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

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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.