diesel emissions. The ability to reduce satisfactorily such emissions was a prerequisite to approval of the MATEP diesel facility. Thus, the DEQE had to identify potential hot spots for monitoring purposes. Brookline urged that two areas, Cleveland Circle and the intersection of Washington and Beacon Streets, be included in the list of hot spots.
Extensive evidence was taken on the criteria which should be utilized in the identification of hot spots. Much of this evidence supports Brookline’s view. However, there was also evidence pointing to the exclusion of the two areas from the list of hot spots. That some of this evidence may have been hearsay is not, of itself, ground for objection. G. L. c. 30A, § 11 (2). 310 Code Mass. Regs. 1.01 (10)(g) par. 2 (1979). See Goodridge v. Director of the Div. of Employment Sec.,
C. Significance of MATEP’s impacts on hot spots. The DEQE’s guidelines for hot spots included an element providing that, when NO2 levels at a hot spot exceed 320 ug/m3, MATEP must reduce its diesel operation to such a
The opponents argue that the level of significance should be set at 1% of the N02 limit, or 3.2 ug/m3. They derive this figure from EPA’s conclusion that, in areas not attaining the annual N02 standard of 100 ug/m3, new source impacts of less than 1 ug/m3 are insignificant. The DEQE rejected the 1 % figure and adopted, instead, a level of net
D. Method of accounting for missing hours. As discussed above, approval of the diesel facility was based in part on assurance that MATEP would not be expected to contribute a significant impact to one-hour N02 levels in excess of 320 ug/m3 at any particular hot spot location on more than one day a year. Such assurances were based on a comparison of actual data as to N02 levels with a computer model of the potential impact by the MATEP diesel facility.
Since the device monitoring N02 was not operating continuously, the data upon which the DEQE relied accounted for only 48 % of all the hours over the data base period from November, 1973, to August, 1979. Brookline argues, consistent with an EPA formula, that the missing hours should
E. Trigger mechanism at Route 9 hot spot. In response to a recognition that the MATEP diesel facility will, under normal operating procedures, cause or contribute to NOg levels above 320 ug/m3 at certain times, MATEP’s plan, accepted by the DEQE, provides for a NOg monitor at one of those locations (Route 9) with a trigger mechanism to activate reduction in diesel operation when 250 ug/m3 is reached and the wind is blowing from the facility toward Route 9. Brookline argues that the trigger mechanism will be ineffective in performing its intended function. We have reviewed the evidence and hold that there is substantial support in the record for the DEQE determination that the trigger mechanism would operate to reduce MATEP’s NOx impacts at hot spots sufficiently to protect public health.
Brookline argues further that the trigger system, an intermittent control of pollution, is impermissible as opposed to a permanent control. The EPA has determined that, in meeting Federal air quality requirements, new sources such as MATEP may not utilize intermittent controls.
5. Tentative decision. The adjudicatory hearing on the hot spots issue held from September 16 through September 19, 1980, was jointly conducted by Ellyn Weiss, who had been the hearing officer at the prior hearings, and by DEQE Deputy Commissioner Fierra. Following the hearing, Fierra wrote and issued a final decision without Weiss’s issuing a tentative decision. The Brookline opponents claim that this procedure violated their due process rights because it did not follow the procedure delineated in Rules 38 and 40 of the Rules of Procedure applicable to the MATEP proceeding.
We believe that the purpose of rules 38 and 40 is not to require a tentative decision in the circumstances of this case. When the decisionmaker officiates at the hearing, even if accompanied by a person designated as hearing officer, it serves no purpose to insist on a tentative decision. Rather, it is when the decisionmaker is absent from the hearing that a tentative decision which identifies issues and resolves questions of credibility is useful.
We hold that the due process rights of the opponents were not violated by the failure of the DEQE to require a tentative decision in this case.
6. Other objections. We have examined the other issues raised by the Mission Hill opponent. Most of them concern the sufficiency of evidence upon which the DEQE based its decision. We hold there was sufficient evidence. Further, that a piece of equipment was approved for use in MATEP when such approval was not sought is harmless error, especially when the mistake was corrected in a later decision. Other Mission Hill objections are not relevant to the issues before this court.
Conclusion. This case is to be remanded by the Superior Court to the DEQE for a determination of the potential adverse health effects of the carcinogenic and mutagenic emissions from the MATEP diesel facility. All other aspects of the DEQE decision are to be affirmed.
So ordered.
Notes
The Brookline opponents and Mission Hill opponent will be collectively referred to as “opponents” in this opinion.
The Superior Court judge reported the case without making findings. In his order he observed that the DEQE findings were sufficient to report a case where the judge was viewing only the written record but was “uncertain, as a matter of law, which party ought to prevail.” No party challenges the report of the case. In such circumstances, and without deciding the propriety of a report such as this if it were challenged by a party, we reach the merits.
The DEQE found that the Federal ambient air standard, which is an annual average of 100 micrograms of NOs per cubic meter of air (100 ug/m3), was inadequate to protect public health. Instead, the DEQE found that N02 levels in excess of 200 ug/m3 (micrograms per cubic meter) on an hourly basis would adversely affect public health. The DEQE found, further, that the predicted MATEP impacts would cause ambient N02 levels to exceed that level.
Upon motion by the DEQE, all the Mission Hill interveners except Michael Lambert were subsequently dismissed as plaintiffs in the Superior Court proceedings.
Micrograms per cubic meter.
DEQE withheld approval of MATEP’s original plan for the diesel facility because it found that emissions of NOx from the plant would result in NOx levels which would endanger public health in violation of 310 Code Mass. Regs. 7.01 (1979).
We note that it was especially appropriate for the DEQE to develop, in an adjudicatory hearing, a standard of NG2 levels to which MATEP must submit. At one point in the hearing process, MATEP claimed that, if a new rule concerning such N02 levels was promulgated, it could not be applied retroactively to MATEP. If MATEP’s argument is correct, and we do not pass on the point, the only manner in which the DEQE could protect the environment from excessive N02 levels was by a standard developed in an adjudicatory hearing.
See SEC v. Chenery Corp.,
MATEP relies on two Ninth Circuit cases to support its view. In the first, Patel v. Immigration & Naturalization Serv.,
The other case that MATEP cites is Ford Motor Co. v. FTC,
Those substances have been identified as including polycyclic aromatic hydrocarbons (PAH), polynuclear organic matter (POM), and trace metals and their derivatives.
Because we are remanding for hearings on this issue, we need not decide whether the DEQE improperly relied on extra-record materials with respect to potential carcinogens. Absent a record on this issue, we also decline to rule on any testing procedures which the DEQE may prescribe with respect to carcinogens.
The opponents’ argument that a rehearing is necessary because the DEQE cannot determine exactly the emission factors of the revised diesel plan likewise must fail. The record indicated to the DEQE that the new
A “hot spot” is a relatively small, highly-trafficked location. The DEQE identified more than twenty-six such areas that might be affected by the MATEP facility.
The guideline required: (a) reduction of MATEP’s diesel operations at all times when MATEP emissions would cause or contribute to NOa levels at any hot spot above 320 ug/m3, and (b) assurances that, when diesel operations are reduced, the limited NOx emissions will not have a significant impact at any hot spot, which would cause or contribute to levels above 320 ug/m3.
The guideline, set forth in the November 24,1980, decision, provided as follows: “In order for a major new source of NOx to comply with DEQE’s policy, it must meet certain requirements. Initially, the source must demonstrate to the satisfaction of the Department that it has installed the Best Available Control Technology for the reduction of NOx emissions. Secondly, it must be shown that the proposed source will not have a significant net impact on any potential hot spot at times when the total hourly N02 concentration at such hot spot is above 320 ug/m3 on more than one day per calendar year. This demonstration must be made at a representative number of potential hot spots within the zone of influence of the proposed source.”
All parties agree that insignificant MATEP impacts at hot spots may be disregarded.
The net figure credits MATEP with the reduction of N02 at hot spots which can be attributed to the retiring of another generating plant replaced by MATEP. We find no fault with such crediting nor with crediting MATEP with the actual reduction in N02 levels, even if such reduction is less than 32 ug/m3.
The DEQE found that the “overwhelming majority” of days on which N02 exceeds 320 ug/m3 occur in the months of May through October.
See Legal Interpretation and Guidelines Concerning Stack Height Increases as a Means of Meeting Federal Ambient Air Quality Standards, Environmental Protection Agency Guidelines Series OAQPA No. 3.0-003 (Jan. 6, 1976).
These are rules promulgated by the Department of Public Health.