Box Pond Association v Energy Facilities Siting Bd.
| Decision Date | 23 November 2001 |
| Docket Number | 08452 |
| Citation | 435 Mass. 408 |
| Parties | BOX POND ASSOCIATION & others(FN1) vs. ENERGY FACILITIES SITING BOARD & another(FN2) (and a consolidated case).Massachusetts Supreme Court |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
County: Suffolk.
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
Summary: Energy Facilities Siting Board. Public Utilities, Electric company, Judicial review. Environment, Noise. Administrative Law, Agency's interpretation of statute, Evidence, Hearing. Subpoena. Witness, Expert. Evidence, Administrative proceeding, Hearsay.
Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on January 27, 2000, and September 22, 2000, respectively.
After consolidation, the case was reported by Greaney, J.
Kenneth L. Kimmell (Cristin L. Rothfuss with him) for the plaintiffs.
Pierce O. Cray, Assistant Attorney General, for the defendant.
John A. DeTore (Maribeth Ladd with him) for the intervener.
IDC Bellingham, LLC (IDC), filed a petition pursuant to G. L. c. 164, § 69J, with the Energy Facilities Siting Board (board) to construct and operate a net nominal 700-megawatt natural gas-fired, combined-cycle, electric generating facility on a 156-acre site in Bellingham.3 IDC also acquired rights to purchase a sixty-five acre parcel of land in the town of Mendon (Mendon) abutting the Bellingham parcel, which IDC stated would be maintained as an undeveloped buffer between the facility and the neighboring businesses and residences in Mendon. After extensive hearings, IDC's petition was approved. Box Pond Association (BPA), Concerned Citizens of Bellingham (CCOB), and Joan Eckert (Eckert), interveners in the proceedings (collectively, interveners), appealed to the single justice, raising several issues concerning the procedural conduct of the hearings.4 The single justice reserved and reported the matter to this court. We affirm the decision of the board.
1. Statutory and regulatory background. The board's review of electric generating facilities is governed by G. L. c. 164, §§ 69H and 69J. The board is to perform its functions "so as to provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost." G. L. c. 164, § 69H. The board is required to approve a petition to construct a generating facility within one year of the filing date if the petition meets the statutory requirements. G. L. c. 164, § 69J.
The board's review of generating facilities is an adjudicatory proceeding "under the provisions of chapter 30A," the Massachusetts Administrative Procedure Act, see G. L. c. 164,
§ 69J, and the board has adopted rules for the conduct of these proceedings. 980 Code Mass. Regs. §§ 1.00 (1993). Pursuant to these rules, the hearing officer is authorized to hold hearings on petitions filed under G. L. c. 164, § 69J, and is delegated broad authority in governing such proceedings. The hearing officer may issue subpoenas, administer oaths, and in general determine the course and conduct of the hearings. 980 Code Mass. Regs. § 1.04. Other than in circumstances not relevant here, the hearing officer proposes a tentative decision for the board's consideration. 980 Code Mass. Regs. § 1.06 (3). The board renders a final decision "after considering the tentative decision and all timely-filed comments and supporting arguments." 980 Code Mass. Regs. § 1.06 (5).
2. Procedural background. IDC filed its petition with the board on November 18, 1997. A public hearing was held in Bellingham on March 11, 1998. Numerous individuals and entities were permitted to intervene in the proceedings, including the petitioners in the present appeal. See G. L. c. 30A, § 10; 980 Code Mass. Regs. § 1.05 (2) and (3).
Thirteen days of evidentiary hearings were conducted between April 14 and May 26, 1999.5 The board issued a final decision on December 21, 1999, approving IDC's petition subject to specific conditions. Aware of the possibility that IDC's choice of turbine might change at a later date, the board in its final decision directed IDC to submit information about any change in turbine as a "compliance filing." Such a filing would enable the board to determine whether the change in turbine warranted new discovery and hearings. The interveners appealed from the final decision pursuant to G. L. c. 25, § 5, as permitted by G. L. c. 164, § 69P.
After the final decision was issued, IDC submitted a compliance filing to the board indicating that, in place of two Siemens Westinghouse turbines, it intended to use two General Electric turbines. The main reason for the turbine change was IDC's inability to purchase the Siemens Westinghouse turbines with manufacturer guarantees that the turbines would meet the proposed facility's emissions limits. IDC also stated that in addition to changing to General Electric turbines, it would reconfigure the proposed electric generating facility so that the net nominal electrical output of the facility would be reduced from 700 megawatts to 525 megawatts.
The hearing officer issued a ruling on March 31, 2000, defining the scope of the compliance proceeding and establishing a procedural schedule. After four days of evidentiary hearings, the board issued a final decision on September 12, 2000, again approving IDC's petition subject to specific conditions. The interveners appealed from the compliance decision pursuant to G. L. c. 25, § 5, as permitted by G. L. c. 164, § 69P. IDC's motions to intervene in both appeals were allowed by the single justice who consolidated the cases and reserved and reported the appeals to the full court.
On appeal, the interveners argue that (1) the hearing officer abused her discretion by refusing to grant intervener Eckert's request for a six-week extension to retain a noise expert, when allied intervener Mendon withdrew its noise expert, Michael D. Theriault (Theriault), two business days before he was scheduled to testify on the noise impact of the power plant; (2) the hearing officer violated the board's regulations and abused her discretion by revoking a subpoena compelling Theriault to testify at the hearing; (3) the board erred by giving Theriault's testimony "only limited weight" and considering it only "for the sake of completeness"; (4) the board erred in the compliance decision in refusing to consider the testimony of Gregory C. Tocci (a second noise expert retained by the interveners); and (5) the hearing officer abused her discretion in denying the interveners' motion to reopen the proceeding to take additional evidence on the commercial availability of new air pollution control technology.
3. Standard of review. Any party aggrieved by a decision of the board may seek judicial review in the Supreme Judicial Court. G. L. c. 164, § 69P. G. L. c. 25, § 5. "Our review of petitions under G. L. c. 25, § 5, is limited, although not perfunctory." Stow Mun. Elec. Dep't v. Department of Pub. Utils., 426 Mass. 341, 344 (1997), quoting Wolf v. Department of Pub. Utils., 407 Mass. 363, 367 (1990). We shall uphold the board's decision unless it is demonstrated that "it is based on an error of law, unsupported by substantial evidence, arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Stow Mun. Elec. Dep't v. Department of Pub. Utils., supra, citing Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867-868 (1997). The plaintiffs have Wolf v. Department of Pub. Utils., supra, quoting Costello v. Department of Pub. Utils., 391 Mass. 527, 533 (1984).
4. Rulings concerning Mendon's noise expert. The board is required to evaluate the noise impact from proposed generating facilities to determine whether the plans for the facility "minimize the environmental impacts consistent with the minimization of costs." G. L. c. 164, § 69J. The board reviews the noise impacts of a proposed facility for general consistency with applicable government regulations, including the Department of Environmental Protection Policy 90-001 (Jan. 16, 1990), which limits increases from new noise sources to ten-decibels (dBA). Moreover, the board considers the significance of expected noise increases which, although lower than ten dBA, may adversely affect existing residences or other sensitive receptors.
Mendon retained an expert in acoustics, Theriault, who conducted an ambient sound level survey at two residential locations in Mendon. Theriault concluded in his prefiled testimony(6) that the proposed facility did not meet regulatory noise standards. Two business days before Theriault was scheduled to testify at the evidentiary hearings, IDC and Mendon entered into a settlement pursuant to which Mendon agreed to withdraw as an intervener and to withdraw all of Theriault's prefiled testimony. Many of the interveners' claims stem from the fact that they had been relying on Theriault's testimony and were left without such an expert by Mendon's unexpected withdrawal from the proceedings. We conclude that each of the challenges lacks merit.
a. Six-week extension request. When Mendon withdrew, Eckert filed a request for a six-week extension to retain a noise expert to provide the type of measurements and analyses previously furnished by Theriault. The request was denied. The interveners claim that the hearing officer's denial of the request for an extension was arbitrary and capricious, and failed to take into account relevant facts.
The decision whether to grant a motion to continue lies within the sound discretion of the hearing officer or the board. 980 Code Mass. Regs. § 1.02 6 See Foote v. Process Equip. Co., 353 Mass. 755 (1967). Cf. Commonwealth v. Super, 431 Mass. 492, 496-497 (2000). The refusal to grant a continuance will not constitute...
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